When two worlds collide

To what extent is international commercial arbitration seated in England or Wales compatible with insolvency proceedings?

1.    Introduction

The global economy has been greatly affected by the coronavirus pandemic. Insolvency rates are rising and may reach levels beyond even those of the 2008 financial crisis.[1] Whilst governments are still providing financial support around the world, the eventual withdrawal may see hitherto propped-up companies face severe financial difficulties.[2]

With business interruption being felt across the globe,[3] disputes are also on the rise. A recent survey on litigation trends found that 45% of respondent companies felt increasingly exposed to disputes arising out of business interruption,[4] with the same figure anticipating an increase in pandemic-related disputes in 2021.[5] Given the preference for arbitration when resolving disputes in an international commercial context,[6] many such disputes may end up being determined by arbitration.[7]

The aforementioned will likely result in a greater overlap between arbitration and insolvency, i.e., situations where arbitration proceedings, either ongoing or contemplated, involve at least one party that is, or may shortly be, subject to insolvency proceedings. As arbitration and insolvency proceedings have diametrically opposed policy aims, even being described as “a conflict of near polar extremes,”[8] the intersection of the two domains presents significant issues in practice. This is further complicated by the temporary COVID-19-related insolvency measures.

 Following an outline of the nature of insolvency law and international commercial arbitration, this dissertation will set out the main issues of which arbitration practitioners will need to be aware when advising a client either contemplating or involved in arbitration tainted by a potential or ongoing insolvency. The discussion will be limited to the manner in which arbitral proceedings seated in England or Wales may be affected by a party’s insolvency either in the UK or abroad.

2.    Domains with competing objectives

2.1.        International arbitration

Arbitration is a private, consensual and decentralised mechanism whereby parties agree to resolve their disputes largely without court involvement.[9]

International arbitration, i.e., arbitration involving parties from at least two separate jurisdictions, has gained significant traction over the last half of the 20th century - in large part due to the introduction of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1958 (the New York Convention). Subject to certain restrictions,[10] the New York Convention allows for the automatic enforcement of arbitral awards among its 168 signatories. As no equivalent measure exists for the cross-border enforcement of court decisions, arbitration has become an increasingly popular method for resolving commercial cross-border disputes. In a 2018 survey, 97% of participants stated that international arbitration was their preferred method for resolving cross-border disputes.[11]

Over the years, England has garnered a reputation for being an arbitration-friendly jurisdiction.[12] English courts will generally seek to uphold arbitration agreements between parties, unless exceptional circumstances apply.[13] One such ‘exceptional circumstance’ may be insolvency. The Arbitration Act 1996 (AA 1996), which regulates arbitration seated in the UK, does not stipulate the manner in which insolvency proceedings impact arbitration.[14] This is instead governed by case law and insolvency statute.

2.2.        Insolvency law

As opposed to arbitration, insolvency proceedings are generally public, centralised and transparent. Insolvency rules seek to balance the interests of similar groups of creditors[15] and are generally viewed as part of English public policy.[16]

 The main insolvency legislation in the UK is the Insolvency Act 1986 (IA 1986), the Insolvency (England and Wales) Rules 2016 (IR 2016) and the Companies Act 2006 (CA 2006). Both the IA 1986 and CA 2006 were recently amended in light of the coronavirus pandemic, as discussed under 4.2.5 below.

3.3. The two domains’ intersection: arbitrability and capacity

Arbitration agreements must meet certain prerequisites in order to be valid under national statute (e.g., the AA 1996) and/or to be enforceable under the New York Convention. Insolvency proceedings can impact whether these prerequisites are met.

3.3.1.   Arbitrability

The subject matter of any dispute submitted to arbitration needs to be arbitrable, i.e., capable of being resolved by arbitration. Arbitrability is determined by national law.[17] In the UK, it has not been defined within the AA 1996 but has been interpreted under common law as only excluding disputes affecting the “public at large.”[18] Criminal cases, for example, are usually held to be non-arbitrable.

Generally, disputes involving an insolvent party are arbitrable unless a public interest element applies, or third-party rights are affected.[19] These concepts are difficult to define in practice. For example, any successful monetary claim against an insolvent respondent will diminish its assets available to be distributed among creditors, thus affecting third party rights. The ‘public interest element’ is even vaguer, but as with third party rights, is generally a sliding scale. One way to determine whether matters are on the ‘right side’ of the scale is to assess whether the dispute relates to “core” insolvency matters, such as the distribution of a pro rata payment, or is simply a claim that happens to involve an insolvent party. “Core” proceedings are more likely to directly affect third-party rights, or the public at large, and thus be non-arbitrable.[20]

Further, disputes arising out of insolvency trustees’ powers under the IA 1986 or IR  2016 are generally not subject to arbitration.[21] A good rule of thumb is that where an insolvency trustee needs to commence a dispute in their own name (as opposed to on behalf of the company), it will not be arbitrable, despite the dispute technically being covered by a contract containing a valid arbitration agreement.

