Dissertation Final 2 PDF

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SCHOOL OF LAW

THE INTERACTION OF ARBITRATION AND INSOLVENCY: THE

EVALUATION OF THE CLAIMED COLLISION BETWEEN THE LEGAL
REGIMES IN THE 21ST CENTURY
LAW 7002Y “DISSERTATION- MASTER OF LAWS-LAW: GENERAL”
SUSHMITHA SURESH
STUDENT NUMBER: 100329540
DATE OF SUBMISSION: 9 May 2022
“This copy of the thesis has been supplied on condition that anyone who consults it is understood to
recognise that its copyright rests with the author and that no quotation from the thesis, nor any
information derived therefrom, may be published without the author’s prior written consent.”
Word count: 13142

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Table of Contents
Acknowledgments .............................................................................................................................................. 4
List of Abbreviations ......................................................................................................................................... 5
Abstract .............................................................................................................................................................. 6
Introduction ...................................................................................................................................................... 7
CHAPTER 1: Putting in Context: The Approach of the Swiss and English Courts in the Vivendi/Elektrim
Dispute ............................................................................................................................................................ 10
1.1 Applicable law ........................................................................................................................................ 14
CHAPTER 2: Arbitrability of Insolvency Disputes ....................................................................................... 15
2.1 The Impact of Insolvency on Various Stages of the Arbitral Proceedings and their Outcomes ......... 16
2.1.1 Impact at the Start of the Proceeding .............................................................................................. 17

2.1.2 Impact on the Ongoing Proceeding ................................................................................................. 18
2.1.3 Impact at the Time of Enforcement of the Award ........................................................................ 20
CHAPTER 3: Legal Developments in Various Jurisdictions regarding their approach to the Arbitrability of
the Insolvency Disputes in the 21st Century .................................................................................................... 23
3.1 United States ........................................................................................................................................... 23
3.2 England ................................................................................................................................................... 25
3.3 Switzerland ............................................................................................................................................. 26

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3.4 Germany ................................................................................................................................................. 26
3.5 India ........................................................................................................................................................ 27
CHAPTER 4: An Analysis of Stay provisions in the UNCITRAL Model Law on International Commercial
Arbitration in Winding-up Proceedings and the differing Approaches of the National Courts ..................... 29
4.1 The Approach of the Singapore Court of Appeal in the VTB Dispute ................................................... 30
4.2 Approach in England ............................................................................................................................. 31
4.3 Approach in Hong Kong……………………………………………………………………………….31
4.4 Do Disputes Over an Underlying Debt in Winding-Up Petition Fall Within the Scope of the Article
8(1) of the Model Law? ................................................................................................................................... 32
CHAPTER 5: Narrowing Jurisprudence on Public Policy Exception Under Article V(2)(b) of the New York
Convention to Ease Enforcement of Cross-Border Insolvency Awards ......................................................... 34
5.1 US – An Early Approach to Public Policy Défence .............................................................................. 34
5.2 India – Changing its Approach ............................................................................................................... 34
CHAPTER 6: No Uniform Solution to Cross-Border Insolvency Disputes in International Commercial
Arbitration ....................................................................................................................................................... 37
6.1 Recommendation .................................................................................................................................... 38
Conclusion ....................................................................................................................................................... 41
Bibliography ……………………………………………………………………………………………….. 42
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ACKNOWLEDGEMENTS
In the Indian culture, a teacher is held in high regard as they enable a student towards the right direction. I
would like to use this opportunity to express my immense gratitude towards my supervisor Prof. Jacqui
Longman for providing me with her invaluable support, guidance and feedback throughout the preparation of
this dissertation.
I’m filled with gratitude towards my parents and my brother for their immeasurable support throughout and
for believing in my journey. I would like to express a special thank you to my grandmother for showering me
with her love and blessings always.
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LIST OF ABBREVIATIONS
IBA International Bar Association
UNCITRAL United Nations Commission on International Trade Law
NYC New York convention
ICC International Chamber of Commerce
LCIA London Court of International Arbitration
PBRL Polish Bankruptcy and Restructuring Law
SPILA The Swiss Private International Law Act
PIL Portuguese Insolvency Law
NCLT National Company Law Tribunal
CIRP Corporate Insolvency Resolution Process
SchKG Swiss federal statute on debt collection and bankruptcy

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ABSTRACT
The twenty-first century has seen a significant increase in cross-border trade, as well as an increase in the
number of international arbitration parties who have become subject to insolvency proceedings. The financial
crisis and economic downturn in the late noughties, followed by the impact of the COVID-19 pandemic, has
added significantly to the prevalence of cross-border insolvency. In principle, insolvency and arbitration are
two distinct proceedings governed by two different set of procedural rules, each having its own unique purpose
and underlying principles. In occasions where disputes involving both regimes, “bankruptcy policy exerts an
inexorable pull towards centralization while arbitration policy advocates a decentralised approach towards
dispute resolution.” Due to this, the relationship between insolvency and arbitration has been described as
‘a conflict of near polar extremes. The crux of the controversy revolves around the varied national legal
approaches that effects party to international commercial arbitration who gets involved in an insolvency
proceeding. The aim of this paper is to evaluate the influence of cross-border insolvency on internationally
seated arbitration, as well as the differing approaches of jurisdictions at various stages of the arbitral
proceeding, which results in no uniform or standard approach to dealing with this issue, with different legal
systems adopting different resolutions to these competing interests. This paper will conclude with a
recommendation that if effective provisions are added to international instruments to harmonise the approach
of jurisdictions, international commercial arbitration can aid in dealing with at least the non-core cross-
border insolvency related matters and render effective final and binding orders.
Word count: 254

