Disclosure – navigating foreign law restrictions

The Commercial Court’s decision in Rusal v Whiteleave & Ors [2026] EWHC 154 (Comm) illustrates what constitutes “control” under disclosure rules in the Business and Property Courts (Practice Direction 57AD) in cases involving complex corporate structures and foreign‑law issues. The judgment arose at the third Case Management Conference where the Court was asked to determine whether the Second Defendant, Mr Potanin, was obliged to disclose documents held by the Russian mining conglomerate PJSC MMC Norilsk Nickel (NN) and 11 of its subsidiaries.

The underlying action concerns allegations by IPJSC United Company Rusal (Rusal) that Mr Potanin orchestrated a series of fraudulent or improper transactions within the NN Group; ranging from alleged diversion of assets, sham marketing payments, misuse of charitable donations, failures in safety governance, and alleged manipulation of digital asset programmes. Rusal also alleges breaches of the Framework Agreement governing shareholder relations and management of NN.

Given the breadth of the claims, much of the potentially relevant material sits inside NN’s corporate systems or those of its subsidiaries. Rusal argued that these documents were within Mr Potanin’s “control” because, as NN’s CEO, he had a right of access to them under Russian law.

The central issue in this judgment was whether documents held by NN and its subsidiaries fell within Mr Potanin’s “control” for the purpose of extended disclosure under Paragraph 1.1 of Appendix I of PD57 AD and relevant case law, which includes documents:

• in a party’s physical possession;
• over which the party has a right to possession, or
• a right to inspect or take copies (“legal control” (Lonhro v Shell [1980] 1 WLR 627)),
• or where a party enjoys practical control through the benefit of an arrangement or understanding (Pipia v BGEO Group Ltd [2020] EWHC 402 (Comm); Ardila Investments NV v ENRC NV [2015] EWHC 3761 (Comm)).

Russian confidentiality laws complicated disclosure because commercial secrets, insider information and personal data are protected.

The Court held that:

1. As CEO, Mr Potanin has a legally enforceable right under Russian law to access NN’s documents, subject only to narrow exceptions (e.g., Russian confidentiality rules).
2. He also had practical control of documents held by 11 named subsidiaries due to shared systems, integrated operations, and historic patterns of documentary access.
3. There was no evidence of any real risk of prosecution under Russian law if disclosure occurred within the protections of English proceedings.
4. A disclosure order was reasonable and proportionate, given the fraud allegations and the upcoming 14‑week trial.
5. However, the Court declined to include a broad “catch‑all” category of further subsidiaries as that would be disproportionate, instead requiring any extension to be justified by future application.

Two of the key points from this case include:

• a CEO can have control over documents held by a company. A party claiming lack of control bears the evidential burden of identifying specific documents/categories outside their reach.
• foreign law issues about giving disclosure do not automatically bar disclosure.  The resisting party must evidence a real risk of sanction.

For more information about the law, technology and practice of disclosure, contact Tom Whittaker,  David Hine or Zac Bourne.

This article was co-authored by Tom Whittaker and Jacob Berger.