A dispute may also be non-arbitrable as a result of the related transaction being set aside.[22] In a general commercial context, this is most likely to occur where a transaction at undervalue was entered into less than two years prior to the insolvency being commenced, and where the company was either insolvent when that transaction occurred or ended up becoming insolvent as a result.[23] It may also occur where a preference was given to an unconnected party in the six months leading up to insolvency (or two years in the case of a connected party), and where the company was either insolvent when that preference occurred or ended up becoming insolvent as a result.[24] As discussed under 4.5 below, the potential for transactions to be set aside are an important consideration when settling a dispute as or with an insolvent party. 

3.3.2.   Capacity

Parties’ capacity is important when initially entering into the arbitration agreement and also when subsequently becoming party to arbitration proceedings.

A party’s initial capacity to conclude an arbitration agreement is generally determined by the national law applicable to it at its place of incorporation. Insolvency law in certain jurisdictions, such as Latvia, holds that where a party goes insolvent within that jurisdiction, its capacity to enter into agreements is retrospectively invalidated.[25] This will apply no matter where the arbitration is actually seated. Parties’ national law may thus have a ‘back-stage’ impact on the manner in which insolvency affects arbitration, rather than this being left to the ‘centre-stage’ applicable procedural law. This indeed occurred in a now infamous Swiss Vivendi case.[26] However, this decision has been subject to criticism,[27] and generally, the norm will be that parties will retain capacity to arbitrate abroad even where their capacity to arbitrate at home has been removed by domestic insolvency law.[28] 

In relation to becoming a party to proceedings, it is recognised in England and Wales that where a company goes insolvent, the insolvency trustee may become party to proceedings in the name of the company, despite not being an original party to the arbitration agreement.[29]

4.     Advising a client on contemplated or ongoing arbitration proceedings seated in England or Wales which are or may be affected by insolvency

4.1. The starting point

 Subject to the aforementioned exceptions, UK insolvency law does not automatically invalidate arbitration agreements previously concluded by an insolvent party.[30] However, certain types of insolvency proceedings do impose automatic stays on new or ongoing arbitral proceedings against an insolvent party, which will be binding on arbitral tribunals seated in England or Wales.[31]

 Parties may apply for such automatic stays be lifted. When deciding whether to lift a stay, courts[32] will weigh up several factors in order to determine whether insolvency or arbitration takes priority. In effect, two hallowed concepts are vying to exist in a space where there is only room for one. As such, there is never a straightforward answer regarding the priority of one over the other. Rather, courts conduct an in-depth assessment of the interests of various parties, paying close attention to the arbitration agreement in question and the concrete insolvency proceedings involved.[33]

 Given that insolvency’s impact on arbitration is anything but straightforward, it is crucial that, at the outset, arbitration practitioners have a clear theoretical understanding of UK insolvency law and its potential impact on arbitration.

 4.2. UK insolvency proceedings

 As UK insolvency law is directly applicable to arbitration proceedings seated in England or Wales, arbitral tribunals must adhere to what statute and case law dictates.[34] There are broadly four types of insolvency proceedings in the UK, each with very different potential consequences on contemplated or ongoing arbitration proceedings.

4.2.1.   Liquidation

Compulsory liquidation commences when an unpaid creditor of an insolvent company presents a winding up petition to the court and proves the company’s insolvency.[35] As liquidation generally occurs where the company has no chance of survival, its main aim is to maximise the distribution of assets among creditors.[36]

Once a company enters into liquidation, a liquidator is appointed with the capacity to be party to “legal proceedings” in the company’s name[37] or otherwise “do all acts […] in the name and on behalf of the company,”[38] to the exclusion of former controllers.[39] 

Liquidation also results in an automatic stay that will apply to all ongoing or contemplated legal proceedings,[40] including arbitration.[41] Once a stay applies, proceedings against an insolvent company may only be commenced or continued with the court’s permission.[42]

During the automatic stay, time will stop running for all statutory limitation purposes.[43]  This may, however, be of limited use in practice if a party wishes to bring a claim in arbitration. This is because once liquidation is finalised, the company will likely be dissolved, rendering the arbitration agreement invalid and a claim impossible.[44] Nevertheless, being within the limitation period may have other advantages. For example, it allows a potential claimant to participate in distribution to creditors, as discussed under 4.7.2 below.[45]

Automatic stays may be lifted by the court, allowing ongoing or contemplated arbitral proceedings to continue.[46] Relevant considerations when applying for a stay to be lifted are set out under 4.6 below.

