The Need to Address Potential Insolvency Issues at the Stage of Contract Negotiation

Abstract

The utility of international commercial arbitration is to provide redressal and resolution in disputes arising out of international trade and commerce. Entities may not care much about development of arbitral jurisprudence but the outcome which has quantified damages. A conflicting obstacle, rather a dead end, surfaces when a party to an arbitration agreement is hit by the trappings of insolvency. Such circumstances potentially defeat the entire purpose of an arbitration agreement leaving the creditor effectively remediless. This paper examines the need to address potential insolvency and why it is important to take pre-emptive measures at the time of contract negotiation.

1. INTRODUCTION

International arbitration is a manifestation of party autonomy, free will to engage in transnational trade, and a sought after dispute resolution mechanism that safeguards and promotes international trade and commerce. The New York Convention[1] is the global voice and assent which backs and supports the idea of arbitration, and for an arbitration to be successful; the Convention lays down the law for recognition and enforcement of foreign arbitration awards – the test of a successful arbitration. Since international arbitration still hits a deadlock when insolvency is triggered, it would be ideal to pre-empt such a scenario and address it beforehand, while negotiating contracts, because what emanates after insolvency is triggered, leaves less or no room for the parties to breathe in. The New York Convention may have been the most successful private international law in the world, but even that fails[2] to address such a conflict, and rather adds to it.

2. THE INTERSECTION

While international arbitration and domestic insolvency are conceptually different – the latter focusing on centralisation of all proceedings against the debtor to one location and the former advocating a decentralised approach vested in party autonomy in the world of economic trade – there comes a point of intersection when one of the parties to an international arbitration is subject to insolvency proceedings in its home State. This may happen before or during arbitration, or even at the stage of enforcement of an award.

The interaction of insolvency and arbitration not only creates conflict of laws issues, but issues of primacy in adjudication[3]. Insolvency law may result in the preliminary suspension of all litigation including arbitration, yet arbitration law may not take insolvency into account and not recognise such a stay. When the insolvency is of a multinational business, the problems increase. Such cases are increasing with globalisation and the increased use of arbitration[4].

Therefore the interaction is an important matter to consider.  Failing to recognise insolvency could jeopardise the enforceability of the arbitral award, whether in domestic or international arbitration. Insolvency is often considered State public policy[5]. Hence, on an international plane ignoring the insolvency recognised in the seat risks setting aside under adoptions of Article 34(2)(b)(ii) of the UNCITRAL Model Law on International Commercial Arbitration[6] or similar provisions in national laws[7]. A tribunal dealing with an insolvent party or a party facing insolvency proceedings, must decide the relevant law to apply to determine the impact of the possible/insolvency on the disputed matter. A common approach is for the tribunal to apply the lex fori or the law of the seat of arbitration. Therefore the essential issue is the international public policy of the seat in the sense of Article V(2)(b) of the New York Convention[8].

Deciding upon the conflict of laws rules to apply becomes difficult[9] without a clear lex fori. The tribunal has a conflict of laws problem[10]. Three main approaches to the issue are:

  1. the seat’s insolvency specific conflict of laws system;[11]
  2. the seat’s international private law conflict of laws system; and
  3. any mandatory rules from the lex fori concursus.[12]

The tribunal is not even bound by the conflict of laws systems of the seat jurisdiction, but that system has an important impact in the interaction between the award and the wider world. Choosing the insolvency specific conflict of laws rules is a logical route, but in the significant case of Vivendi v. Deutsche Telekom, the Swiss Supreme Court preferred the second option and translated all issues to a private law conflict of laws system, applying the Swiss Private International Law.[13]

Applying the mandatory rules approach ties in the arbitration way of thinking. Mandatory rules need to be adhered to so awards may be enforced. Mandatory rules include the lex fori concursus[14] and the mandatory rules of the seat. However, the tribunal can be left with an incomplete conflict of laws framework as not all rules are mandatory. Some mandatory rules in lex fori concursus and from seat may conflict. The tribunal would have to choose the mandatory rules with the associated risk of unenforceability of the award. As a precaution it is probable that a tribunal would choose to apply the mandatory rules of the seat to prevent setting aside action.  In this difficult area, the tribunals often directly apply particular insolvency laws without in depth discussion[15].