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Introduction
International arbitration has grown in popularity as a means of resolving cross border commercial disputes.1
The twenty-first century has seen a significant increase in cross-border trade; it has also witnessed a rise in the
number of parties to international arbitrations becoming subject to insolvency proceedings.2 The financial
crisis and economic downturn in the late noughties, followed by the impact of the COVID-19 pandemic, has
added significantly to the prevalence of cross-border insolvency.3
As has been recognised by many authors, arbitration and insolvency can frequently collide and be at
loggerheads, as most jurisdictions do not provide any guidance on the implications or impact of insolvency
proceedings on arbitration, including the effect this can have on jurisdiction of a tribunal, the conduct of the
proceedings, and most importantly, the enforcement of any resulting award against an insolvent party.4 The
consequences of this intersection between arbitration and insolvency regimes are unclear, and the issues raised
continue to be extremely controversial.5 This is because the core principle of international arbitration law is
based on party autonomy, whereas; national insolvency laws aim at collective satisfaction of the assets for the
benefit of all creditors.6 The divergent approaches of national laws towards international arbitration
proceedings when one of the parties becomes involved in an insolvency proceeding creates a conundrum for
the parties.
In most jurisdictions, only national courts, which are often specialised courts have the authority to commence,
administer and wind-up insolvent companies.7 These core bankruptcy functions, which are regarded as being
exclusively within the jurisdiction of national courts, are almost universally considered to be non-arbitrable
under the laws of developed jurisdictions, whether in domestic or international arbitration proceedings.8 The
key and controversial question is whether and when an arbitrator is required to consider and respect the
insolvency of a party subject to arbitration, and whether the arbitral tribunal has the jurisdiction to deal with
disputes involving a bankrupt company as a party to arbitration or consider questions of bankruptcy law such
as continued effect of a contract.9
1
QMUL-International-Arbitration-Survey-2021;<https://arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-
International-Arbitration-Survey-2021_19_WEB.pdf> accessed 12 march 2022
2
‘The insolvency time bomb: prepare for a record-high increase in insolvencies, the collateral damage of the Covid-19
crisis’<https://www.eulerhermes.com/en_global/news-insights/news/the-insolvency-time-bomb--prepare-for-a-record-high-
increase-in-.html > Accessed 12th March, 2022
3
World Economic Forum, ‘This is what the economic fallout from the coronavirus would look like’
<https://www.weforum.org/agenda/2020/04/depression-global-economy-coronavirus/ > Accessed 12 March, 2022
4
Gropper, Allan L, ‘The arbitration of cross-border insolvencies’,[2012] 86 Am. Bankr. LJ 204,117
5
Gary B Born, International Commercial Arbitration (Kluwer Law International BV, 2020).,1085
6
United Nations Commission on International Trade Law, Legislative Guide on Insolvency Law (United Nations Publications,
2005).,9
7
Born, (n 5) 1084
8
Ibid.
9
Ibid, 1085
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While arbitration is known for its ability to keep the proceedings and the resulting award confidential;10
national insolvency laws generally result in the complete deprivation of the debtor's rights to manage and
dispose of its assets, as well as run the business, including the resolution of contractual disputes. 11 Typically,
these rights are transferred to specialist insolvency practitioners or to national courts.12 The entire purpose of
insolvency is to collect assets and distribute them uniformly among creditors.13 Therefore, Insolvency
proceedings against a debtor are usually centralised in one location under the supervision of a single court.14
However, because contracting parties in international commercial arbitration are frequently based in different
jurisdictions with different approaches to insolvent parties, cross-border insolvencies may become more
complex.
The first critical question here is to determine the impact of insolvency on arbitration. Assuming the tribunal
recognises insolvency proceedings, the next issue for the arbitrators is determining the impact of insolvency
of a party on the arbitration itself. Specifically focusing on jurisdiction from the arbitration agreement, which
ascertains the effects on the validity of the arbitration agreement due to the insolvency of the party and the
capacity of the parties to arbitrate. In addition to this, the arbitrator must consider the impact of insolvency
proceedings on the overall conduct of the arbitration, including whether the arbitration must be suspended.
Finally, and perhaps most significant question here is the effect insolvency can have on the recognition and
enforcement of the arbitral award itself, particularly when the seat and place of enforcement are different and
subject to distinct legal regimes.
The heart of the controversy thus revolves around the varied national legal approaches to these questions.
Various national legislative regimes and judicial decisions have differing jurisprudence on these issues and
have reached varying conclusions. In recent cases demonstrating the different outcomes include some
jurisdictions wherein arbitration proceedings involving an insolvent party is prohibited entirely; other
arguments include that arbitration should be prohibited only in certain circumstances or that arbitration should
be permitted subject to various limitations and procedural adaptations or maintain that insolvency should have
no real effect on arbitration,15 all these various aspects will be addressed in this paper.
The aim of this paper is to evaluate the influence of cross-border insolvency on internationally seated
arbitration, as well as the differing approaches of jurisdictions at various stages of the arbitral proceeding,
which results in no uniform or standard approach to dealing with this issue, with different legal systems
adopting different resolutions to these competing interests. This paper will conclude with a recommendation
10
Margaret L Moses, The Principles and Practice of International Commercial Arbitration (Cambridge University Press, 2017).,4
11
Ibid (n 6), 30
12
Lawrence Westbrook, 'The Coming Encounter: International Arbitration and Bankruptcy', Minn. L. Rev., 67 (1982), 595.
13
Ibid (n 6), 9
14
Gropper, Allan L, ‘The arbitration of cross-border insolvencies’,[2012] 86 Am. Bankr. LJ 204
15
Ibid.
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that if effective provisions are added to international instruments to harmonise the approach of jurisdictions,
international commercial arbitration can aid in dealing with at least non-core cross-border insolvency related
matters and render effective final and binding orders. It will also evaluate the role of the toolkit on insolvency
and arbitration published by the International Bar Association (IBA) in March 2021 and its relevance in the
current times.
Structure of this paper
Chapter 1 of this article introduces the broad interplay between insolvency and arbitration, focusing on the
English and Swiss courts' divergent approaches in the Vivendi-Elektrim case. Chapter 2 defines arbitrability
in relation to insolvency matters and evaluates the impact of insolvency on the various stages of arbitral
proceedings and their outcomes. Chapter 3 examines the legal developments in various jurisdictions regarding
their approach to the arbitrability of insolvency disputes in the twenty-first century. Chapter 4 analyses the
relevance of the stay provisions in the UNCITRAL Model Law on International Commercial Arbitration
(hereinafter, ‘Model Law on Arbitration’) and other legal regimes on the context of the debtor using the
provisions to stay winding-up proceedings initiated by a creditor on the basis of an outstanding but a contested
contractual debt and the differing approaches of the national courts to this question. Chapter 5 discusses how
some jurisdictions have recently narrowed their interpretation of Article V (2)(b) of the New York Convention
to facilitate the enforcement of cross-border insolvency awards. Chapter 6 summarises the preceding chapters'
discussions and concludes that there is no uniform solution to cross-border insolvency disputes in international
commercial arbitration, followed by recommendations and conclusion.
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CHAPTER 1: Putting in context: The approach of the Swiss and English courts in the Vivendi-
Elektrim dispute
In principle, insolvency and arbitration are two distinct proceedings governed by two different set of
procedural rules, each having its own unique purpose and underlying principles. In occasions of disputes
involving both regimes, “bankruptcy policy exerts an inexorable pull towards centralization while arbitration
policy advocates a decentralised approach towards dispute resolution.” Due to this, the relationship between
insolvency and arbitration has been described as ‘a conflict of near polar extremes.16 Cross-border insolvency
proceedings may necessarily lead to complexities when the parties involved are also a party to valid arbitration
agreement wherein, the parties have made a conscious decision to submit the contractual disputes that arise
between them to arbitration. The coordination of foreign insolvency proceedings tagged along with an
international arbitral proceeding is frequently a source of contention. In this context, the long-lasting Vivendi-
Elektrim dispute will majorly aid in understanding the complexities of varying jurisdictional approaches and
the impact foreign insolvency has on the multi-party international commercial arbitration. It highlights the
intricacies that arise in the parties' capacity to continue participation in arbitration proceedings at the seat of
arbitration and the ongoing insolvency proceedings at a national court elsewhere.
To provide a brief background, a dispute arose in 2003 between Vivendi Universal, Elektrim, and Deutsche
Telecom over ownership rights in Telco, a Polish telecommunications company. Deutsche
Telecom commenced arbitration proceedings against Telco and Elektrim in the Vienna Court of Arbitration
in 2004, and the Vienna Court ruled that the transfer of certain shares to Telco was ineffective. In 2005,
Vivendi initiated arbitration against Elektrim under the rules of the London Court of International Arbitration
("LCIA"), claiming that Telco still retained ownership of or was entitled to the shares. In 2006, Vivendi and
Elektrim started arbitration proceedings against Deutsche Telecom in Switzerland pertaining to the rules of
the International Chamber of Commerce ("ICC") for alleged breach of a settlement agreement relating to
ownership of the shares.
In the meantime, Elektrim was undergoing bankruptcy proceedings in Poland, and the company was declared
bankrupt in August 2007 by the Warsaw District Court.17 At the time the bankruptcy order was issued,
Elektrim was still involved in the ongoing arbitral proceedings in Geneva and London. Elektrim sought to
have both pending arbitration proceedings terminated pursuant to Article 142 of the Polish Bankruptcy and
Restructuring Law (PBRL), which states:
“Any arbitral clause concluded by the bankrupt shall lose its legal effects as at the date bankruptcy is declared
and any pending arbitral proceedings shall be discontinued”
16
“Societe Nationale Algerienne Pour La Recherche, La Production, Le Transport, La Transformation et La Commercialisation
des H” In re U.S. Lines, Inc., (2d Cir. 1999)197 F.3d 631, 640
17
Warsaw Regional Court, [2009] file ref No VII Co 388/08, I ACz 1883/09, I ACz 1686/09
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It argued that under this provision the bankrupt party loses its capacity to be party to an arbitration proceeding,
thus the arbitration tribunal is deprived of its jurisdiction. The ICC arbitration tribunal seated in Geneva, in its
interim award upheld the jurisdictional objection raised by Elektrim. In 2009, the Swiss Federal Supreme
Court affirmed the tribunal's decision.18 The Supreme Court stated that the arbitral tribunal rightly denied
jurisdiction applying the legal principles as exemplified in the Swiss Private International Law Act (SPILA),
to determine that capacity to be a party in arbitration was subject to the law of the company’s place of
incorporation which is in this case the Polish law.19As a result, the arbitration agreement was determined to
have lost legal effect, and the arbitration proceeding was terminated.
Meanwhile, in the LCIA arbitration proceedings seated in England, tribunal’s findings on whether to continue
arbitral proceedings were based on the interpretation of the EC Council Regulation on Insolvency Proceedings
(‘the Regulation’), as England was a EU member at the time.20 The question that had to be determined is
whether the law of the Member State where the insolvency proceeding has been instituted is to be applied or
is it the law of the member State in which the reference is taking place. 21 The tribunal applied the law of
England and Wales and decided that the arbitration should proceed and rendered an award. The English Court
of Appeal upheld the decision of the tribunal.22 The tribunal characterised the dispute in terms of a conflict
between the provisions of Article 4 and Article 15 of the regulation. Article 4(1) of the Regulation establishes
the general rule that, the law applicable to insolvency proceedings and their effects shall be that of the Member
State in which such proceedings are first opened.23The Court of Appeal confirmed that the relevant provision
in this case is the application of Article 15 of the Regulation which stated that "The effects of insolvency
proceedings on a lawsuit pending concerning an asset or a right of which the debtor has been divested shall
be governed solely by the law of the Member State in which the lawsuit is pending".24 Therefore in this case,
it was ruled that that arbitral proceedings are a "lawsuit pending" and thus, pursuant to Article 15, it should
apply English law to determine the effect of the bankruptcy on the proceedings.25 It characterized the
application of the Polish law as procedural, not substantive.26
However, on January 1, 2016, the new Polish bankruptcy law came into force. 27 The new law clarifies that
declaring bankruptcy does not automatically terminate ongoing arbitration proceedings, putting an end to the
18
Vivendi SA and others v Deutsche Telekom AG and others (2009) 4A_428/2008
19
Ibid, 3.2,3.3
20
Council Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings [2000]
21
Syska & Anor v Vivendi Universal SA & orss, [2009] EWCA Civ 677, 1
22
Ibid
23
Council Regulation (EC) 1346/2000 on insolvency proceedings [2000], Article 4 (1): Save as otherwise provided in this
Regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of
which such proceedings are opened, hereafter referred to as the ‘State of the opening of proceedings’.
24
Ibid (21), 32
25
Ibid (21), 33
26
Ibid, 30
27
The new Polish Reconstructing Law of 15 th May 2015 (the “Reconstructing Law”)
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disparate approaches to procedural and substantive issues that existed previously.28 The new Bankruptcy Law
ensures that similar disparities do not arise in future arbitrations involving parallel Polish bankruptcy
proceedings.29 This reshaping of the bankruptcy law in Poland made it easier for companies to get back on
their feet after a period of financial difficulty. Moreover, from a perspective of arbitration, this new law
derogates from the controversial provision well known to the arbitration world from the Elektrim case.30
The decision of the Swiss Federal Supreme Court in Vivendi-Elektrim case triggered controversy among the
arbitration practitioners in Switzerland.31 The main criticism was that the Supreme Court incorrectly qualified
the legal question as one of subjective arbitrability and misconstrued Article 142 of the PBRL, interpreting it
as a norm affecting the ability of a Polish debtor to stand as a party rather, it regulates the validity of an
arbitration clause.32
In 2012, the Swiss Federal Supreme court revisited the definition of legal capacity under the Swiss law
pertaining to foreign insolvencies with its landmark judgement.33 It clarified its position on the effect of a
party's bankruptcy on international arbitration proceedings with this decision. The dispute was over an
agreement that contained an arbitration clause arouse between a Chinese and a Portuguese company, having
Switzerland as the seat of arbitration. In 2009 the Portuguese company was declared an insolvent by the
Portuguese court and nearly a year later, in August 2010 the Chinese company initiated an ICC arbitration
proceedings against the Portuguese company.34 The Portuguese Company disputed the jurisdiction of the
arbitration tribunal relying on Article 87(1) of the Portuguese Insolvency Law (PIL), which states “ Without
prejudice to provisions contained in applicable international treaties, the efficacy of arbitration agreements
relating to disputes that may potentially affect the value of the insolvency estate and to which the insolvent is
28
Jessica Peet, Louise Woods, ‘Policy-Related Complexities In Parallel, Cross-Border Insolvency and arbitration Proceedings’
(Vinson & Elkins LLP, 19 June 2020 < https://www.jdsupra.com/legalnews/policy-related-complexities-in-parallel-89352/ >
Accessed on 06 April 2022
29
Ibid.
30
Kubas Kos Galkowski, ‘Elektrim case era comes to an and’ (Lexology, 23 July 2015)
<https://www.lexology.com/commentary/arbitration-adr/poland/kubas-kos-gakowski/elektrim-case-era-comes-to-an-end >
accessed 19 April 2022
31
X._____ Lda. v Y._____ Ltf., (2012) 4A_50/2012, 3.5.2
32