Liquidators may disclaim certain contracts containing valid arbitration agreements,[47] even where these are not of the type that may be set aside because of an issue with the underlying transaction (as discussed under 3.3.1 above).  For example, liquidators may disclaim “onerous property,”[48] which includes “unprofitable contracts”[49] that are difficult to sell or otherwise impose continuing obligations on the insolvent company.[50]

Only executory contracts, i.e., those still in progress, may be disclaimed; those that have been fully executed or have caused property rights to vest in a party may not.[51]

Where agreements are disclaimed, the doctrine of separability applies,[52]  meaning that the arbitration agreement’s validity is distinct from that of the underlying agreement.[53] Disclaiming a contract will therefore not automatically terminate the arbitration agreement contained therein;[54] this must be separately disclaimed.[55]

Understanding the aforementioned is relevant for arbitration practitioners as where the arbitration agreement has not or has improperly been disclaimed, and issues come up that fall within the remit of the  arbitration  agreement,  the insolvency  trustee or other party  to  the  arbitration  agreement  may request that the issue be resolved by arbitration.[56] Conversely, where an arbitration agreement is properly disclaimed, the counterparty may no longer commence proceedings but may “prove”, i.e., claim, in liquidation for any losses consequently suffered,[57] as discussed under 4.7.2 below.

4.2.2.   Administration

Administration’s main aim is to allow a struggling company to recover or, failing that, maximising its assets for division among creditors.[58] Administration is usually commenced by a court order or at a company’s request.[59]

 During administration, an automatic stay will apply to legal proceedings, both ongoing or contemplated,[60] including arbitration.[61] When a company enters into administration, all arbitration proceedings against it will require permission from its administrator or the court in order to commence or continue.[62]  This differs from liquidation, where only the court may consent.

 Further, unlike liquidators, who require the permission of the court to commence arbitral proceedings, administrators may bring or agree to arbitration proceedings on their own.[63] They may also enter into new arbitration agreements, on behalf of the company, in order to resolve disputed matters, or agree to new contracts which contain arbitration clauses.[64]

4.2.3.   Voluntary insolvency proceedings

Voluntary liquidation may refer to members’ voluntary liquidation (MVL), which involves directors issuing a declaration of solvency (i.e., there are not necessarily any financial problems)[65] and creditors’ voluntary liquidation (CVL), where no declaration of solvency has been made.[66] Voluntary liquidation may also refer to a company voluntary arrangement (CVA), where a company makes arrangements specifically to avoid liquidation.[67]

Commencing proceedings against a company in any type of voluntary insolvency arrangement does not require the court’s leave, and no moratorium applies.[68]  Nevertheless, in the case of a CVL or MVL, a creditor or liquidator may request of the court that proceedings are stayed.[69]

During a CVA, a company enters into an agreement with its unsecured creditors. Such agreement may impose terms on creditors, including the prohibition of arbitration proceedings against the company.[70] A CVA requires the consent of 75% of unsecured creditors.[71] If obtained, it will bind creditors who were outvoted and even those who did not vote at all.[72] Clients considering a claim in arbitration against a company considering a CVA must therefore be aware of the importance of voting and potentially speaking to other unsecured creditors beforehand.

4.2.4.   Administrative receivership

Administrative receivership is only available for secured creditors who possess floating charges created on or before 15 September 2003. Despite being a mandatory procedure, no stay is imposed and there is no prohibition against commencing arbitral proceedings against the company.[73] Given that charges created prior to 2003 are becoming increasingly rare, it is unlikely to present a big issue for arbitration practitioners in practice.[74]

4.2.5.    New COVID-19 insolvency measures

The UK Corporate Insolvency and Governance Act 2020 (CIGA  2020) introduced several temporary and permanent[75] “debtor friendly” measures to the hitherto “creditor friendly” English insolvency law.[76]

 The measures arbitration practitioners should be aware of include, for example, the new standalone moratorium added to the IA 1986.[77] The moratorium applies for an initial 20 business days but may be extended up to a total of 12 months.[78] During this time, no legal proceedings, including arbitration, may be issued against the company,[79] unless the court consents. The court may not consent where a creditor is requesting that a debt be paid for which its counterparty has a payment holiday.[80] The standalone moratorium rules are temporary and are currently set to expire on 30 September 2021.[81]

The CIGA 2020 also introduced provisions preventing suppliers from exercising termination rights under several common types of contracts where the counterparty enters into an insolvency process.[82] It also introduced restrictions on presenting winding-up petitions based on non-payment of debts for COVID-19-related reasons.[83] These measures currently apply until 31 June 2021 but may be extended up to October 2022.[84]

 The CIGA 2020 grants powers to the UK’s Secretary of State to extend, amend or terminate its provisions.[85] It is vital, therefore, that practitioners stay abreast of its current status so as to be able to advise parties considering or involved in arbitration proceedings on its impact.