It is crucial to classify the particular insolvency issue that the tribunal is dealing with[16]. A different qualification can lead to a different applicable law depending on the conflict of laws system. Many courts see the impact of insolvency on arbitration as a question of party capacity so they apply the conflict of laws rules dealing with capacity. Other tribunals see the issue as the validity of the arbitration agreement[17], leading to applying different conflict of laws rules[18].

The question can also be addressed from the lex causae. This leads to a presumption of validity; one needs to apply the chosen law and its characterisation to determine if that law was chosen validly. If there is no chosen law, this is problematic as there is no starting point. Furthermore, the law chosen to govern the merits of a case often is not the law governing the insolvency. The characterisation can be decided via the lex fori concursus, the law of the insolvency forum, but this would also start with a presumption of applicability.[19]

Finally, there are a range of comparative and functional approaches to the issue. Comparative approaches take into account several legal systems. Functional approaches do the same but keep the focus on the lex fori. These methods balance the lex fori approach and the lex causae approach[20]. Together they can be viewed as opposing options based in the territorial and contractual approaches. Therefore, one could consider this the hybrid option.

The applicable law is critical in international arbitration and cross-border insolvency. Different laws may govern different parts of the arbitration: the law applicable to the merits, the law applicable to the procedure and the law applicable to the arbitration agreement. To determine the effects that any insolvency has on the arbitration, the tribunal will have to make another conflict of laws determination.

Approaches in literature range from the pragmatic to the highly theoretical regarding managing the applicable law. Tribunals like pragmatic, direct approaches, avoiding complex choice of law discussions. The complex arbitration to seat relationship means, with the associated legal theory, that there is not a right or wrong way to determine the law applicable to the impact of the insolvency on an arbitration; it is more a case specific determination. This creates uncertainty and unpredictability but gives freedom of manoeuvring to the tribunal[21]. The parameters of this freedom are the mandatory rules and the international public policy of the seat. The tribunal acts within these parameters to reduce the risk of setting aside later.  One key consideration for the tribunal is to ensure its award is reasoned to avoid it being set aside for lack of reasoning.

A hybrid theory or applying the conflict of laws rules of the lex fori for the applicable law to insolvency provides more legal certainty. It takes into account any relevant mandatory rule or rule of public policy of the lex fori.  However, it does not provide certainty regarding which the rules will be applied.

3. THE HURDLE

Many national insolvency laws or court procedural laws have clauses that suspend any ongoing legal proceedings of the insolvent entity once insolvency commences[22]. These clauses usually prevent further proceedings from being initiated[23]. Several jurisdictions have concluded that the suspension and prevention extends to arbitration proceedings.[24]

According to the rule of suspension, which reflects the principle of jurisdictional attraction, the commencement of bankruptcy proceedings as a form of court proceeding should abate or interrupt all other actions in order to preserve the bankruptcy estate, and all creditors of the debtor, except for the privileged creditors, are put in the same position.

This rule exists as protection to the creditors since in most developed systems of insolvency, law presumes that the creditors of an insolvent debtor must be treated equally and transparently; regardless of any individual agreements they may have concluded with the debtor, and therefore contemplate collective proceedings to bind all. Insolvency proceedings have emerged to be the only way to protect the interests of all the creditors equally. If the arbitration agreement supersedes such a proceeding then most creditors, would be suffering huge losses if they were not part of an arbitration agreement and their cause of action will go in vain. However, to tackle such issues, EC and EU Insolvency Regulation have an underlying principle known as the principle of universality wherein there is a system in which all aspects of the debtor’s insolvency are encompassed by a single central proceeding under one insolvency law.

In contrast, the United States Supreme Court while discussing the refusal to enforce international arbitration agreements held that “would surely damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international agreements…To refuse to enforce an arbitration clause in the context of an international transaction ‘would reflect a parochial concept that all disputes must be resolved under our laws and in our courts…We cannot have trade and commerce in world markets … exclusively on our terms, governed by our laws, and resolved in our courts.[25] In another case, a US Court held that Congress did not intend for the Bankruptcy Code to modify the Federal Arbitration Act and that no irreconcilable conflict existed between the purposes of the Bankruptcy Code and the arbitration of non-core matters, where the bankruptcy courts do not have exclusive jurisdiction over such matters[26]. Another US Court[27] held that the key in determining whether arbitration may continue or whether arbitral judgement can be affirmed or enforced, is whether arbitration “would contravene a strong public policy of the forum”.