Ibid.
33
X._____ Lda. v Y._____ Ltf., (2012) 4A_50/2012; see also, Nathalie Voser and Anya George, ‘Insolvency and arbitration:
Swiss Supreme Court revisits its Vivendi vs. Elektrim decision’ (Insolvency, Jurisdiction, Jurisdiction of the Arbitral Tribunal,
Law Governing the Arbitration, Switzerland, 5 December 2012)
<http://arbitrationblog.kluwerarbitration.com/2012/12/05/insolvency-and-arbitration-swiss-supreme-court-revisits-its-vivendi-vs-
elektrim-decision/ > Accessed on 06 April 2022
34
X._____ Lda. v Y._____ Ltf., (2012) 4A_50/2012, A.a, A.b and B.a; See also Simon Marc Hohler, ‘The effect of a party’s
bankruptcy on international arbitration proceedings in Switzerland – the revised position of the Swiss Federal Supreme Court after
Vivendi’ (Transnational Notes, 18 February 2014) < https://blogs.law.nyu.edu/transnational/2014/02/the-effect-of-a-partys-
bankruptcy-on-international-arbitration-proceedings-in-switzerland-the-revised-position-of-the-swiss-federal-supreme-court-after-
vivendi/ > Accessed on 06 April 2022
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party shall be suspended.”35 Based on this, it claimed that it was no longer capable to appear before the arbitral
tribunal and lacked subjective arbitrability.
The tribunal confirmed that the arbitration agreement is valid based on Article 178 (2) PILA and the parties
were competent to participate in the international arbitration proceeding in Switzerland.36 With regard to the
law governing the capacity to be a party in an international arbitration proceeding in Switzerland, the Supreme
Court pointed out that Chapter 12 of the SPILA the lacks a provision regarding non-state parties' subjective
arbitrability, so their capacity to participate in arbitration proceedings must be determined based on the
preliminary substantive law question of legal capacity.37 Regarding capacity, it was determined that if a foreign
entity is a legal person according to its status at its place of incorporation, it is also capable of participating as
a party in a Switzerland-seated international arbitration.38 Therefore, it was concluded that Article 87(1) PIL
does not affect the legal personality of a bankrupt Portuguese entity and consequently, its capacity to
participate in a Swiss-seated arbitration.39 In accordance with the Swiss lex arbitri, Article 87(1) PIL regulates
one aspect of the substantive validity of the arbitration agreement, which is to be evaluated under Article 178
(2) SPILA.40 At least under Swiss law, bankruptcy does not affect the validity of an arbitration agreement, so
Article 87 (1) PIL does not invalidate arbitration clause. Furthermore, it was not alleged that the Appellant
was not legally capable to enter into the arbitration agreement at the time of conclusion.41
The Swiss Supreme Court made it clear in the aforementioned 2012 decision that the Vivendi-Elektrim case
could not be taken as general precedent and that the Vivendi-Elektrim judgement should be considered in the
specific context of Polish law and the legal writing thereunder.42
In the Vivendi-Elektrim dispute, the Swiss Supreme Court and the English High Court reached divergent
conclusions for the same issue as a result of application of different laws because of the approaches taken to
characterize the issue. The above analysis shows that effects of an insolvency proceeding on arbitration
agreements and proceedings vary significantly depending on the applicable law. At this stage, it is critical to
determine the law governing these issues. In most cases, the courts approach these issues on a fact-to-fact basis
which makes it a complex web of uncertainty and unpredictability. The important factor here is to understand
the legislative framework in relation to international arbitration and insolvency proceedings in various
countries.
35
Ibid, B.a, 3.1.2.2
36
Ibid, 3.1
37
Ibid, 3.3.2
38
Ibid, 3.3.4
39
Ibid.
40
Ibid, 3.6
41
Ibid
42
Ibid, 3.5.3
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Applicable law
The analysis of the above-mentioned cases suggests that the arbitral tribunal might refer to the conflict-of-law
rules at the seat. As a result, the validity and scope of the arbitration agreements, in most cases depends on the
lex fori of the seat of the arbitral tribunal.43 With regard to validity when it is pertaining to insolvency and
arbitration, the key question is whether the relevant insolvency law provisions or state court decisions bind the
arbitration tribunal. Is it possible for the arbitral tribunal to disregard the insolvency proceedings, or should
the arbitration be stayed or terminated? Is the arbitral tribunal bound by a mandatory stay provision in a foreign
bankruptcy court or a court in the seat of arbitration? Should certain claims be dismissed because they are non-
arbitrable? When and who decides whether the arbitration proceedings should be continued or whether the
insolvency provisions or court decision should be disregarded, is it the arbitral tribunal or a court? It is not
possible to provide a standard answer to these questions. It ultimately depends on the law that is applied to
determine whether the dispute may be settled by arbitration or not. The answer to these critical concerns can
be found in the law that governs each of these specific issues. The law of that particular jurisdiction may apply
if it is the seat of arbitration, the location of the insolvent debtor, the location of the insolvent proceedings, the
location of the assets, or for some other relevant connection.
Since it has now been established what complications can arise when cross-border insolvencies and
international commercial arbitration collide, the following chapter will focus solely on the issues of the
arbitrability of insolvency disputes, which can have a significant impact on the jurisdiction of the arbitral
tribunal, and the effect cross border insolvency of a party can have on various stages of arbitral proceedings
and their varied outcomes in various jurisdictions.
43
Simon Vorburger, ‘International Arbitration and Cross-Border Insolvency: Comparative Perspectives’ (Vol 31, Kluwer Law
International 2014) 125
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CHAPTER 2: Arbitrability of insolvency disputes
The two conflicting regimes of arbitration and cross-border insolvency frequently have several implications
on internationally seated arbitration. As seen in the preceding cases, there is no general procedure for resolving
these issues. ‘Arbitrability’ is one issue where the contractual and jurisdictional natures of International
commercial arbitration meet head on.44 In simple terms, it concerns with identification of the type of disputes
which are deemed to be capable of being decided by arbitration and then determines whether specific classes
of disputes are excluded from arbitration proceedings.45
Gary B. Born summarized that the type of disputes that are non-arbitrable nonetheless arise from a common
set of considerations. Bankruptcy related matters are one of the examples of non- arbitrable subjects in
different jurisdictions. He further states that, the non-arbitrability doctrine rests on the notion that certain
matters contain various “public rights” and interests, or the interests of third parties, that agreements to resolve
such conflicts through “private” arbitration should not be given effect to. 46 The non-arbitrability doctrine’s
purpose is therefore to preserve the jurisdiction of the national courts on subjects deemed to be of public
interest. Over the last few decades, due to the pro-arbitration approach of various legislations the scope of non-
arbitrability doctrine is materially diminished.47
The New York Convention (hereinafter, ‘NYC’) states that each contracting State shall recognize an
agreement which concerns a subject matter capable of settlement by arbitration,48 often referred to as
‘arbitrable’ matter and goes on to provide that the recognition and enforcement of an arbitral award may be
refused if the subject matter of the dispute is not capable of settlement by arbitration under the law of the
country where the recognition and enforcement is sought.49 The UNCITRAL Model law50 similarly, is in line
with the NYC regarding this issue. Thus, under these conventions, national courts are only required to enforce
arbitration agreements when a dispute is arbitrable. Additionally, if a dispute is arbitrable under a particular
law, courts may not refuse to enforce an arbitration agreement or award based on the dispute's non-arbitrability
under a different law. Therefore, these conventions regulate which law governs arbitrability at the
enforceability stage.51In contrast, the Conventions do not contain specific rules that govern arbitrability at the
44
Lew, Julian DM Mistelis, Loukas A Kröll, Stefan Michael Kröll, Stefan, Comparative international commercial arbitration
(Kluwer Law International BV, 2003) 187
45
Doug Jones, ‘Insolvency and Arbitration: An Arbitral Tribunal’s Perspective’ (2012) 78(2) Arbitration: The International
Journal of Arbitration, Mediation and Dispute Management, 124
46
Born, (n 5)1029
47
Ibid, 1046
48
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered into force 7 June
1959) 330 UNTS 3 (United Nations), art II (1)
49
Ibid, art V(2) a
50
Model Law on International Commercial Arbitration (adopted 21 June1985, amended 7 July 2006) UN Doc A/40/17, Annex I
(UNCITRAL), art 34 (2) (b)(i) and art 36(1)(b)(i)
51
Lew, Mistelis, A Kröll, M Kröll, Stefan, (2003). (n 41) 190
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pre-award stage.52 For instance, when a party challenges the jurisdiction of the court invoking the existence of
an arbitration clause it has not been expressly provided as to which law the dispute has to be capable of
settlement through arbitration. It has resulted in several conflicting views in national court practises.53
It is customary for courts to apply different criteria depending on whether the issue arises during the referral
or enforcement stages. For example, in a case involving exclusive distributorship between a Belgian and a
Swiss party wherein the contract was submitted to Swiss law and contained an arbitration clause. The Belgian
party commenced court proceeding in Belgium, claiming that distributorship disputes were not arbitrable
under Belgian law; whereas the Swiss party requested that the dispute be arbitrated. The Court of Appeal in
Brussels granted the application, ruling that the arbitrability of the dispute must be determined using different
criteria depending on whether the question arises when deciding on the validity of the arbitration agreement
or when deciding on the recognition and enforcement of the arbitral award. In the former, the arbitrability is
determined by the law that governs the validity of the arbitration agreement and its object. As a result, the law
of autonomy provides a remedy to the issue of arbitrability.54
The national laws that determine the doctrine of arbitrability may differ across jurisdictions.55 They often
impose restrictions and limitations on matters submitted to arbitration.56 Traditionally, cross-border insolvency
related issues often dispute of arbitrability,57 because there are no rules in place to provide international
harmonisation of such disputes, the national laws of the countries involved must be examined. The issue of
arbitrability when dealing with an insolvent party who is a party to an internationally seated arbitration varies
with jurisdictions. While referring to various jurisdictions and their approaches to this issue in the paragraphs
below, an attempt has been made to make a general comparison on how this collision between the two regimes
is dealt with.
2.1 The impact of insolvency on various stages of the arbitral proceedings and their outcomes
Insolvency of a party affects nearly all arbitral proceedings and every phase of an arbitration, from the initiation
of a dispute, including the validity of the arbitration agreement to the eventual enforcement of an award. The
law governing the arbitrability of a dispute may differ depending on where and when the issue occurs in the
proceedings.58 As previously stated, the criteria used by courts during the enforcement of the award may differ
from those used at the pre-award stage. The different national arbitration legislation does not regulate
52
Ibid.
53
Ibid.
54
Company M v M SA, Cour d'appel Brussels, 4 October 1985, XIV YBCA 618 (1989) cited in Lew, Mistelis, A Kröll, M Kröll,
Stefan, (2003). (n 44) 190
55
Winnie Jo-Mei Ma and Lawrence Boo, 'Autonomous Arbitrability? Whose Autonomy? Whose Arbitrability?', in Franco Ferrari
and Friedrich Jakob Rosenfeld (eds), Autonomous Versus Domestic Concepts under the New York Convention, International
Arbitration Law Library, (Vol 61, Kluwer Law International 2021) 299
56
Lew, Mistelis, A Kröll, M Kröll, Stefan, (2003). (n 44) 190
57
Ibid, 201
58
Ibid,189
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arbitrability; instead, they decide which matters are arbitrable.59 While this approach has historically been
found in case law in common law countries60, some civil law countries have attempted to legislate the disputes
pertaining to arbitrability, for example, Article 177 (1) of the SPLIA deals with arbitrability, it states that any
dispute involving financial interest may be a subject matter of arbitration.
2.1.1 Impact at the start of the proceeding
The jurisdiction of an arbitrator can be established only by a valid agreement of parties, whereas the
jurisdiction of the courts in insolvency proceedings is determined by the legislation. 61 Accordingly, an
arbitration agreement will be valid only if it confers with the law chosen by the parties or the law governing
the subject matter of the dispute.62 Hence, questions here may be raised regarding the jurisdiction of the arbitral
tribunal to continue the proceedings and render an enforceable award. Even though the doctrine of separability
determines the agreement to arbitrate as a separate contract which is independent and distinct from the main
contract, there is a possibility that the arbitration agreement itself can be considered as invalid and ineffective
due to the commencing of insolvency in many jurisdictions.”63
When a party to an arbitration agreement becomes subject to an insolvency proceeding, national law will
address the implications of such events for the validity and enforceability of arbitration clauses to which the
bankrupt entity is a party, as well as the procedural conduct of such arbitrations. Some national legislations
appear to invalidate the arbitration agreements of bankrupt entities. For instance, Article 487(8) of the Latvian
Civil Procedure Law states that disputes “regarding the rights and obligations of persons that have been
declared insolvent before the making of the award by the arbitral tribunal are not arbitrable”64 These national
law rules can be classified as either substantive validity rules, which have the effect of invalidating a previously
valid arbitration agreement, or capacity rules, which purport to remove the insolvent entity's capacity.
In principle, Article V (1) (a)’s reference to ‘the law applicable to them’ implies that, matters of capacity are
governed by the personal law of the party in question, so the rules of capacity of the company’s place of
organisation or corporate seat may generally be applied. However, in this regard, Vivendi-Elektrim dispute
the Swiss court has adopted this analysis by concluding that the Polish bankruptcy statute ‘governs a specific
aspect of the capacity to be a party, and provided that a locally incorporated insolvent party is deprived of the
59
Ibid,194
60
Riverrock Securities limited vs International Bank of St Petersburg, (2020) EWHC 2483 (Comm)
61
Christoph Liebscher, ‘Insolvency and Arbitrability', in Loukas A. Mistelis and Stavros Brekoulakis (eds), Arbitrability:
International and Comparative Perspectives, (Vol 19, Kluwer Law International 2009)166
62
Ibid,176
63
Vorburger, 2014 (n 43)97
64
Other examples include, Netherlands Bankruptcy Act 1983, Art. 122 , Portuguese Bankruptcy Law, Article 87 “without
prejudice to the provisions contained in applicable international treaties, the efficacy of arbitration agreements relating to disputes
that may potentially affect the value of the insolvency estate and to which the insolvent is party shall be suspended”.
18 | P a g e
subjective arbitrability in the ongoing proceeding.65 In contrast, the English court has concluded that the
insolvency of party does not raise issues of capacity, but instead raises issues of the effects of the arbitration
agreement; rather than applying the law of the insolvent party’s home jurisdiction, these decisions generally
apply to the law of the arbitral seat. Adopting this analysis, the English courts generally hold that the
insolvency of a party does not frustrate or terminate an agreement to arbitrate.66
In few other jurisdictions, aside from ‘core insolvency issues, contractual disputes under pre-existing
arbitration agreements involving a bankrupt company remain subject to arbitration. For instance, In Germany,
the insolvency administrator, acting as a trustee, takes control of the debtor's arbitration agreements, and
German courts have consistently ruled that an arbitration agreement extends to this trustee and is unaffected
by the insolvency of one of the parties.67 Additionally, United States, Switzerland, France and England have
historically been taking a pro-arbitration stance which will be discussed in detail in the next chapter.
Even if an insolvent party's arbitration agreement remains valid following the commencement of bankruptcy
proceedings, and even if the insolvent entity's disputes are arbitrable, it is occasionally argued that any arbitral
proceedings should be stayed as a matter of discretion. While some jurisdictions rely on public policy as a
basis imposing a mandatory stay of arbitration against the insolvent party; some others leave the decision to
the discretion of the arbitral tribunal.
2.1.2 Impact on the ongoing proceeding