4.3. Foreign insolvency proceedings

 Whilst automatic stays under UK insolvency law directly bind tribunals seated in England or Wales,[86] foreign insolvency proceedings do not.[87] Arbitrators may thus continue proceedings in English or Wales despite foreign courts’ requests that these be stayed. Conversely, where foreign insolvency proceedings are not (yet) recognised nationally, tribunals may still choose to follow them.[88] This may occur where a tribunal believes that English courts will shortly recognise such disputes in any case,[89] where it has concerns that international principles of public policy may be breached if it does not follow the foreign law,[90] or where it is concerned about enforcement issues (see 4.9 below). However, the general consensus among academics and tribunals is that foreign insolvency proceedings within a certain jurisdiction are not binding on tribunals seated outside that jurisdiction. [91]

4.3.1.   UNCITRAL Model Law on Cross-Border Insolvency

An exception to the aforementioned rule may occur under the UNCITRAL Model Law on Cross-Border Insolvency of 1997 (the Model Insolvency Law), to which the UK is party. Under the Model Insolvency Law,[92] foreign insolvency proceedings may be recognised in the UK - even where the jurisdiction in which insolvency proceedings take place is not party to the Model Insolvency Law.[93]

An application will need to be made for recognition to apply,[94]  and whilst courts have discretion, it will usually be granted.[95] The impact of recognition differs for ‘main’ and ‘non-main’ proceedings. Foreign insolvency proceedings are deemed ‘main proceedings’ only where they occur in the insolvent company’s home-jurisdiction,  i.e., the location where it has its so-called ‘centre of  main  interests.’[96]

Only if this is the case will recognition result in a stay that is binding on tribunals seated in England.[97] The automatic stay in question is imposed under Article 20 of the Model Insolvency Law, which is equivalent to the stay under  section  130(2),  IA  1986 (which applies to UK compulsory liquidation). Similarly, proceedings may not be commenced or continued without the court’s permission.[98] The same considerations that apply when attempting to lift domestic moratoria, set out under 4.6 below, will also apply when lifting a stay imposed by foreign insolvency proceedings via the Model Insolvency Law.[99]

Whether foreign proceedings are “main” or “non-main,” the foreign insolvency trustee may apply to English courts  for arbitration  proceedings not otherwise caught by a moratorium to be stayed, or to challenge transactions  entered  into  by  the  insolvent  company prior to insolvency.[100]

4.3.2.   EU Recast Insolvency Regulation

 Many textbooks, practice notes and cases will contain references to the Regulation (EU) 2015/848 on insolvency proceedings (the EU Insolvency Regulation). The EU Insolvency Regulation essentially provides that insolvency proceedings commenced in one EU Member State must be recognised in others. Due to Brexit, it no longer applies within the UK since January 2021. Nevertheless, the principles discussed within the aforementioned practice notes and cases may still be of some relevance to practitioners where they, for example, relate to the UK’s relationship with EU jurisdictions which are also party to the Model Insolvency Law, e.g., Poland and Romania.

4.4. Understanding the extent and impact of any financial difficulties

Having outlined the theory of which arbitration practitioners need to be aware, this dissertation will now turn to practical elements which they must consider.

Among other things, it is important that arbitration practitioners take steps in order to understand the extent of any financial difficulties that parties are facing. Only in this way can they advise on what steps, if any, a client should take.

As financial difficulties may affect the (potential) respondent or the claimant, both shall be addressed in turn.