4. INSOLVENT ENTITIES MAY ARBITRATE

In summary, some countries used to, or still, have rules that interfere with the arbitration agreement and arbitration proceedings in case of insolvency, making them null and void or inoperable. Party capacity cannot be forgotten in an insolvency setting. The party’s original representative may need to be replaced by the insolvency administrator causing delays in the proceedings to ensure procedural fairness. An award against an insolvent entity is vulnerable to unenforceability on several grounds and is highly dependent on the approach to insolvency and arbitration in the jurisdiction of enforcement, however, a tribunal can minimalise such risks by careful consideration of due process.

Therefore, arguments for not providing a stay of proceedings may find little force in the current scenario. It may seem prudent to a tribunal to stay proceedings so that the parties and the tribunal may carefully consider the appropriate steps and consequences of the insolvency. The loss of time in the arbitration proceedings is to be measured against the integrity of the arbitration and the award.  Tribunals may look favourably upon a request from the insolvent entity to provide at least an informal stay or delay. In any event the tribunals should consider a stay or delay ex officio, as it may take some time for the insolvency administrator to be duly appointed and get up to speed with the arbitration.

On becoming aware of insolvency, the tribunals may take the necessary common sense steps, such as accepting the administrator into the proceedings and staying proceedings to consider the insolvency implications. In most jurisdictions their awards may be set aside or become non-enforceable if they deal with core insolvency issues. The tribunals would likely look at the insolvency law of the fori concursus, specifically its public policy and mandatory rules, particularly if that is the expected enforcement jurisdiction. 

While the arbitrators should not consider insolvency as automatically ending an arbitration because insolvency procedures can be misused as an inappropriate substitute for debt enforcement procedures by parties[28], arbitrators should note the measures in the insolvency laws that try to prevent such misuse[29].  In English common law, a debt must be “bona fide” to attract the winding up jurisdiction of the English courts.  A disputed debt, which still might have appeals processes to exhaust, would entitle the winding up of a company to be delayed[30]. Likewise in Singapore, if a debtor has a valid counterclaim equivalent to or exceeding the claimed debt, then the insolvency process cannot be applied to the party.[31]

5. INSOLVENCY, SECURITY FOR COSTS ORDERS AND THE UNCITRAL MODEL LAW TEST FOR SECURITY FOR COSTS

It is sometimes argued that when a party in arbitration goes insolvent or is insolvent, that constitutes a ground for security for costs. Security for costs requests are interim measure applications governed mainly by the lex arbitri which is commonly the law of the seat of arbitration.  This is not as straightforward as it might seem.  The UNCITRAL Model Law Article 17-A mentions three basic and common requirements for interim measures, which is widely understood to include security for costs[32]:

  1. the danger of substantial harm;
  2. this harm outweighing the potential harm caused by the interim measure; and
  3. a chance to win the on the merits of the case.

An insolvency event may meet the first requirement as it increases the chance that the other party would not be able to enforce a costs award in practice[33]. It does not influence the third requirement, but it may have an indirect influence on the second requirement. The weight of case law points to insolvency not being a valid or sufficient reason to order security for costs.  The cases indicate that insolvency alone does not necessarily mean a lack of funds – an insolvent company may have enough money to pay for a potential costs award[34]. It follows that insolvency itself is not enough to justify a security for costs award[35]. The Chartered Institute of Arbitrators’ guidelines for requesting security for costs confirm this.  It states that if the insolvent party had a questionable financial situation at the inception of the contract, security for costs are further barred because the risk of insolvency was accepted[36].

Further, if non-compliance occurs after ordering security for costs some legislation allows for the claims may be dismissed, for example under Section 41(6) of the English Arbitration Act[37]. This would complicate the consideration for providing for security for costs in case of insolvency; the insolvency now interacts with an access to justice issue.