The question of what happens to ongoing international arbitration proceedings when a party becomes an
insolvent is a difficult question to answer.68 This is because this issue gives rise to a combination of conflict
of law, insolvency laws and arbitration laws of various jurisdictions resulting in lack of uniform solution. As
this issue is also not regulated in international treaties,69 the scope of automatic stay provisions depends on the
applicable national insolvency regime.70 The automatic stay, in the majority of countries, is intended to prevent
the abatement of insolvency estate assets in order to ensure the orderly payment of all creditors.71 The primary
objective is to centralise the treatment of claims by ordinary, unsecured, and non-preferred creditors.72 In other
countries, the automatic stay is also viewed as a direct result of the debtor losing the right to pursue legal
action. Thus, the automatic stay seeks to provide sufficient time for the trustee and creditors to prepare before
65
Vivendi SA and others v Deutsche Telekom AG and others (2009) 4A_428/2008
66
Syska & Anor v Vivendi Universal SA & orss, [2009] EWCA Civ 677
67
Insolvency Statute 1994, art 103 (1), Amended (2011) art 19, BGH 20 November 2003, (2004) ZInsO 88, cited in Frank-Bernd
Weigand, Practitioner's Handbook on International Commercial Arbitration (OUP Oxford, 2009) 501
68
Jones, (n 45) 128
69
70
Ibid.
71
Vesna Lazić, 'Cross-Border Insolvency and Arbitration: Which Consequences of Insolvency Proceedings Should be Given
Effect in Arbitration?', in Stefan M. Kröll , Loukas A. Mistelis , et al. (eds), (International Arbitration and International
Commercial Law: Synergy, Convergence and Evolution, Kluwer Law International 2011) 350
72
Ibid.
19 | P a g e
resuming the debtor's proceedings.73 The applicability of automatic stay provisions in national insolvency laws
to international arbitration proceedings varies from one jurisdiction to another.
In the US, Section 362 of the Bankruptcy Code provides that the filing of a petition of bankruptcy operates as
a stay of litigation and proceedings against debt and the debtor’s property.74 The legislative history of the
automatic stay provision reveals, the scope of section 362 (a) (1) is broad and includes arbitration proceedings
in its purview.75 In United State Lines76, while the court held that the declaratory judgement proceeding is
“core” and remanded the matter back bankruptcy proceeding it clarified that even though the core proceedings
implicate more pressing bankruptcy concerns, a determination that proceeding is core will not automatically
give the bankruptcy court a discretion to stay arbitration because not all core bankruptcy proceedings are
premised on provisions of the code that ’inherently conflict’ with the Federal Arbitration Act, nor would
arbitration of such proceedings necessarily jeopardize the objectives of the bankruptcy code.77
Under English law, the Insolvency Act 1986, the automatic stay of proceedings is dependent on the type of
insolvency proceeding applicable to the corporate insolvency. If the petition is concerning a compulsory
liquidation,78 then the English courts have the discretion to order stay of any action or proceeding including
arbitral proceedings. Once a compulsory liquidation order is issued, pending legal proceedings can only be
continued according to the discretion of the court. Upon the commencement of an administration,79 the arbitral
proceedings are stayed and can only be continued if the administrator seeks permission from the court to
proceed with arbitration.80 In contrary to this, in voluntary liquidation no automatic stay is imposed.81 Further,
regarding foreign insolvencies, in a case that surfaced after the adoption of the UNCITRAL Model Law on
Cross-border insolvency (hereinafter, ‘Model law on Insolvency)82 concerning an arbitration seated in London
involving a party subject to Swiss insolvency proceedings. The entity subject to insolvency was not party to
the arbitral proceeding itself, but it claimed that the arbitration would concern assets that belonged to its
insolvency estates. The English High Court had to decide whether automatic stay of the arbitration would be
triggered by recognition of the Swiss insolvency in England. The High Court left open the question of whether
recognition of a foreign insolvency would automatically stay the arbitration and relied instead on its discretion
73
Commission of the European Communities v AMI Semiconductor Belgium BVBA and Others, (2005) Case C-294/02; Vorburger,
2014 (n 40) 181
74
United States Code, Title 11 Bankruptcy 1978, s 362
75
In re U.S. Lines, Inc., (2d Cir. 1999) 197 F.3d 631, 640 (“ FAA v. Gull Ai”)
76
In re US Lines, Inc., (2d Cir. 1999)197 F. 3d 631
77
Ibid, 640
78
Compulsory Liquidation generally occurs on the petition of a creditor seeking the complete shutdown of the business
79
Administration works to ensure the company's survival and reconstruction as a going concern.
80
Insolvency Act 1986, sec 130 (2), sec 285 (3)(b); Vorburger, 2014 (n 40)184
81
Insolvency Act 1986, sec 112
82
Model Law on Cross-Border Insolvency (adopted 30 May 1997, came into force 4 April 2006) A/52/17. Annex 1 (UNCITRAL)
20 | P a g e
to determine whether the arbitration should proceed. Thus, the court ordered the arbitration to proceed,
believing that arbitration was the most appropriate legal forum for resolving the parties' dispute.83
In French insolvency law, when insolvency proceedings are initiated, all legal actions against the debtor are
automatically stayed.84 It imposes an automatic stay as part of French national and international public
policy.85 This also applies to international arbitration proceedings.86 Contrary to this, according to the Swiss a
provision under Swiss insolvency law which imposes discontinuation of Civil and administrative proceeding
that affect the existence of the bankruptcy estate, is based on the principle of territoriality.87 Hence, legal
proceedings before foreign national courts or authorities do not have to be stayed in the case of a Swiss
insolvency. Simultaneously, the commencement of a foreign insolvency does not automatically stay Swiss
legal proceedings. Additionally, contrary to the automatic stay provisions in other jurisdictions, Article 207
SchKG does not impose absolute stay on all kinds of legal proceedings. It expressly excludes urgent
proceedings from its scope, and administrative proceedings are subject to discretionary stay. Additionally, the
Swiss Federal Supreme Court has ruled that Article 207 SchKG applies only to "judges and public authorities
in Switzerland" and is not applicable to legal proceedings conducted outside of Switzerland. As a result, Swiss
public policy does not include Article 207 SchKG.
Generally, most national insolvency laws contain provisions that provide for the suspension of legal
proceedings at the time that an insolvency proceeding is initiated. It is observed that the application of
automatic stay provision by various bankruptcy regimes on international arbitral proceedings varies from one
another. The common rationale is that once an insolvent party enters insolvency proceedings, its management
is deprived of its ability to manage the business, including the management of an arbitration case, and the
insolvency administrator is given that authority. This will allow the administrator to become more informed
about the proceedings and take appropriate action. In addition to this, also to safeguard the public policy
concerns in a few jurisdictions. Automatic stays can have a significant impact on ongoing arbitration
proceedings and as seen in the analysis the approach of various countries while imposing a stay on arbitration
proceeding is different from one another. This creates uncertainty and prolongs the duration of the proceedings.
2.1.3 Impact at the time of enforcement of the award
As it has been clearly established above that, the insolvency proceedings have historically been viewed as a
source of disruption in the arbitration world as it may cause to invalidate arbitration agreements and cause to
stay pending arbitration proceedings, the following paragraphs illustrate impact of insolvency on the
recognition and enforcement of arbitral awards, which is one of the most critical indicators of an arbitration's
83
Cosco Bulk Carrier Co Ltd v Armada Shipping SA [2011] EWHC 216 (Ch)
84
Code de commerce 1807, art. L. 622-2; See also Art. 369 Code de procédure civile 1965, art. 369
85
86
Ibid.
87
Swiss federal statute on debt collection and bankruptcy (“Bundesgesetz über Schuldbetreibung und Konkurs”) 1889, art 207
21 | P a g e
success.88 Thus, the full benefit of arbitration is largely dependent on the arbitral award's enforceability in all
relevant jurisdictions. The arbitrators too have an implied duty to issue an enforceable award.89
At this stage, issue of Arbitrability is crucial.90 NYC provides that all contracting states are required to
recognise and enforce arbitral awards, unless one of the specific exclusions applies. Therefore, the local
authorities may refuse recognition where (a) ‘the subject matter of the dispute is not capable by settlement by
arbitration under the law of that country’, or (b) ‘recognition or enforcement of the award would be contrary
to the public policy of that country’.91 A parallel provision can be seen in Article 36(1) of the UNCITRAL
Model law on International Commercial Arbitration resulting in such provisions having been incorporated into
the law in a number of countries.92
The requirement that the dispute concerns “a subject matter capable of settlement by arbitration” refers to the
arbitrability of the dispute.93 This makes the 'arbitrability' of the dispute in the place of recognition and
enforcement crucial at this stage. Because the concept of arbitrability of insolvency-related disputes varies by
country, the enforcement of arbitral awards may be jeopardised. Therefore, the benefits of arbitral awards
under the New York Convention are only applicable to insolvency-related disputes that are capable to
resolution through arbitration and the enforcement of insolvency-related awards is not contrary to public policy
of the country where the enforcement is sought.
In respect of Article V(2)(b) of the NYC, The majority of courts have rejected arguments where the parties
sought the court to discard recognition of an award against a bankrupt or insolvent company based on the
national bankruptcy legislation.94 There are conflicting conclusions regarding this, or example in one case, a
US court refused to recognise a foreign award against a Swedish company that was undergoing bankruptcy
proceedings in Sweden, citing a Swedish public policy of consolidating claims against insolvent parties and
preserving the assets of such companies.95 Payment of award from debtor's estate would conflict with US
public policy of giving effect to Swedish bankruptcy proceedings for equitable distribution of estate's assets,
so default award against bankrupt party was not enforced.
In practise, most international arbitral tribunals have continued with arbitrations despite the fact that one of
the parties was facing bankruptcy proceedings. Furthermore, courts have narrowed their approach to public
policy exceptions and went ahead to enforce arbitration awards. Chapter 5 of this paper will discuss the
88
Vorburger, 2014 (n 40) 201
89
90
Born, (n 5) 26.05 [c] 10pp. 4058
91
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered into force 7 June
1959) 330 UNTS 3 (United Nations), art V (2)(a) and (b)
92
For e.g the German Code on Civil Procedure, Article. 1059
93
UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York,
1958) pp 49
94
In re Fotochrome, Inc., 337 F.Supp. 26 (E.D.N.Y. 1974)
95
Victrix S.S. Co. v. Salen Dry Cargo AB, 825 F.2d 709, 714 (2d Cir. 1987
22 | P a g e
changing attitudes of nations toward public policy exceptions. With an understanding of the role of arbitrability
in insolvency disputes and the impact insolvency has on all stages of an arbitration proceeding, the following
chapter focuses on how different jurisdictions have acted in particular towards the arbitrability of insolvency
disputes.
23 | P a g e
CHAPTER 3: The Legal Developments in Various Jurisdictions Regarding their Approach to the
Arbitrability of Insolvency disputes in the twenty-first century
It is widely accepted that issues relating to the adjudication of insolvency, also known as 'core' insolvency
issues, are inherently non-arbitrable, whereas other issues arising out of one of the parties to a commercial
arbitration agreement are arbitrable. The line that precisely divides the two varies by jurisdiction. Creditors
want their claims approved, maybe with priority.96 If debtor has assets in another country, the necessity for
territorial procedures adds a new dimension to potential issues.97 Courts may clash over jurisdictional problems
in this instance.98
As mentioned earlier, arbitrability is a prerequisite for the arbitration agreement's validity and, thus, the arbitral
tribunal's jurisdiction. Insolvency regulation is one area where a State may limit the arbitrability of certain
categories of disputes.99 Even if there is a valid arbitration agreement it may be regarded as non-arbitrable
according to the law of the jurisdiction where recognition or enforcement is sought. Most courts have
conducted a case-by-case analysis of the law governing arbitrability in relation to the arbitral proceeding where
an insolvent party is involved. The following paragraphs explore the various approaches adopted in different
jurisdictions, canvassing the inherent complexities and how the courts have been grappling with the issue in
the twenty-first century.
3.1 United States
The US Federal Arbitration Act (FAA) is well developed as it sets a strong preference for arbitration when the
parties have agreed to resolve the disputes through arbitration. The parties may agree to have an arbitrator
decide not only not only the merits of a particular dispute, but also the “gateway questions ‘arbitrability,’ such
as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.
“Therefore, In 2019 the US Supreme Court in deciding the role of the court when the issue of arbitrability is
raised held that, in those cases where the parties have delegated the question of arbitrability to an arbitrator,
the court may not override the contract and it is up to the arbitrator to decide of the dispute is arbitrable.100
96
Stephan Madaus, 'The (Underdeveloped) Use of Arbitration in International Insolvency Proceedings', in Maxi Scherer (ed),
Journal of International Arbitration, Kluwer Law International 2020, Volume 37 Issue 4) 449
97
Ibid.
98
Ibid.
99
Doug Jones, ‘Insolvency and Arbitration: An Arbitral Tribunal’s Perspective’ (2012) 78(2) Arbitration: The International
Journal of Arbitration, Mediation and Dispute Management, 123
100
Henry Schein, inc., et al. v. Archer & White Sales, inc., (2018) <https://www.supremecourt.gov/opinions/18pdf/17-
1272_7l48.pdf >
24 | P a g e
The US courts have distinguished early on between international and local agreements in order to expand the
arbitrable subject matter of international commercial arbitration. 101 For instance, In Scherk,102 the parties
agreed to arbitrate in Paris. It was alleged that Scherk’s breach violated the 1933 Securities Act and the 1934
Securities Exchange Act, which raised a question whether that issue of regulatory law could be decided by the
arbitrator. It was held that:
“A parochial refusal by the courts of one country to enforce an international arbitration would not only
frustrate these purposes but would invite unseemly and mutually destructive jockeying by the parties to secure
tactical litigation advantages”
“For all these reasons, we hold that the agreements of the parties in this case to arbitrate any dispute arising
