French defendants must comply with disclosure order despite risk of criminal sanctions

In National Grid Electricity Transmission plc v ABB Ltd & 22 ors [2013] EWHC 822 (Ch), French entities engaged in proceedings before the English court were required to comply with an order for specific disclosure issued in those proceedings despite the risk of prosecution under French law for doing so.

In 2007, the European Commission found that 20 companies had engaged in an extensive and sophisticated international cartel regarding the supply of equipment needed to control energy flow in electricity grids. This case arises out of a claim for damages in the English High Court made by National Grid Electricity Transmission plc against the cartel. Three of the defendants were French entities who objected to an order for specific disclosure on the basis of the existence of a French law that made it illegal for them to provide the requisite documents.

French law No 68-678, Article 1 bis of 26 July 1968 (subsequently modified), prohibits any person from requesting documents or information of an economic, commercial, industrial, financial or technical nature for the purposes of providing evidence for foreign judicial proceedings. Breaches of this article attract criminal penalties if prosecuted. Giving his judgment, Roth J assumed that the production of documents by the French defendants would breach the blocking statute…

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