Therefore insolvency does not automatically justify a security for costs award, even though a quick analysis might have suggested otherwise. Instead it complicates the decision on security for costs and related issues which the tribunal makes.

6. INSOLVENCY AS A TOOL FOR ABUSE

In bankruptcy or insolvency law, irrespective of the jurisdiction, there may be the potential for abuse of the codified provision by actors seeking advantages in litigation. One of the most common forms of abuse is forum shopping. When a debtor or creditor has the ability to choose among forums that may have jurisdiction, naturally the party will want to go to the forum that will offer the best options as a matter of both procedural and substantive law. Of course, in an efficient legal system this would not necessarily be possible because there should be only one jurisdiction to open proceedings and deal with the matter at hand. In the European Union, however, with a common internal market, freedom of establishment, and the free movement of capital and goods, debtors and creditors deal with each other across national lines, national law is the substantive law regarding insolvency proceedings under the EU Insolvency Regulation, with judgments being given effect in the other member States. Insolvency, doubtlessly, is a great arm-twisting tool used to cough out money. It is often criticised as such, as it is not used with the degree of responsibility that is legislatively desired. Insolvency may also be abused by a party, by either voluntarily opting for insolvency, or fraudulently inducing a creditor to initiate insolvency. Under the new Insolvency & Bankruptcy Code of 2016 in India, promoters of Medium and Small Enterprise are eligible to re-acquire the insolvency estate of their corporate entity. It is not to be forgotten that the result of insolvency is either liquidation or re-organisation, all litigations being extinguished in both cases. Insolvency, therefore, is a tool that can be strategically abused to evade liability.

7. ENFORCEMENT OF AWARDS

We dive into a deeper, darker and uncertain abyss when it comes to enforcement of awards[38] against an insolvent debtor. Most international arbitration award holders would not even proceed to enforce awards once the debtor is subject to insolvency. Not only do the domestic courts refuse such enforcement proceedings, but the award-holders are discouraged from even making the effort to enforce these awards knowing that the estate of the debtor is in the hands of the creditors and the insolvency mechanism. But why should this be the case? It takes years of efforts and resources to conclude an arbitration – a result of parties’ consent – there is application of mind.

The two most probable hurdles to enforcement of an award would, in light of the  New York Convention, be

  1. Capacity, and
  2. Public Policy.

While delving into the two aspects should, in the authors’ view, remain a separate topic to be discussed while testing the legalities involved in the conflict between an international award its conflict with a domestic insolvency, it is safe to assume and conclude that no international arbitral awards are enforced against an insolvent entity as that would be conflicting with the public policy of the State where such enforcement is sought. But what is the fault of the creditor concerned, who believed in the now insolvent business entity to be able to engage in business. Such confidence has much to do with the comity of nations and the contracting party’s host State’s commitment of treaties and conventions.

How do we look at enforcement. Domestic laws may provide for a mechanism to punish bad faith cases, but those are not the concern of businesses. More than the evolution of jurisprudence, businesses are concerned about the colour of money. That’s the reason behind business. Either party may, in an unfortunate or unforeseen scenario, fall into the trappings of insolvency/bankruptcy. The other party may, either during or after or before such circumstances arise, have an arbitration award in their hands or may initiate arbitral proceedings.

8. THOUGHTFULNESS AT THE TIME OF CONTRACT NEGOTIATION

It may take time for laws in this regard to get harmonised, but what parties can do to circumvent such juxtapose or mitigate chances of hitting this apparent dead-end is to ensure that the aforementioned issues are well thought of and dealt with at the time of entering into contracts.

Take for example, the United Nations Convention on Contracts for the International Sale of Goods, 1980 (“CISG”), Preamble of which considers the development of international trade on the basis of equality and mutual benefit, and the adopting States being of the opinion that “adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade”. Article 8 of the CISG speaks of interpreting statements of the parties in terms of their intent and while considering the circumstances of the negotiations. A holistic reading of the CISG, including Article 19, would provide a great platform for recording negotiations pertaining to prospective /potential insolvency of the parties in the travaux préparatoires so as to be in a position to address these in accordance with State laws in case any party is hit by insolvency.