out of their international commercial transaction is to be respected and enforced by the federal courts in
accord with the explicit provisions of the Federal Arbitration Act.”
This decision signifies the objective of the NYC and the primary reason for the United States' adoption and
implementation, was to promote the recognition and enforcement of commercial arbitration agreements in
international contracts and to harmonise the standards by which arbitration agreements and arbitral awards are
observed and enforced in signatory countries.
In general, the United States uses a case-by-case analysis to determine whether to give effect to the arbitration
agreement in bankruptcy and arbitration proceedings. This is because, FAA lacks a definition of objective
arbitrability, it has been left to the courts and legislations to determine which subject matters are capable of
being determined by arbitral tribunals.103 The arbitrability of bankruptcy issues is determined by the
classification of the proceeding as “core” and non-core proceedings. To aid in determining which issues are
“core” the Bankruptcy Code includes a non-exhaustive list of provisions.104
A bankruptcy court decision in the case of former brokerage firm MF Global Holdings Ltd.105 In 2017
emphasises the importance of this distinction for parties seeking to enforce arbitration provisions in U.S.
bankruptcy courts.106 The bankruptcy plan administrator filed a lawsuit in bankruptcy court against Bermuda-
based insurer Allied World Assurance Company Ltd. ("Allied World") to enforce coverage under liability
101
Joseph T. McLaughlin, 'Arbitrability: Current Trends in the United States', in William W. Park (ed), Arbitration International,
(Oxford University Press 1996, Volume 12 Issue 2) 134
102
Scherk v. Alberto-Culver Co., (1974) 417 U.S. 506, reh’g denied, 419 U.S. 885
103
Vorburger, 2014 (n 40) 61
104
28 U.S. Code Section 157 (b)
105
accessed on 06 April 2022
106
MF Global Holdings Ltd. v. Allied World Assurance Co. (In re MF Global Holdings Ltd.), 17-cv-7332 (JSR) (S.D.N.Y. Oct.
30, 2017); see also Jessica Peet, Louise Woods, ‘Policy-Related Complexities In Parallel, Cross-Border Insolvency and arbitration
Proceedings’ (Vinson & Elkins LLP, 19 June 2020 < https://www.jdsupra.com/legalnews/policy-related-complexities-in-parallel-
89352/ > accessed on 06 April 2022
25 | P a g e
policy on excess errors and omissions issued before the bankruptcy filing. The bankruptcy court determined,
first, that a plain reading of the broadly phrased policy demonstrated the parties' agreement to arbitrate any
and all disputes arising out of or in connection with the policy. After establishing that the provision was valid
and binding, the bankruptcy court considered whether Congress intended the disputed claims to be arbitrable.
The FAA reflects congressional policy to enforce valid arbitration agreements.107 Although the dispute
involved the administration of estate assets and could have implicated previous bankruptcy court orders, the
bankruptcy court ultimately concluded that the matter was "non-core," noting that the funds at issue were
relatively small in the context of the case and that the dispute was almost entirely about the parties' pre-petition
relationship. As a result, the bankruptcy court ordered MF Global Holdings to arbitrate the insurance dispute
in Bermuda. thus, the U.S courts have articulated a pro-arbitration standard in determining the arbitrability of
disputes relating to non-core proceedings and have a more specific approach towards determining the core and
non-core matters.
3.2 England
English courts have frequently given broad interpretations to arbitrability in insolvency-related disputes. In a
recent case, Riverrock Securities limited vs International Bank of St Petersburg108 the English Court has held
that the avoidance claims brought in the foreign proceedings fell within the scope of the LCIA arbitration
agreements and were arbitrable as a matter of English law, even though such claims were non-arbitrable under
Russian law.109 While answering one of the issues which was, whether the claims brought before the Russian
court, as a matter of construction, is deemed to be falling outside of the coverage of the LCIA arbitration
agreements, the high court recapitulated the “generous approach “to the construction of arbitration agreements
as espoused in the Fiona trust case and noted that, there should be no place in English law for the ‘presumption
that an arbitration agreement should not extend to claims which only arise on a company’s insolvency”.
Besides, the expansive wording of the parties’ arbitration agreements that read “under or in connection with”
leads to the conclusion that the claims brought before the Russian courts are within the reach of the LCIA
arbitration agreements. If the matter does not trample the clear policy of English law, the courts would uphold
the arbitration agreements.110
107
accessed on 06 April 2022
108
Riverrock Securities limited vs International Bank of St Petersburg [2020] EWHC 2483 (Comm)
109
Velislava Hristova and Boris Praštalo; Arbitrating Insolvency Disputes? The English High Court Showcases Its Pro-Arbitration
Stance Once Again, November 19, 2020 < http://arbitrationblog.kluwerarbitration.com/2020/11/19/arbitrating-insolvency-
disputes-the-english-high-court-showcases-its-pro-arbitration-stance-once-again/ > Accessed on 21 March, 2021
110
Riverrock Securities limited vs International Bank of St Petersburg [2020] EWHC 2483 (Comm);
;Velislava Hristova and Boris Praštalo; Arbitrating Insolvency Disputes? The English High Court Showcases Its Pro-Arbitration
Stance Once Again, November 19, 2020 < http://arbitrationblog.kluwerarbitration.com/2020/11/19/arbitrating-insolvency-
disputes-the-english-high-court-showcases-its-pro-arbitration-stance-once-again/ > Accessed on 21 March, 2021
26 | P a g e
3.3 Switzerland
Arbitrability is a necessary condition for the legality of an arbitration agreement under Swiss law and,
consequently, for the arbitral tribunal's jurisdiction.111 Swiss law defines arbitrable subjects very
broadly.112Article 177 section 1 of the SPIL deals with arbitrability. It states that, any dispute involving
financial interest may be a subject matter of arbitration.113 The Swiss Federal Supreme court has further
contributed guidance on the arbitrability of claims in insolvency context in a decision published in March
2021. The ruling was on the arbitrability of a claim and enforceability of an international arbitral award in the
light of bankruptcy proceedings filed against the respondent in Switzerland.114 The dispute stemmed from an
agreement between a third-party funder and a Swiss company to finance an international commercial
arbitration in Switzerland. The Swiss company terminated the funding agreement, and the third-party funder
challenged the validity of the termination in LCIA arbitration in England. During the LCIA proceedings, the
Swiss company declared bankruptcy, and the Swiss bankruptcy authorities assigned the former director of the
Swiss company the right to defend in the arbitration. The tribunal determined in its final award that the funding
agreement had not been terminated and ordered the Swiss company represented by its former director to pay
the arbitration costs. To claim on the costs awarded, the third-party funder filed a debt enforcement action in
Switzerland. The Swiss company objected to the award's preliminary recognition and enforcement and filed
an appeal, claiming that the dispute was no longer arbitrable (Article V(2)(a), New York Convention) in light
of the Swiss company's bankruptcy. The appeal was dismissed by the Supreme Court. The court emphasised
that under Swiss law, any dispute involving a "economic interest" is arbitrable. Economic interest is a broad
concept that encompasses all claims that have a financial value for at least one party.115 While matters governed
by Swiss insolvency law generally involve an economic interest, they cannot be arbitrated if they are
inextricably linked to the administration of the insolvency proceedings, which are matters over which the
public authorities have exclusive jurisdiction.
3.4 Germany
In Germany, neither the insolvency law nor the arbitration law expressly impacts of insolvency on arbitration
agreement, arbitral proceedings, or award enforcement.116 The German insolvency law does not contain a
111
Sebastiano Nessi, 'Chapter 18, Part X: Insolvency and Arbitration', in Manuel Arroyo (ed), Arbitration in Switzerland: The
Practitioner's Guide (Second Edition), 2nd edition Kluwer Law International 2018) pp. 2688
112
Born 2021, 106
113
International and Comparative Perspectives, (Vol 19, Kluwer Law International 2009). 176
114
Caseno.5A910/2019 <https://www.bger.ch/ext/eurospider/live/fr/php/aza/http/index.php?highlight_docid=aza%3A%2F%2F01-
03-2021-5A_910-2019&lang=fr&type=show_document&zoom=YES&>
115
International and Comparative Perspectives, (Vol 19, Kluwer Law International 2009). 176
116
Stefan M. Kröll, 'Part IV: Selected Areas and Issues of Arbitration in Germany, Insolvency and Arbitration – Effects of Party
Insolvency on Arbitral Proceedings in Germany', in Patricia Nacimiento , Stefan M. Kröll , et al. (eds), Arbitration in Germany:
The Model Law in Practice (Second Edition), 2nd edition Kluwer Law International 2015) pp. 982
27 | P a g e
provision that precludes the debtor from being a party to arbitration proceedings upon the commencement or
commencement of insolvency proceedings. Accordingly, the subjective arbitrability is not affected.117 German
law adopts a liberal approach to arbitrability, with arbitrators having jurisdiction to determine all disputes
relating to bankruptcy proceedings other than pure insolvency disputes such as the appointment of an
administrator, a collection and distribution of assets and the reorganisation of a business.118
"Any claim involving an economic interest" can be submitted to arbitration.119 The term "economic interest"
is to be interpreted broadly in accordance with the legislator's intent. The German Arbitration Law expressly
states that, this general concept of arbitrability is unaffected by any restrictions or limitations imposed by
special statutes.120 The German law contains no special provisions for arbitration proceedings. It establishes
general procedural rules and vests the arbitral tribunal with broad discretion in conducting the proceedings, is
a central provision in German arbitration law.121 It allows arbitration of all pecuniary and non-pecuniary claims
on matters capable of party disposal.122 The preliminary recognition of an insolvency is objectively arbitrable
since it falls within the definition of arbitrable claims under German law. 123 The only matters which are non-
arbitrable are those that involve public policy concerns.124
3.5 India
Insolvency proceedings are generally presumed as non-arbitrable in India as they are proceedings in rem and
involves interests of third parties. This position has been established through several judicial decisions. The
courts here have made a distinction between the right in personam and right in rem and concluded that
insolvency disputes are not arbitrable.125 As far as arbitration in insolvency related matters are concerned the
new insolvency code does not contain any provision that deals with the impact of insolvency proceedings on
arbitration except for the imposition of moratorium.126 On the other hand, the arbitration act contains no
provisions that deal with the corporate insolvency resolution process on arbitration. Although there is no
express categorization of what kind of disputes are not arbitrable, most of the jurisprudence and guidance on
this subject have come from various judicial decisions by the country's apex court.
117
Ibid, 988
118
Nigel Blackaby , Constantine Partasides , et al., Redfern and Hunter on International Arbitration (Sixth Edition), 6th edition
(2015 Kluwer Law International; Oxford University Press) 118
119
Code of Civil Procedure (ZPO) 1877, sec1030 (1)
120
Ibid, sec1030 (3)
121
Ibid, sec 1042
122
Ibid, sec 1030
123
Vorburger, 2014 (n 40). 67
124
Vesna Lazić, 'Cross-Border Insolvency and Arbitration: Which Consequences of Insolvency Proceedings Should be Given
Effect in Arbitration?', in Stefan M. Kröll , Loukas A. Mistelis , et al. (eds), (International Arbitration and International
Commercial Law: Synergy, Convergence and Evolution, Kluwer Law International 2011) 351
125
Swiss Ribbons Pvt. Ltd. vs Union Of India on 25 January, 2019; Booz-Allen & Hamilton Inc vs Sbi Home Finance Ltd. & Ors
on 15 April, 2011
126
Insolvency and bankruptcy act 2016, Section 14
28 | P a g e
Recent amendments to the arbitration act and judicial interpretations are clearly moving India in the direction
of becoming an arbitration-friendly nation. The disputes that are arbitrable and not arbitrable are given more
clarity through a recent judgement by the supreme court; wherein a ‘four-fold’ test was provided to determine
if a dispute is not arbitrable. The circumstances mentioned in the judgment that made disputes non-arbitrable
are; if a subject matter of that suit is related to actions that are in rem in nature, if it has any impacts on the
rights of the third parties requiring adjudication by a centralized authority, if it concerns the legitimate interest
of a sovereign State or if there exists a bar under any other specific legislation for the matter to be arbitrated.
When exactly an insolvency proceeding becomes non-arbitrable is the major issue of concern that has been
substantially clarified by a recent decision of the Supreme Court.127 In Indus Biotech, appellant herein referred
the matter to arbitration, whereas Kotak respondent has filed an application for initiation of corporate
insolvency resolution process against the appellant.128 The matter was first adjudicated at National Company
Law Tribunal (‘NCLT’), who ruled in favour of Indus Biotech, as it didn’t find any default to have occurred.
NCLT also pointed out that the mere existence of debt doesn’t amount to default, and that Indus Biotech is an
efficient and profitable corporation; as such in the absence of confirmed default, the Corporate Insolvency
Resolution Process (‘CIRP’) cannot be initiated and until the latter happens, arbitration proceedings can be
instituted under Section 8 of Arbitration &Conciliation Act. The Supreme court later confirmed the decision
by the NCLT and confirmed that it is only when the CIRP is initiated by the adjudicating authority the issue
becomes in rem and affects the public at large. Whereas, if the court/tribunal finds that that there is no default
and does not initiate CIRP, it can direct both the concerned parties to arbitration. Insolvency and arbitration
jurisprudence in India is still relatively new and growing.129Landmark judgments Indus Biotech show how the
Indian legal system intends to deal with the disparity between the two conflicting regimes.
Most of the jurisdictions have not sufficiently developed to deal with the contemporary nexus of cross-border
insolvency and international arbitration. As a result, most courts have established precedents to support this
position through case-by-case analysis. The Model Law on Arbitration provides for a mandatory stay of any
proceedings; the following chapter will examine whether this provision applies in insolvency proceedings with
reference to the standard of review procedure adopted by courts in common law jurisdictions.
127
Indus Biotech Private Limited vs Kotak India Venture (Offshore), (2021) 2021 SCC OnLine SC 268.
128
Insolvency and bankruptcy act 2016, sec 7
129
Swastik Shukla, Arbitrability of Insolvency Disputes in India,(8 April 2022, Jus Corpus)
<https://www.juscorpus.com/arbitrability-of-insolvency-disputes-in-india/>
29 | P a g e
CHAPTER 4: An Analysis of Stay Provisions in the Model Law on Arbitration in Winding-up