4.4.1.   Where the respondent is distressed or insolvent

There are a number of sources that practitioners can consult in order to determine the nature and extent of a (potential) respondent’s financial issues. For UK-incorporated companies, one should review filings and notices at the Business and Property Courts or in the Gazette and obtain credit references from an agency such Experian.[101] Further, one should review the most recent accounts filed at Companies House. It is wise to look at the accounts for several years and to compare them in order to determine whether there is a temporary issue or an actual downward trend. The nature of the business should also be taken into consideration. For example, new companies may initially make losses due to high start-up costs, despite being a sound business overall. Further, many companies may be struggling during the coronavirus pandemic but have strong long-term prospects. Conversely, businesses which seem to be managing despite COVID-19 could encounter serious financial difficulties once government support is withdrawn. A lot will depend on considerations such as, among others, the manner in which the company is financed (debt or equity, with the former being riskier in the current climate), the industry it is within (e.g., airlines and tourism have been especially affected by the pandemic), and the strength of a company’s brand (i.e., whether it could easily be sold, for example). Practitioners should also be aware that the CIGA 2020 has allowed for extensions in relation to filing company accounts at Companies House.[102] Any late filing is therefore not immediate cause for concern.

Where a company is (additionally) incorporated abroad, its foreign records should be checked. It may be worth consulting with local counsel, and if the potential claim is for a large figure, even hiring an agent to undertake this research. At this stage, it is also wise to think about locations where any potential award could be enforced. Relevant considerations include where the party is registered and/or has assets, whether the relevant jurisdiction(s) is/are party to the New York Convention, and what the courts’ stance in the relevant jurisdiction(s) is in relation to enforcing arbitral awards against companies insolvent within its territory. Russian courts, for example, have (on occasion) refused to enforce arbitral awards against parties subject to insolvency proceedings in Russia.[103] Where companies are headquartered in jurisdictions with similar attitudes, commencing a claim may not be worth the risk.

If the conclusion of any investigation is that insolvency is inevitable, it is important to consider what type of insolvency proceedings may occur. If insolvency proceedings will likely be compulsory, it will be harder to proceed with a claim in arbitration, as an automatic stay will apply. When assessing what type of insolvency proceedings may occur, practitioners should determine whether creditors have issued threats or petitions and generally consult the industry press and contacts.[104]

If the practitioner determines that proceedings will likely be compulsory, it should attempt to gauge whether liquidation or administration is more likely. This may be done by, among others, checking the industry press, looking at whether the company has made any statements regarding its future plans, or analysing the company’s public records. If there are indications that, for example, the underlying business concept is sound, but the company has been mismanaged, administration may be more likely.

Determining the type of potential insolvency proceeding is important as it may help an arbitration practitioner decide if and when to commence arbitration proceedings. If a company enters into administration, for example, the limitation periods that govern a claim will continue to run. As one cannot be sure that an attempt to lift the moratorium will be successful, it may be advisable to commence a claim as soon as possible. In other cases, waiting for administration to be completed is preferable. This may be the case where there is a long time left to run on the limitations period(s) and, following administration, the company may be in a better position to engage in arbitration proceedings and pay any award issued against it. This will of course only be applicable where administration has a reasonably strong prospect of success.

In the case of a potential liquidation, there are also good reasons to commence a claim as soon as possible. For example, where a claimant has a proprietary claim against the respondent, it should assert this prior to potential insolvency and distribution among creditors. Further, commencing a claim may allow a claimant to obtain interim measures or security for costs,[105] allowing it to at least receive some monetary compensation from the respondent. This may be more difficult to obtain once the respondent is insolvent. Any interim measure should be enforced prior to insolvency if possible. Whilst interim measures remain valid upon insolvency, the insolvency trustee can apply to the tribunal or court to discharge or vary it, given that insolvency may amount to a material  change  of  circumstance.[106] Additionally, enforcing interim measures counts as “legal proceedings” and is therefore subject to an automatic stay following insolvency, which may not necessarily be lifted.[107]

Lastly, in relation to both administration and liquidation, there is another good reason to commence a claim as soon as possible: the further advanced a claim is, the more likely the court is to lift the stay to allow arbitration to continue.[108]

 Despite the benefits of a timely claim against a distressed party, practitioners should be very careful when advising clients in this regard. Arbitration may result in expenses that cannot be recuperated, no matter how strong the client’s claim is, as further discussed under 4.5 below.

4.4.2.   Where the claimant is distressed or insolvent

Where the (potential) claimant is distressed, matters are a lot simpler. It will likely be in a position to provide details on its financial status to a practitioner, and there will be fewer considerations regarding the impact of insolvency proceedings on arbitration.[109]

When advising a client on whether to bring a claim, practitioners must assess the associated costs, chances of success and potential size of any award.  As the costs involved in bringing the claim will reduce the money available to creditors if not recuperated, careful analysis is required.