It would not be out of context to propose it as a model practice for the vendors to ensure that the purchasers conditionally pledge shares at the time of entering into cross-border transactions, or to create some form of security that would make the trade more responsible. More importantly, this would ensure that in the event of an insolvency, the vendor shall have a seat at the table in the reorganisation of the purchaser and shall also have a claim at par with other secured creditors. This would also be in respect and honour of the NY Convention which seemingly did not address insolvency and perhaps cannot unless it is amended or revamped.

CONCLUSION

The New York Convention, respect be paid to it in sync with the number of signatories it has, is pro-arbitration and it may not be out of place to assert that international commercial arbitration should trump domestic insolvency hurdles. But until such provisions are harmonised at an international level with domestic support, the parties must resort to pre-emptive and mitigating measures to safeguard their interests. The issues discussed hereinabove are what may hinder or even defeat an entire transaction and therefore, it becomes incumbent upon the parties to carefully consider issues of jurisdiction, insolvency and security to avoid getting into transactions that may lead to cascading losses should insolvency loom over a party.


*Candidate, White & Case International Arbitration LLM, 2019, University of Miami School of Law

**Assistant Professor, Jindal Global Law School

[1] The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958

[2] Dependence on factors mentioned under Article V(ii)

[3] ‘Insolvency in International Arbitration: where two fields meet’,  Fabian A van der Ven, LLM Thesis, University of St Gallen

[4] Sara Nadeau-Séguin, ‘When Bankruptcy and Arbitration Meet: A Look at Recent ICC Practice’ (2011) 5 Disp Resol Int’l 79 79 just 17 ICC awards on the subject in 1968-2002 and 16 between the years of 2002-2006.

[5] Domitille Baizeau, ‘Arbitration and insolvency: issues of applicable law’ in Christoph Müller and Antonio Rigozzi (eds), New Developments in International Commercial Arbitration (Schulthess 2009) 100

[6] UNCITRAL Model Law on International Commercial Arbitration

[7] Domitille Baizeau, ‘Arbitration and insolvency: issues of applicable law’ in Christoph Müller and Antonio Rigozzi (eds), New Developments in International Commercial Arbitration (Schulthess 2009) 100. France, for example considers at least parts of its insolvency law as public policy see (2009) No. 08-10.281 (French Supreme Court)

[8] Sara Nadeau-Séguin, ‘When Bankruptcy and Arbitration Meet: A Look at Recent ICC Practice’ (2011) 5 Disp Resol Int’l 79 at 86

[9] Also in the absence of specific agreement between the parties to this effect.

[10] Filip de Ly, ‘Arbitation and Insolvency – Selected Conflict of Law Problems’ in F. Ferrari and S. Kröll (eds), Conflict of Laws in International Arbitration (Sellier European Law Publishers 2011) 3

[11] Elektrim v. Vivendi Universal [2009] EWCA Civ. 677, [2010] IILR 39 (Court of Appeal London)

[12] Simon Vorburger, International Arbitration and Cross-border Insolvency: Comparative Perspectives (International Arbitration Law Library vol 31, Kluwer Law International 2014) 6 at 86-89

[13] Vivendi S.A et al. v. Deutsche Telekom AG et al. [2009] 4A_428/2008, [2010] 28 ASA Bull 104 et seq. (Swiss Federal Supreme Court) 2-3

[14] Simon Vorburger, International Arbitration and Cross-border Insolvency: Comparative Perspectives (International Arbitration Law Library Vol. 31, Kluwer Law International 2014) 88-89

[15] Swiss entity v.  Dutch entity [2001] HKZ Case No. 415, [2002] 20 ASA Bull 467 III; (2011) CAM Case No. 2412 A contribution by the ITA Board of Reporters, Kluwer Law International

[16] Marta Tsvengrosh, Arbitration and insolvency – conflict of laws issues: Conflict of laws in international arbitration: cross-border insolvency cases (LAP LAMBERT Academic Pub 2011) 7

[17] However, such conflicts in the opinion of the authors do not qualify the arbitration agreement as a nullity.