Proceedings and the Differing Approaches of the National Courts
The preceding chapters demonstrated how the insolvency of a party to an arbitration agreement can have an
impact on all stages of an arbitral proceeding, as well as how national courts respond differently to issues of
arbitrability of insolvency-related disputes. Additionally, the extent to which the debtor may utilise the Model
Law on Arbitration stay provision130,which has been incorporated into national laws,131 in order to petition a
national court to stay winding up proceedings initiated by a creditor based on a purported outstanding
contractual debt, is an issue to be considered.
Usually, the debt that arises out of a contract which provides for disputes to be resolved between the parties
by way of arbitration, the debtor herein would seek stay of winding-up court proceedings in favour of
arbitration, contesting the debt.132 In contrast, would want the insolvency regime to involve and preserve
debtor’s assets and maximize the creditor’s recovery.133 So, the discussion below is the extent to which the
winding-up petitions should be stayed in favour of the case on the contested contractual debt being sent to
arbitration and the differing approaches taken by the national courts of Singapore, England and Hong Kong
regarding this question. The Courts have applied different standards of review when it considering the grant
of stay of proceedings in this instance. The courts throughout the world have yet reached an unambiguous
resolution the problem of whether the matter can be resolved in the same way as any other dispute involving
an arbitration agreement, or whether it will treat the matter as an attempt by a company to resist winding-up
proceedings based on a disputed debt.
In common law jurisdictions, the court may wind-up a debtor company if it is satisfied that the company is
unable to pay its debts.134 The debtor-company's refusal to pay, on the other hand, could be the result of an
underlying dispute over whether the sum is truly owed, or of a cross-claim that the debtor may bring against
the creditor. To obtain such a stay under the insolvency regime, the debtor must establish that, there is a
genuine and substantial dispute over the debt cited by the creditor in its application. This is referred to as ‘the
triable issues standard’.135 Due to the fact that the mere filing of a winding-up petition can have a damaging
effect on the debtor company,136 the courts created this standard to strike a balance between two conflicting
interests. This would, however, keep the court proceedings alive in order to avoid encouraging creditors to file
130
Model Law on International Commercial Arbitration (adopted 21 June1985, amended 7 July 2006) UN Doc A/40/17, Annex I
(UNCITRAL), art 8(1)
131
English Arbitration Act 1996, sec 9; Singapore International Arbitration act 1994, sec 6; Hong Kong Arbitration Ordinance
2011, sec 20
132
Darius Chan and Sidharrth Rajagopal, 'To Stay or Not to Stay? A Clash of Arbitration and Insolvency Regimes', (2021) 38(4)
Maxi Scherer (ed), Journal of International Arbitration 457, 458
133
Ibid.
134
For example, The insolvency, Restructuring, and Dissolution, Singapore 2018, sec 125(1)(e)
135
Chan and Rajagopal (n 137) 460
136
Metalform Asia Pte. Ltd. v. Holland Leedon Pte. Ltd. [2007] 2 S.L.R.(R.) 268, para. 59.
30 | P a g e
winding-up petitions in order to enforce disputed debt as winding-up petition is broadly regarded as a
‘draconian’ remedy that should not be invoked at the whim and fancy of the creditor.137 It would also be unjust
to creditors if the debtor-company could avoid winding-up proceedings by claiming that the underlying debt
was disputed or that it had a cross-claim against the creditor.138
While the intersections between arbitration and insolvency law are numerous and complex, a recent case law
has focused on the effect of an arbitration clause on winding-up petitions. The English, Hong Kong, and
Singapore courts have all taken divergent positions on how to resolve winding-up petitions filed in connection
with disputed debts subject to an arbitration clause.
4.1 The Approach of the Singapore Court of Appeal in the VTB Dispute
In this particular dispute, the appellant entered into a share-repurchase agreement with the respondent which
provided for any dispute arising out of it to be resolved through arbitration. The arrangement was essentially
a loan from the respondent to the appellant. When the value of the loan collateral plummeted following
sanctions from the US Treasury, the respondent terminated the agreement and claimed that it was owed USD
170 million. Upon the failure of the appellant to pay the sum, the respondent-initiated winding-up proceedings.
At first instance, the appellant resisted the application on the basis that the underlying debt was disputed on
several grounds. The key question for consideration before the court was the appropriate standard of review
to be applied in cases where the underlying debt to a winding- up application was subject to arbitration.
The Courts in Singapore have consistently maintained that the threshold to obtain a stay or dismissal of
winding-up applications is lowered from that of the triable issues. It is sufficient if the debtor merely shows
that it honestly believes that the dispute exists and that its belief is based on ‘substantial and reasonable
grounds’.139 The SGCA has even gone as far as to find that the court merely needed to be satisfied that there
is a ‘distinct possibility’ that the debtor’s cross-claim would exceed that creditor’s debt before dismissing the
winding up application.140 Therefore, in VTB case the court was faced with the question of what standard of
review should be applied in cases where the underlying debt to a winding-up application was subject to
arbitration. Bound by the decision in the Metalform case, the triable issues standard was applied and the SGHC
rejected the disputes raised by the appellant as not being made bona fide. However, on appeal the SGCA made
a comparative survey across jurisdictions and held that the appropriate standard to apply is the prima facie
standard of review; wherein the court can grant a stay as long as an prima facie evidence of a dispute is shown
137
Pacific Recreation v. S Y Technology Inc. [2008] 2 S.L.R.(R.) 491, para 16-17
138
Pacific Recreation v. S Y Technology Inc. [2008] 2 S.L.R.(R.) 491, para 17-19
139
LKM Investment Holdings Pte. Ltd. v. Cathay Theatres Pte. Ltd. [2000] 1 S.L.R.(R.) 135, para. 20.
140
Metalform Asia Pte. Ltd. v. Holland Leedon Pte. Ltd. [2007] 2 S.L.R.(R.) 268, para 82
31 | P a g e
that is subject to an arbitration agreement and found that the appellant’s case satisfied this standard of review
and consequently reversed the SGHC’s decision and granted stay of the winding-up proceeding.
VTB's position contrasts with that of other common law courts throughout the world, including those that have
adopted the Model Law and those whose mandatory stay regimes are modelled after the Model Law's
mandatory stay regime. One of such examples which is Hong Kong. All these jurisdictions face the challenge
of balancing the need to respect the autonomy of the parties in their decision to resolve disputes through
arbitration with the need to preserve the assets of a potentially insolvent company for the benefit of creditors
at large.
4.2 Approach in England
The English Court's decision in Salford Estates141 demonstrates that the predominating position in England is
to apply the prima facie standard. In this case, it was determined that section 9 of the Arbitration Act 1996's
mandatory stay provision did not apply to winding-up proceedings, as the nature of the proceedings is not
arbitrable.142 The court stated, however, that it should exercise its discretion in winding up a business
company in a manner consistent with the mandatory stay provision, except in 'wholly exceptional
circumstances.'143Additionally, the court suspected that a higher standard would encourage parties to avoid
arbitration by resolving their debts through a winding-up application when an agreement contains an
arbitration clause.144 The English courts have consistently applied Salford Estates in subsequent cases. For
example, in Fieldfisher145following the position in taken by the court of appeal in Salford Estates and granted
stay despite the ‘apparent acceptance' of the defendant that it owed the applicant money, the court was not
convinced that the situation qualified as 'exceptional' enough to justify the stay being revoked. 146 Fieldfisher
thus demonstrates that, despite the court's reluctance to grant a stay due to the debtor's apparent lack of merit,
it would do so in order to give effect to the arbitration agreement.
4.3 Approach in Hong Kong
Hong Kong on the other hand, has recently shown a shift towards triable issues standard. In the decision in
Lasmos,147 while adopting the English position in Salford Estates,148 the court added an important condition
to be satisfied before the grant of stay; wherein the debtor company must have taken steps to commence
arbitration pursuant to the arbitration agreement.149 The intention behind this is to prevent debtors from stalling
141
Salford Estates (No. 2) v. Altomart Ltd. [2014] EWCA Civ 1575
142
Ibid., para 48
143
Ibid., para 39
144
Ibid., para 38
145
Fieldfisher LLP v. Pennyfeathers Ltd. [2016] EWHC 566
146
Ibid., para 37
147
Lasmos Ltd. v. Southwest Pacific Bauxite (HK) Ltd. [2018] HKCU 702
148
Lasmos Ltd. v. Southwest Pacific Bauxite (HK) Ltd. [2018] HKCU 702, para 25
149
Lasmos Ltd. v. Southwest Pacific Bauxite (HK) Ltd. [2018] HKCU 702, para 31
32 | P a g e
winding-up applications even if they do not intend to arbitrate.150 However, the recent decision cast doubt on
the Lasmos approach's applicability. In But Ka Chon the Hong Kong court of appeal remarked that the Lasmos
approach was a ‘substantial curtailment’ of a creditors statutory right to wind-up a debtor.151 Instead, the court
in But Ka Chon preferred a more flexible approach in which it would exercise its discretion with regard to
various factors while still giving arbitration significant importance.152 For instance, it briefly considered
shortening the duration of the stay to ensure that the debtor party genuinely initiated arbitration proceedings.153
Furthermore, In Dayang,154 it was noted that issues of party autonomy were only raised if the court took over
the function of the arbitral tribunal in deciding conclusively on the disputed debt.155 So, even if the triable
issues standard were applied, the court would not be deciding on the merits of the parties' dispute – that
authority would ultimately rest with the liquidator.156 The court also reasoned that common law countries did
not speak in unison in favour of the prima facie standard. Moreover, the court stated that, in the context of the
exercise of discretion, the existence of an arbitration agreement should be regarded as 'irrelevant'. 157 This
indicates that the position in Hong Kong is less debtor friendly compared to England and the winding-up
proceedings weigh higher than the arbitration agreement itself.
4.4 Do Disputes Over an Underlying Debt in Winding-Up Petition Fall Within the Scope of the Article
8(1) of the Model Law?
Customarily, it has been assumed that winding-up petitions do not fall under the arbitration statute's stay
regime. As already mentioned above, according to the UNCITRAL Digest on the Model Law, courts have
generally held that insolvency proceedings, such as petitions for liquidation in court, are not subject to
arbitration agreements but rather fall under company or insolvency law. However, that is not to say that every
underlying issue subject to arbitration is automatically non-arbitrable. The position in Singapore it has been
established in Tomolugen that the court is required to make an inquiry by looking into the practicality and
common-sense in determining whether any of the issues raised during the course of the dispute would
constitute a "matter" subject to and capable of resolution by arbitration under Section 6 of the IAA. Thus, as
provided in section 6 IAA unless exceptions are met the stay of an action in favour of arbitration shall be
granted on a prima facie basis. Nothing in the language of section 6 suggests that a stay could be denied for
any reason other than those listed in the provision itself.
150
But Ka Chon v. Interactive Brokers LLC [2019] HKCA 873 para 53
151
Ibid, para 63
152
Ibid, para 71
153
But Ka Chon v. Interactive Brokers LLC [2019] HKCA 873
154
Dayang Marine Shipping Co. Ltd. v. Asia Master Logistics Ltd. [2020] HKCU 494
155
Ibid., para 68-70
156
Ibid., para 71-76
157
Ibid., para 136
33 | P a g e
Interestingly, in the VTB case the issue on the application of the stay did not appear to have been argued.
However, considering the approach in Tomolugen the dispute over the underlying debt in VTB perhaps falls
within the scope of section 6 IAA as the dispute over the underlying debt constitutes a substantial issue that
was subject to arbitration. This in contrast to the view in Hong Kong, while interpreting the wording of Article
8 (1) HKCA believed it is in fact the transaction or contract which is the subject matter of the arbitration
agreement and not the insolvency proceeding. Accordingly, observed that insolvency proceeding did not
constitute a ‘subject matter’ under section 20 of the Arbitration Ordinance158 and this did not engage the
mandatory stay regime. Furthermore, in a winding-up petition where the underlying debt is disputed, it is not
yet proven if the alleged debtor company owes payment, and thus insolvency policy concerns cannot be strictly
engaged. Essentially, in the current context, the putative creditor is relying on a debt to make it look like the
debtor is insolvent for the purposes of the winding-up petition. Therefore, as far as the debt is disputed, relying
on public policy considerations arising from the insolvency regime may be putting the cart before the horse,
as resolution of the underlying debt is a necessary precondition for any presumption of insolvency.
The principles underlying the application of mandatory stay regime is different in various jurisdictions. It
appears that the courts will have to apply the standard of review in every case that is presented before it as
there is no statutory law guiding the courts. In comparison of England, Singapore, and Hong Kong, it appears
that the Singapore courts' approach balances the rights of debtors and creditors.
158
Operative provision giving effect to Article 8(1) of the Model Law in Hong Kong
34 | P a g e
CHAPTER 5: Narrowing jurisprudence on public policy exception under Article V(2)(b) of the New
York Convention to ease enforcement of cross border insolvency Awards
Article V(2)(b) NYC refers to the "public policy of that country," which is commonly meant to imply the
public policy of the country seeking enforcement of the award159 As it has been discussed above, the Article
V (2)(b) allows a signatory nation to deny recognition or enforcement of an arbitral award if it would be
contrary to the public policy of that country. Traditionally, U.S courts have interpreted the public policy
defence under the NYC narrowly, it is applicable only where “the forum state’s most basic notions of morality
and justice” are triggered.160 From the early approach of the United States courts to recent developments in
the judicial interpretation of Indian courts, it is clear that arbitration has developed into the most viable option
for resolving commercial disputes. It is observed that in recent years, efforts have been made to harmonise the
standards of the NYC public policy defence in the context of insolvency law on a transnational level.
5.1 US an early approach to public policy defence
In an early decision, the United States has accepted the principle that, arbitration agreements should ordinarily
be enforced despite the bankruptcy of one of the arbitration parties. Some recent cases have held that an
arbitration clause will be enforced in a bankruptcy case even if the issue is considered 'core,' so long as the
arbitration does not hinder the bankruptcy code's objectives. The law in the United States has set a precedent
by narrowly construing the public policy defence in insolvency-related matters, and it is undeniably evolving
in favour of the enforcement of arbitration agreements in bankruptcy cases.
5.2 India – Changing its Approach
Recently, India has finally witnessed a green signal to the biggest barrier that blocked the enforcing of the
foreign arbitral award relating to cross-border insolvency disputes in India. The standpoint of vulnerability
that arise in the judicial interpretation of ‘public policy’ defence against enforcement of foreign arbitral award
is the enlarged scope of ‘public policy’ in the judicial precedents of the Apex court. The Supreme Court
Decision in Oil & Natural Gas Corpn.Ltd vs Western Geco International Ltd on 4 September, 2014 support
this claim. The court here was of the view that while interpreting the phrase “public policy of India”, section
34 of the arbitration act in context should be given wider meaning. It further states that the matter is within the
scope of public good or public interest is varied from time to time. Moreover, even as recently as 2020, in
National Agricultural Cooperative Marketing Federation of India VS Alimenta S.A161 At the enforcement
159
Vorburger, 2014 (n 40) 218
160
Parsons & Whittemore Overseas Co., Inc. v. Societe Generale De L’Industrie Du Papier (RAKTA), (2d Cir. 1974) 508 F.2d
969, 976
161
National Agricultural Cooperative Marketing Federation of India vs. Alimenta s.a (2020) Civil Appeal NO.667 of 2012
<https://main.sci.gov.in/supremecourt/2010/37543/37543_2010_31_1503_21810_Judgement_22-Apr-2020.pdf >
35 | P a g e
stage, the Supreme Court erroneously reviewed the merits of the award and refused to enforce a foreign arbitral
award on the grounds that it violated the export policy and thus violated "public policy."
In this regard it was imperative that excessively broad interpretations of ‘public policy’ would make it difficult
to enforce the otherwise valid arbitral awards in India and make foreign companies hesitant to enter into
commercial arbitration agreements with Indian parties. With this in mind, the scope of ‘public policy’
exception in line with changes to section 48 of the arbitration act which pertains to conditions for enforcement
of foreign award is narrowed by the amendment act 2015. These changes reflect the pro-enforcement bias of
the New York Convention. The amended provision stipulates that award would be contrary to public policy
of India only if (a) the making of the award was induced or affected by fraud or corruption; (b) the award was
in contravention with the fundamental policy of India law; or (c) if the award is in conflict with the most basic
notions of morality and justice. Narrowing the scope of the "public policy" exception is a step in the right
direction toward making arbitration law more reliable and efficient in terms of enforcing foreign awards on a
global scale.162 The same approach is adopted for enforcement in a few recent cases of the Supreme Court.
The same approach is seen to have been taken for enforcement of cross border insolvency judgements.
The Supreme Court of India seems to have taken an approach in this direction in Vijay,163 wherein a narrowed
scope of interference under Section 48 of the taken. The question here was, if breach under Foreign Exchange
Management Act (FEMA) can be held to be a violation of the fundamental public policy of the India law.
Through this judgement, the court clarified that, the violation of the fundamental policy of Indian law, which
is a subset of the public policy ground must amount to a breach of some legal principle or legislation inherent
to Indian law and this cannot be compromised. “Fundamental policy” refers to the core values of India’s public
policy as a nation, which may find expression not only in statutes but also time honoured, hallowed principles
which are followed by the courts. Thus, with reference to this point of view, it was held that breach under
FEMA cannot be a violation of the fundamental public policy of Indian Law. Similar approach was taken by
the Delhi High Court in in 2017164wherein it was emphasised that the “Width of the public policy defence to
resist enforcement of a foreign award, is extremely narrow” and that “a contravention of a provision of law
is insufficient to invoke the defence of public policy when it comes to enforcement of a foreign award”.
In the Context of cross-border insolvency, the Insolvency Law Committee report of 2018,165 recommends
Indian courts to consider the existing international jurisprudence along with domestic interpretations of public
162
Ameya Vikram Mishra and Shatakratu Sahu, The Ghost of the “Public Policy” Exception :Saving Cross Border Insolvency
from the Fate of Foreign Arbitral Award Enforcement in India, (Investment & Commercial Arbitration Review, 6 February 2022
<https://investmentandcommercialarbitrationreview.com/2022/02/the-ghost-of-the-public-policy-exception-saving-cross-border-
insolvency-from-the-fate-of-foreign-arbitral-award-enforcement-in-india/> Accessed 9 April 2022
163
Vijay Karia and others vs. Prysmian Cavi E Sistemi Srl & Ors (2020) Civil Appeal no. 1544 of 2020
<https://main.sci.gov.in/supremecourt/2019/11180/11180_2019_4_1502_20493_Judgement_13-Feb-2020.pdf>
164
Cruz City 1 Mauritius Holdings vs Unitech Limited, (2017) <https://indiankanoon.org/doc/58509699/>
165
Ministry of Corporate Affairs Government of India, Report of Insolvency Law Committee on Cross Border Insolvency, 2018 <
https://www.mca.gov.in/Ministry/pdf/CrossBorderInsolvencyReport_22102018.pdf>
36 | P a g e
policy.166 It refers to some examples such as US, where in some major instances where the public policy
exception was applied relate to cases where the recognition/relief sought in foreign proceedings amounted to
abuse of automatic stay order of a US court by foreign insolvency proceedings,167 violation of US privacy and
criminal laws168and cases which have a detrimental effect on technological innovation in the US by disregard
of the US patent licencing agreements.169 These examples share a design and intent of amendments made in
2015 to the section 48 of the arbitration act which made the ambit of “public policy” precise.
The globalisation of trade and the opening up of the Indian economy has made it extremely important to deal
with issues relating to cross-border insolvency.170 As noted above, the biggest impediment to enforcement to
enforcement of foreign awards has been unfavourable and inconsistent jurisprudence of the ‘public policy’
exception. The 2015 amendment to section 48 of the arbitration act, coupled with judicial precedents like Vijay
Karia and Cruz city has introduced in a more business-friendly trend and image as a global commercial hub
has reached a new level. Notably, 2020-2021 was the year of highest foreign investment of USD 81.7 billion
in India.171
166
Ibid, 3.5
167
In re Gold & Honey, Ltd., 410 B.R. 357 (Bankr. E.D.N.Y. 2009); Also see para UNCITRAL Model Law on Cross-Border
Insolvency: Judicial Perspective 1 July 2011, para 53 and 89-90; Ministry of Corporate Affairs Government of India, Report of
Insolvency Law Committee on Cross Border Insolvency, 2018, 3.5
168
In re Toft, 453 B.R. 186 (Bankr. S.D.N.Y. 2011); Also see para 54 and p. 99 of the UNCITRAL Model Law on Cross- Border
Insolvency: Judicial Perspective 1 July 2011.
169
In re Qimonda AG, 462 B.R. 165 (Bankr. E.D. Va. 2011)
170
The report of the High Level Commmitte on law relating to insolvency and winding up of companies, 2000,
<https://www.mca.gov.in/bin/dms/getdocument?mds=1R6RtYjNxSM%252BggMu10%252F12w%253D%253D&type=open >
171
Ministry of Commerce &Industry, ‘ India attracted highest ever total FDI inflow of USD 81.72 billion during 2020-2021 10 %
more than the last financial year <https://pib.gov.in/PressReleasePage.aspx?PRID=1721268> Accessed 27 April 2022
37 | P a g e
CHAPTER 6: No Uniform Solution to Cross-Border Insolvency Disputes in International Commercial