For practitioners, it is also important to consider whether the client is able to cover the costs of bringing proceedings both in the short and long-term. These include counsel fees, tribunal fees and potentially institutional fees. A potential client should be advised that if the respondent has doubts about the claimant’s continued solvency, it may request security for costs from the tribunal. Therefore, there may be initial costs involved for the claimant beyond its own costs. Practitioners should also be aware that they may not immediately stop acting for a claimant that does not pay its lawyers’ fees,[110] and should therefore carefully consider whether to take it on as a client. If possible, it may be worth seeking a letter of credit or a guarantee from a parent company.[111]  

Where the claimant is not yet insolvent and the practitioner determines that the claim has a reasonable prospect of success, the claimant may be advised to consider third party funding[112] or take out after the event (ATE) insurance. ATE insurance may potentially also remove any obligation to pay security for costs where the respondent so requests.[113] If making referrals for third-party funding, the usual limitations under the SRA’s Code of Conduct apply in respect of making the client aware of any fee sharing arrangement and making sure it is recorded in writing.[114] When advising on ATE insurance, solicitors should be aware that this may be a regulated activity because of the insurance element. Unless the firm is authorised by the FCA, which is unlikely, a section 327 FSMA exemption will be required.[115]

4.5. Advising clients on whether to proceed with a claim

An evident point worth repeating is that arbitration should be a last resort. Whilst it is, of course, the bread and butter of the arbitration practitioner, there is an overarching duty to act in the best interest of the client,[116] and this may mean advising against arbitration.

This is especially so in the context of distressed or insolvent companies. Even where there is a strong claim, it is futile to commence arbitral proceedings if the respondent does not ultimately have the funds to pay an award. There is also the risk that a solvent claimant must pay the insolvent respondent’s costs for the claim to continue. If the respondent lacks fund, these will not be recuperated even if the claimant wins.[117]

Where relevant, clients must be advised that a claim against a distressed respondent may be stayed once the respondent enters into compulsory insolvency, whilst any counterclaim may not be.[118] It is therefore very important to assess whether there are any potential counterclaims and, if so, what their value may be.

It is also vital to assess whether an assignee of the insolvent counterparty’s assets following liquidation or unsuccessful administration may be bound by an arbitration agreement concluded by that original party. In general, an assignee will not be bound, as confirmed by the Court of Appeal.[119] However, in specific circumstances, it may be. The High Court, for example, has held that a new claimant could be substituted for the original claimant who had merged with another company and no longer legally existed. The new claimant was held to have assumed the dissolved company’s obligations, including the arbitration agreement that related to those obligations.[120] This indicates that an insolvent party’s rights (as opposed to its obligations) and related arbitration agreement may under certain circumstances be assigned.

Furthermore, avoiding arbitration is to be recommended if the commercial relationship is important to the client. In certain cases, non-binding mediation or expert determination might be more suitable. Where possible, an even more amicable approach would be for the client to allow the insolvent counterparty to pay its dues over a longer period, effectively granting it cash flow assistance.[121] The solvent party must nevertheless protect its contractual rights. This could be accomplished by, for example, strengthening its termination rights so that it may easily terminate the agreement where, e.g., goods or payments are outstanding.[122] 

Where, prior to insolvency, alternative dispute resolution is successful, a settlement may be entered into with the directors of the company. However, any settlement entered into shortly before insolvency may potentially be disclaimed by the insolvency trustee.[123] Transactions for preference may be especially vulnerable. It is important for any settlement entered into in lieu of arbitral proceedings to be properly recorded. This includes documenting the relevant considerations made when arriving at the settlement amount. An insolvent party may, for example, pay a significant amount to a counterparty in settlement of a dispute. If by doing so it is avoiding the costs of arbitral proceedings and potentially an award, then this is less likely to constitute a preference under the IA 1986.[124]

Further, a settlement with the liquidator or administrator may also be reached after insolvency has officially been entered into.[125] The administrator may do so without seeking confirmation from the court. In practice, however, it is advisable to seek court approval for significant settlements so as to avoid these being challenged by companies’ creditors.

When considering whether to settle, it is important to consider the arbitration agreement in light of its governing law and, where proceedings are institutional, the relevant institution’s rules.[126] Where a ‘summary’ or ‘default’ judgment is available, a claimant may easily resolve proceedings if the insolvent counterparty does not dispute the claim. If such a mechanism is not available, however, the solvent party may find itself expending unnecessary costs establishing the undisputed merits and quantum of a claim. In such a case, parties should especially consider settling, and practitioners should advise them accordingly. Whilst arbitration proceedings seated in England or Wales may be governed by any arbitral rules, the new London Court of International Arbitration (LCIA) rules do, for example, contain an option for early determination which is similar to default judgment and is supported by the procedural rules in England and Wales.[127]

Where a potential claimant is financially distressed and has a monetary claim (as opposed to, e.g., a claim for a specific action), it is especially worth attempting to settle the matter with the respondent.  This is because such a claimant will want to receive funds quickly rather than potentially after number of years and with significant costs attached – if it even wins at all.