[18] Samantha J Lord, ‘When Two Polar Extremes Collide: An Exploration into the Effects of Insolvency on International Arbitration’ (2012) 15 Int’l Trade & Bus L Rev 316 at 323

[19] Simon Vorburger, International Arbitration and Cross-border Insolvency: Comparative Perspectives (International Arbitration Law Library, Vol. 31, Kluwer Law International 2014) 92-93

[20] Simon Vorburger, International Arbitration and Cross-border Insolvency: Comparative Perspectives (International Arbitration Law Library, Vol. 31, Kluwer Law International 2014) 93-94

[21] Simon Vorburger, International arbitration and cross-border insolvency: Comparative Perspectives (International Arbitration Law Library Vol. 31, Kluwer Law International 2014) 84

[22] Fernando Mantilla-Serrano, ‘International Arbitration and Insolvency Proceedings’ (1995) 11(1) Arbitration International 51, 57; Alexander J Be?lohlávek, ‘The impact of insolvency of a party on pending arbitration proceedings in Czech Republic, England and Switzerland and other countries’ in Marianne Roth and Michael Geistlinger (eds), Yearbook on international arbitration. Vol. 1 (DJØF Publishing 2010) 146 151; Ge Yang, ‘Insolvency Proceedings and Their Effect on International Commercial Arbitration’ (LLM Thesis, University of Ghent 2012) 30

[23] Simon Vorburger, International arbitration and cross-border insolvency: Comparative perspectives (International Arbitration Law Library, Vol. 31, Kluwer Law International 2014) 179

[24] Franco Ferrari and Stefan Kröll, Conflict of laws in international arbitration (Sellier 2011) 362; Ge Yang, ‘Insolvency Proceedings and Their Effect on International Commercial Arbitration’ (LLM Thesis, University of Ghent 2012) 32

[25] Scherk v. Alberto-Culver Company, 1974 SCC OnLine US SC 128 : 417 US 506, at 519 (1974)

[26] Hays and Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149 (3d Cir. 1989)

[27] Fotochrome, Inc. v. Copal Co., Ltd., 517 F.2d 512 (2d Cir. 1975)

[28] Mobilox Innovations Private Limited v. Kirusa Software Private Limited, (2018) 1 SCC 353 at para 13 referring to the Legislative Guide on Insolvency Law of the United Nations Commission on International Trade Law

[29] The draft of Section 8 of the Indian Insolvency and Bankruptcy Code, 2016 included “bona fide dispute”.  “Bona fide” is absent in the enacted Code

[30] See Re A Company – Victory House General Partner Ltd. v. RGB P&C Ltd., 2018 EWHC 1143 (Ch)

[31] Lim PohYeoh (alias Lim Aster) and TS Ong Construction Pte Lt., 2016 SGHC 179 at paras 43 and 45

[32] Weixia Gu, ‘Security for Costs in International Commercial Arbitration’ (2005) 22(3) Journal of International Arbitration 167 167

[33] James Hargrove and Vanessa Liborio, ‘Arbitration and Insolvency: English and Swiss Perspectives’ (2009) 75 Arbitration 47 50–51

[34] Smith v. UIC Insurance Co Ltd (2001) BCC 11 (Comm (QBD)); James Hargrove and Vanessa Liborio, ‘Arbitration and Insolvency: English and Swiss Perspectives’ (2009) 75 Arbitration 47, 51 referring to

[35] [2007] ICC Case No. 14993, [2014] 24 ICC Bulletin 24; Hargrove and Vanessa Liborio, ‘Arbitration and Insolvency: English and Swiss Perspectives’ (2009) 75 Arbitration 47, 51

[36] [1994] ICC Case No. 7047, [1995] ASA Bull 301 et seq. n. 18 as referred to by; Chartered Institute of Arbitrators, ‘International Arbitration Practice Guideline: Applications for Security for Costs’ (London 2015) Commentary to Article 3 (b) <http://www.ciarb.org/docs/default-source/ciarbdocuments/guidance-and-ethics/practice-guidelines-protocols-and-rules/international-arbitration-guidelines-2015/2015securityforcosts.pdf?sfvrsn=28>

[37] Hargrove and Vanessa Liborio, ‘Arbitration and Insolvency: English and Swiss Perspectives’ (2009) 75 Arbitration 47, 51

[38] Given the arbitration proceedings see the light of the day in terms of an award being rendered

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