Arbitration
National sovereignty restricts a court's jurisdiction to individuals and property located within its territory.172
As a result, insolvency proceedings are frequently initiated in each jurisdiction in which the debtor owns
property.173 The preceding chapters demonstrated how national insolvency regimes contain a variety of
measures that could materially affect any pending international arbitration. Considering the varying scope of
insolvency processes in different jurisdictions, the Vivendi-Elektrim dispute illustrates an important point
that, there is no universally applicable standard approach. The various approaches taken by jurisdictions to the
potential impact of certain insolvency proceedings on arbitration highlighted above demonstrate that, there is
no universal solution for determining whether arbitration proceedings should continue. This will vary
depending on the stage of the insolvency proceedings, the jurisdiction in which they were initiated, the seat of
the arbitration, and the jurisdiction over the insolvent party's assets.
Furthermore, clashes between national insolvency regimes can be seen in the application of the mandatory
stay of arbitration provided by Article 8 of the UNCITRL model law for international commercial arbitration
against winding up proceedings. It is observed that principles in England and Hong Kong are diametrically
opposed to each other. While English courts have demonstrated a strong preference for the prima facie standard
of review and showcased a debtor-friendly approach, Hong Kong has recently adopted the triable standard of
review and taken a creditor-friendly stance. The point here is that national insolvency regimes approach this
issue fundamentally differently, making uniformity in approach extremely difficult.
The real concern is that neither of the two regimes contains any explicit provisions on how such foreign
insolvency proceedings would affect arbitration proceedings or arbitration-related court proceedings. National
Courts and legal literature around the world have yet to address these issues based on the underlying principles
and goals of both areas of law. The most recent development in the effort to regulate the interaction between
insolvency and arbitration is that the IBA's insolvency and arbitration group has identified a need for guidance
in identifying and evaluating the legal issues that may arise in this area. A significant portion of the toolkit
consists of national reports from 19 jurisdictions based on survey questions designed to understand how the
laws of the surveyed jurisdiction approach questions concerning the intersection of the two regimes. It also
includes an explanatory report that summarises the approach seen in the national reports and elaborates on the
differences between the responses provided. It also includes a checklist that arbitrators, parties, and counsel
can use to assess the potential impact of national insolvency on arbitration. Even though the toolkit is not
designed to be exhaustive of all possible differences that may arise, it is significantly useful as it aids in
172
Paul H. Zumbro, 'Cross-Border Insolvencies and International Protocols - An Imperfect but Effective Tool' (2010) 11 Bus L
Int'l 157, 160
173
Gropper, 204
38 | P a g e
recognising and addressing the potential impact of insolvency on the arbitral proceeding as early as possible
is frequently the key to avoiding upcoming risks.
6.1 Recommendation
International arbitration has received increased attention in recent years as a means of resolving cross-border
insolvency disputes. The objective is to leverage numerous characteristics of international arbitration in order
to circumvent the limitations of national courts in dealing with cross-border insolvencies. Those involved in
cross-border insolvencies have been trying to find ways to rationalise them, but the solutions that have been
developed thus far may not be sufficient in achieving the goals of such proceedings.
Identifying the urgent need to unify international insolvency law, the Model Law on Cross Border Insolvency
was drafted174 to achieve its goal of assisting states in equipping their insolvency laws with a modern,
harmonised, and fair framework to more effectively address occurrences of cross-border proceedings
involving debtors facing insolvency.175 To promote harmonization and centralization, the model law puts
forward a company’s ‘centre of main interest’ (COMI) which presumably would have a principle
responsibility for managing the insolvency.176 However, the Model Law's success has been limited, according
to some commentators, due to its limited international adoption177 and the difficulties involved in identifying
a specific COMI178 and also argues that The model law is simply not designed to deal with the insolvency of
multinational corporations with multiple subsidiaries in various jurisdictions.179 The Model Law's failure to
completely bridge the gap between unique domestic insolvency laws has resulted in ongoing complexities in
adjudicating cross-border insolvencies in multiple jurisdictions. One of the alternatives to streamline the cross-
border insolvencies in multiple jurisdictions proposed by one of the author Justice Allan L. Gropper is
international arbitration “as a new approach to achieve the goals espoused Insolvency by the Insolvency Model
law in world without an international court or another means to exercise authority over disparate national
proceedings”.180
174
Chandra S Mohan, “Cross-border insolvency problems: Is the UNCITRAL Model Law the Answer?”21 International
Insolvency review 199 pp 200
175
Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency, UNCITRAL (2013) at para 1 [Guide],
Online: https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/1997-model-law-insol-2013-guide-
enactment-e.pdf
176
GROPPER pp 202
177
Mohan, at 208
178
Mohan, at 208
179
Gropper 208-209, While the Model Law recognises that a debtor may have assets located in multiple jurisdictions, it
presupposes that all of these assets are held by the same entity. On the other hand, the majority of large corporations today operate
on a global scale through a network of discrete subsidiaries that are legal entities distinct from the parent corporation; (“No
provisions in the Model Law or EU Regulation effectively deal with enterprises comprised of multiple entities or business groups.
The ancillary case model on which they both rely is designated for the benefit of a single legal unit that seeks limited relief in
another jurisdiction”)
180
Gropper pp 202
39 | P a g e
Use of arbitration in Cross-border insolvency is no new concept, despite its recent rise in popularity. In 2007,
International Insolvency Institute made a recommendation to UNCITRAL regarding the greater use of
international arbitration in international insolvency cases. The International Insolvency Institute was referring
to the widespread enforceability of arbitration awards, which can only be refused on very narrow procedural
grounds under the New York Convention. It proposed several uses for arbitration in cross-border proceedings,
claiming that combining court orders and arbitration would speed up proceedings and improve the
international enforceability of court bankruptcy orders.
There are, however, certain challenges to using arbitration in all insolvency related matters that must be taken
into consideration. To begin, arbitrability continues to be a concern, as cross-border insolvency raises both
third-party rights and public policy concerns. Not all matters in a cross-border insolvency can be arbitrated,
and those that are wrongly submitted may be denied enforcement.181 Another concern is the difficulty in
obtaining consent, as in some situations, pre-existing arbitration agreements will not be enforced if one of the
parties’ files for creditor protection or bankruptcy. As a result, the parties would have to agree to arbitration
after the dispute has already arisen. This is a problem because obtaining consent becomes far more difficult at
this point.182 However, Justice Gropper appears to suggest that consent to arbitration would be granted due to
"its potential to save significant going concern value and avoid the costs and uncertainties associated with
duplicate parallel proceedings and extended litigation in multiple courts."183 Nevertheless, these concerns are
immaterial in resolving a dispute between affiliate debtors regarding the allocation of proceeds, and it is widely
accepted that such disputes are more effectively resolved through arbitration.184
When a multinational corporation's assets are subject to multiple courts' jurisdiction, a coordinated effort to
sell the assets for a single "enterprise value" may be beneficial to all affiliate entities.185 Arbitration may aid
in allocating this enterprise's value after it is sold, not only among affiliated debtor estates, but also among
major shareholders and secured/unsecured lenders based in different jurisdictions.186 A coordinated process
before a panel of arbitrators selected by the parties may mitigate the risk of double recovery and result in an
award that is enforceable in multiple jurisdictions.187
181
NYC Article V(1)(a) Article V(2)(a)
182
Allan L Gropper, ‘The arbitration of cross-border insolvencies’,[2012] 86 Am. Bankr. LJ 204, 229
183
Ibid, 222
184
Ibid, 227
185
Edna Sussman & Jennifer L Gorskie, “Capturing the Benefits of Arbitration for Cross Border Insolvency Disputes” in Arthur
W Rovine ed, Contemporary issues in International Arbitration and Mediation: The Fordham Papers 2012 (Boston: Martinus
Nijhoff Publishers, 2013 at 169
186
Ibid
187
Ibid
40 | P a g e
Given these advantages, arbitration is still rarely used in cross-border insolvencies. The Nortel allocation
proceedings188provide a unique insight into the possibilities for arbitration in cross-border insolvency disputes.
Nortel case gained popularity not only because of the unprecedented nature of its concurrent proceedings in
US and Canadian courts, but also because of the sheer magnitude of its litigation costs, which is up to $2
billion. This dispute arose over the allocation of $7.3 billion in proceeds from the sale of assets owned jointly
by the parties, and the US and Canadian courts had to decide whether to resolve the issue themselves or refer
the parties to arbitration. While the courts were correct in refusing to refer the parties to arbitration in the
absence of a valid arbitration agreement, the litigation that ensued demonstrates how arbitration could have
played a much more significant role in this case. However, this seven-year legal battle concluded in 2017 with
a settlement.
The Nortel Case is a good example to demonstrate that arbitration may be used to resolve issues that arise in
a cross-border insolvency proceeding, especially when affiliate debtors disagree about how proceeds should
be allocated. Since arbitration has proved to be highly successful in attaining the desired global settlement in
insolvency proceeding, it is important at this stage to bring in some uniformity and harmonization in the
UNCITRAL model law for arbitration with regard to this issue. The author believes that it is understandable
that arbitration cannot replace national courts in dealing with core insolvency matters involving public policy
concerns and third-party interests, but it can efficiently aid to streamline the process in resolving non-core
insolvency matters. There may be numerous obstacles to overcome in developing a functional and acceptable
arbitration scheme for cross-border insolvency and restructuring cases, the obstacles appear manageable with
creativity and persistence. A long road lies ahead in the harmonisation of national approaches to international
commercial arbitration and cross-border insolvency. With companies experiencing financial difficulties
because of the global COVID-19 pandemic, insolvency concerns are bound to rise. In light of this, until
harmonisation happens, the IBA toolkit simplifies the process by assisting parties, counsel, and arbitrators in
identifying the legal issues that may arise in this area and evaluating the range of potential responses and/or
solutions.
188
Re Nortel Networks Corporation et al, (2014) ONSC 6973
41 | P a g e
Conclusion
Companies have not yet recovered from the effects of the COVID-19 Pandemic, and system’s resilience is
being tested like never before. There are still a growing number of businesses that are vulnerable to financial
difficulties in the coming years. As demonstrated by the cases discussed in this paper, arbitration has been
shown to be an effective method of resolving cross-border insolvencies. However, as the two regimes have
fundamental conflicting principles, there are some drawbacks to using arbitration in all insolvency-related
matters. Certainly, core insolvency related matters need to be decided by specialised courts. Arbitration is a
practical option for non-care insolvency matters.
The crux of the controversy in insolvency-related matters is the complexities inherent in these matters because
of differing national legal approaches. The Vivendi-Elektrim served as a good example in this regard. The
divergent approaches to arbitrability, public policy, and the imposition of automatic stays on arbitration
proceedings all contributed to the lack of uniformity. In determining the stay regime under UNCITRAL Model
Law on International Commercial Arbitration in winding-up petitions, various standards of review are applied,
resulting in conflicting outcomes in various jurisdictions.
In conclusion, while most countries have taken a pro-arbitration stance in determining insolvency matters
when an arbitration clause or proceeding is involved, it becomes difficult for the parties when jurisdictions do
not take a consistent approach to similar matters. It gives the impression of unpredictability and uncertainty.
With arbitration gaining popularity as a method of resolving disputes and insolvency becoming more
prevalent, it is critical to harmonise international laws governing cross-border insolvencies and international
commercial arbitration. It is the most viable method of obtaining final and binding orders and avoiding the
complications associated with litigating in multiple jurisdictions.
42 | P a g e
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46 | P a g e
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Arbitration and International Commercial Law: Synergy, Convergence and Evolution, Kluwer Law
International 2011)

