- Confidentiality clubs vs restricted information regimes (Libyan Investment Authority v SocGen)
- Practical implications
- The application—background facts
- Summary of key findings
- Risk following disclosure of individuals' identities
- Reasonable and proportionate steps to protect the Alphabet Individuals
- Court details
Dispute Resolution analysis: The Commercial Court has determined an application for an order to set aside a confidentiality club and replace it with a restricted information regime (RIR). In ordering the amendment of the confidentiality club order so as to change the persons to whom the Libyan Investment Authority (LIA) could divulge the confidential information, the court sought to level the playing field between the parties (such that the LIA would not be as restricted in preparing its defence to the claim against it for fraud) while still seeking to protect those individuals found to be at an immediate and real (albeit low) risk to their life, limb and property were their identity to be disclosed. In doing so, the court determined a number of issues including, the extent to which the LIA was entitled to apply to set aside the confidentiality club, the extent to which parties outside the jurisdiction of the European Convention on Human Rights (ECHR) are entitled to protection under ECHR, arts 2, 3 and/or under common law. In addition, the court determined the extent to which the relevant individuals (referred to in the judgment as the Alphabet Individuals) were indeed at real and immediate risk and needed to have their identities protected and what reasonable and proportionate steps ought to be taken to seek to protect any such individuals. As such, this judgment offers practical guidance to practitioners on how courts may approach applications seeking to protect confidential information (and, more particularly, the identity of individuals found to be at immediate risk to life, limb or property) and some ways in which this can be done including by way of confidentiality clubs and/or RIRs.
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