National Petrochemical Industrial Company v ERM-Hong Kong [2026] HKCFI 2948

National Petrochemical Industrial Company (“NPIC”) commissioned construction of a petrochemical plant from Tecnimont S.p.A. (“TSPA”) and Tecnimont Arabia. In turn, TSPA engaged ERM to perform a Hazard and Operability Study ("HAZOP") on the facility. The 2005 HAZOP Study was conducted by a committee that included TSPA and NPIC representatives, and ERM produced the final report. Later, in 2018, a series of explosions occurred at the plant. NPIC alleged that the report failed to identify operational risks as thoroughly as it should have.

First, NPIC commenced an ICC arbitration against the Tecnimont entities (“Tecnimont Arbitration”). Public financial reports disclosed that NPIC started the arbitration in November 2020, reduced its claim from US$350 million to US$80 million in the terms of reference, and exchanged pleadings and briefs. The tribunal rejected Tecnimont’s preliminary objections in November 2021 but ultimately dismissed NPIC’s claims by award dated 23 July 2024.

Next, NPIC sued ERM-Hong Kong in the Hong Kong Court of First Instance for breach of duty. In an effort to support its position in the litigation, ERM sought disclosure of documents, “including but not limited to” those listed in the summons. Among other things, ERM argued that the arbitral tribunal’s conclusions would assist its defence if disclosed.

The court dismissed the application on several grounds.

• ERM failed to prove relevance of each document or each class of documents sought under the umbrella term “Tecnimont Arbitration Materials”.
• The court further understood the “broad-brush” request to constitute a “fishing expedition”.

I agree [...] that there is an element of fishing involved as the present application is used to substantiate the Defendant’s pleaded defence [...] on the “real risk” of inconsistent positions. What the Defendant is seeking to do, by the present application, is to search for materials in the hope of making good its speculation that the Plaintiff is running (or has run) an inconsistent case in the various proceedings. The same may be said of the Defendant’s attempts to search for materials to check if the Plaintiff’s expert evidence in the Tecnimont Arbitration is consistent with the Plaintiff’s expert evidence in these proceedings.

• The court applied the rule in Hollington v Hewthorn: findings and conclusions in another court or tribunal’s decision are generally inadmissible as evidence that the facts found are true.
• The court accepted that arbitration materials are subject to an implied obligation of confidentiality. Confidentiality did not make disclosure impossible, but it required concrete necessity.

To begin, documents prepared for and used in an arbitration (such as the Tecnimont Arbitration) are subject to an implied obligation of confidentiality, with the basic position being stated in Emmott (supra) at §81. Notwithstanding such an implied obligation of confidentiality, the Plaintiff accepts that the court has the power to order disclosure of the Tecnimont Arbitration Materials if it takes the view that the disclosure is necessary for the fair disposal of these proceedings.

The decisive contrast was Westwood Shipping: there, the claim could not be pursued properly without the arbitration materials. Here, ERM acknowledged the materials would make its job easier, but did not show that it could not defend the action without them.

• ERM could not obtain arbitration materials simply to check whether NPIC had advanced inconsistent positions in the arbitration — here, the request lacked the requisite evidential basis.

The summons was dismissed: ERM failed to demonstrate relevance, and the requested disclosure was not necessary for fair disposal or saving costs.