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1|Page

THE INTERACTION OF ARBITRATION AND INSOLVENCY: THE

LAW 7002Y “DISSERTATION- MASTER OF LAWS-LAW: GENERAL”

DATE OF SUBMISSION: 9 May 2022

Word count: 13142

List of Abbreviations ......................................................................................................................................... 5

1.1 Applicable law ........................................................................................................................................ 14

CHAPTER 2: Arbitrability of Insolvency Disputes ....................................................................................... 15

2.1.1 Impact at the Start of the Proceeding .............................................................................................. 17

2.1.3 Impact at the Time of Enforcement of the Award ........................................................................ 20

the Insolvency Disputes in the 21st Century .................................................................................................... 23

3.1 United States ........................................................................................................................................... 23

3.2 England ................................................................................................................................................... 25

3.3 Switzerland ............................................................................................................................................. 26

3.4 Germany ................................................................................................................................................. 26

3.5 India ........................................................................................................................................................ 27

4.2 Approach in England ............................................................................................................................. 31

4.3 Approach in Hong Kong……………………………………………………………………………….31

8(1) of the Model Law? ................................................................................................................................... 32

Convention to Ease Enforcement of Cross-Border Insolvency Awards ......................................................... 34

5.1 US – An Early Approach to Public Policy Défence .............................................................................. 34

5.2 India – Changing its Approach ............................................................................................................... 34

CHAPTER 6: No Uniform Solution to Cross-Border Insolvency Disputes in International Commercial

6.1 Recommendation .................................................................................................................................... 38

IBA International Bar Association

UNCITRAL United Nations Commission on International Trade Law

NYC New York convention

ICC International Chamber of Commerce

LCIA London Court of International Arbitration

PBRL Polish Bankruptcy and Restructuring Law

SPILA The Swiss Private International Law Act

PIL Portuguese Insolvency Law

NCLT National Company Law Tribunal

CIRP Corporate Insolvency Resolution Process

SchKG Swiss federal statute on debt collection and bankruptcy

Word count: 254

Structure of this paper

CHAPTER 2: Arbitrability of insolvency disputes

2.1.1 Impact at the start of the proceeding

2.1.2 Impact on the ongoing proceeding

2.1.3 Impact at the time of enforcement of the award

3.1 United States

CHAPTER 4: An Analysis of Stay Provisions in the Model Law on Arbitration in Winding-up

4.2 Approach in England

4.3 Approach in Hong Kong

5.1 US an early approach to public policy defence

5.2 India – Changing its Approach

CHAPTER 6: No Uniform Solution to Cross-Border Insolvency Disputes in International Commercial

1. “Societe Nationale Algerienne Pour La Recherche, La Production, Le Transport, La Transformation et

1. Council Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings [2000]

1. Born, G. B. (2020). International commercial arbitration, Kluwer Law International BV.

2. Law, U. N. C. o. I. T. (2005). Legislative guide on insolvency law, United Nations Publications.

4. Vorburger Simon, ‘International Arbitration and Cross-Border Insolvency: Comparative

Edited chapters in books

1. Allan L Gropper, ‘The arbitration of cross-border insolvencies’,[2012] 86 Am. Bankr. LJ 204

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