 4.6. When may the stay be lifted?

If a company enters into compulsory insolvency or the Model Insolvency Law applies,[128] there will be a stay on arbitral proceedings. If, despite the aforementioned considerations, a claimant wants to commence or continue arbitral proceedings, it needs to apply to the court. An application will initially also need to be made to the administrator in the case of administration. However, as an administrator is obliged to act in the company’s creditors’ best interests, it is unlikely to agree to arbitral proceedings against the company and an application to the court will still be required.[129]

Courts have “a broad and unfettered discretion” when deciding whether to lift a stay.[130] Nonetheless, some general principles apply. Firstly, claims for monetary relief (as opposed to, for example, a proprietary interest) are less likely to result in a stay being lifted.[131]  Secondly, a stay is more likely to be lifted where proceedings are further advanced.[132] Lastly, in the case of administration only, the nearer to the end of a limitation period the claim occurs, the more likely the court is to allow it.[133] Conversely, the court is less inclined to  grant  permission  if the  claim  could easily be disposed of during insolvency proceedings.[134]

Detailed considerations on when a stay might be lifted were set out in Re TPS Investments (UK) Ltd,[135] which adapted the decision in Re Atlantic Computer Systems plc.[136] Whilst that particular case concerned a proprietary interest during administration, the principles are of broad relevance:

1.    The onus rests on the party seeking to lift the stay.

2.    Leave for a claim relating to proprietary rights should normally be granted.

3.    Otherwise, the court should carry out a balancing exercise between the claimant’s and creditors’ legitimate interests. Considerations include:

                    i.         The loss suffered by the claimant if the stay is maintained.

          ii.         The loss suffered by (other) creditors if the stay is lifted.

         iii.         The financial position of the company.

         iv.         The administration’s proposed steps and end result.

          v.         The length of administration so far and in future.

         vi.         The likelihood of administration being successful.

        vii.         Parties’ conduct. 

4.    If leave is granted, conditions regarding the conduct of proceedings may be imposed.[137] These may include limiting issues that may  be  raised  during  the  dispute, requiring security or undertakings, or giving procedural directions.[138]

5.    If leave is refused, the court may still impose conditions. These may include giving directions to the administrator.[139]

Where a stay is lifted and the claimant wins against an insolvent respondent, it will once again require the court’s permission to enforce proceedings - see 4.9 below.

4.7. What to do if the stay is not lifted?

4.7.1.   Consequences of a failure to observe a stay

If insolvency proceedings continue in breach of a stay, the insolvency trustee can seek a court order confirming the stay.[140] If the proceedings still continue, the parties and tribunal can be held in contempt of court, though this sanction is rarely applied in practice.[141]

Failure to comply with a stay will further result in a violation of public policy[142] and may leave an award vulnerable to be set aside under section 68(2)(g) of the AA  1996.[143] It should be noted, however, that a court may retrospectively lift a stay, thus legitimising arbitration proceedings  commenced  or  continued  in  breach  of  a  stay.[144]

4.7.2.   Bringing a claim in insolvency proceedings

As set out under 4.1 above, insolvency will not necessarily render arbitration impossible. Insolvent claimants are frequently allowed to engage in proceedings, and both insolvent claimants and respondents may apply for a stay to be lifted.

However, there will be situations where, for whatever reason, the stay is not lifted. Under such circumstances, the claimant’s best course of action against an insolvent respondent may be to prove its debt during the insolvency process, especially if it is an unsecured creditor. This is because secured creditors may instead enforce their security directly outside of the insolvency process.[145]

Proving a debt is an especially suitable measure where the insolvent respondent is in liquidation. Whilst administration has as its main aim a company’s recovery, the opposite is true for liquidation. Not only will assets be distributed but the company may well be dissolved. If a party does not prove its debt during the insolvency process, it may therefore not recover anything.[146] Proving in the insolvency process also allows a party to participate in decisions made by creditors in connection with the insolvency,[147] which may be useful where that party has a specific interest in certain assets held by the insolvent company.  

If a claimant disagrees with an insolvency trustee’s decision on the amount of its debt, it can use the insolvency process to challenge such a decision. Alternatively, it may attempt to negotiate a settlement with the trustee,[148] as discussed under 4.5 above, or seek permission from the court to resolve the dispute through arbitration.[149]

The submission of  a  proof  of  debt  during  insolvency  proceedings  does not mean that a party has waived its right to arbitrate.  A creditor who proves during an insolvency process may still rely on an arbitration agreement to ensure that claims against it by the insolvency trustee remain subject to arbitration.[150]

4.8. Claims in breach of a valid arbitration agreement

 If a potential claimant has a claim for a disputed debt under a valid arbitration agreement involving a near-insolvent respondent, it must bring that claim in arbitration. Where a winding-up petition relates to a debt subject to an arbitration agreement, it will be “dismissed or stayed in favour of arbitration.”[151] Agreements to arbitrate will also prevail over insolvency trustees’ powers to resolve claims and counterclaims using the ‘insolvency set-off’ process contained in Rule 14.25 of the IR 2016.[152]

Similarly, where a claimant is granted permission to commence or continue arbitration proceedings but the insolvent counterparty asserts that the dispute should be resolved in front of a foreign insolvency court, English  courts  will not  recognise  such  foreign  proceedings.[153] Where the dispute falls within the remit of a valid arbitration agreement,[154] they may refuse to stay the England or Wales-seated arbitration proceedings or even  issue  anti-suit  injunctions  to  prevent  the  foreign proceedings. In the recent Riverrock case,[155] for example, the High Court issued an anti-suit injunction against Russian insolvency proceedings that were brought in breach of  a valid arbitration agreement.[156] Where an insolvent counterparty argues that insolvency renders the dispute non-arbitrable, i.e., that it must be resolved in insolvency proceedings, English courts will review the relevant procedural law and the law of the arbitration agreement in order to assess whether the dispute in question is arbitrable.

4.9. Issues surrounding insolvency and enforcement

If an arbitral award is issued, it will still need to be enforced at a location where the award debtor has assets. Enforcement is carried out by local courts, who, subject to certain requirements, are obliged to enforce arbitral awards if they are signatories to the New York Convention.

As discussed under 3.3 above, however, automatic recognition and enforcement may be subject to certain exceptions.[157] For example, where a party is domiciled in a jurisdiction that deems insolvency to retrospectively remove parties’ capacity to enter into arbitration agreements, the courts may hold that an award involving such a party is non-enforceable.[158] In other cases, the court may deem that insolvency renders the dispute non-arbitrable at the place of enforcement,[159] or that enforcing an award against an insolvent party contravenes public policy in the country of enforcement.[160]

The aforementioned possibilities may impact arbitrators’ decision making during the proceedings and lead them to apply foreign insolvency law even where English courts have not (yet) done so.[161] This may be because they believe they should account for the “mandatory rules of international public policy in jurisdictions where enforcement may ultimately be sought,”[162] as failure to do so may waste parties’ time and money.[163] Such independent decision making by a tribunal occurred during LCIA proceedings seated in London, where one party became subject to insolvency proceedings in Poland.[164]  Without any recognition by the courts, the tribunal applied the EU Insolvency Regulation recognition rules; an approach subsequently endorsed by the High Court.[165]  In another arbitration seated in London, one party became subject to insolvency proceedings in Egypt.  Though none of the parties applied for the insolvency to be recognised in England, the tribunal recognised the insolvency.[166]

Where the insolvent party is domiciled in the UK, tribunals will have regard to a similar set of issues. Under the IA 1986, enforcement proceedings are a type of “legal proceedings” and so must be stayed during insolvency.[167] This applies both to enforcement proceedings commenced after insolvency[168] as well as those already underway once insolvency commences.[169] In effect, this means that any arbitral award ranks pari passu, i.e., equally, with other unsecured debts.[170]  If the winner of arbitral proceedings wishes to take part in any distribution among the award debtors’ creditors it  will  still  need  to ”prove” in  the  insolvency  process (see 4.7.2 above). However, having an award gives the award creditor the advantage of being able to clearly establish the sum owed to it. Further, it may grant it the benefit of non-monetary relief, such as a declaration on entitlements  or  property  rights, which may be of aid in establishing claims outside of the insolvency process.[171]

5.    Looking forward – drafting suitable clauses

As discussed under 4.5 above, parties are exposed to the particularities of their arbitration agreement when determining the risk of bringing insolvency claims against an insolvent party. However, many such risks may be avoided prior to disputes arising by ensuring that arbitration agreements are suitably worded and that options such as summary judgment are available.[172]

In large law firms, transactions containing arbitration agreements are usually negotiated and drafted by other practice groups. Nevertheless, arbitration practitioners may be able to provide input when colleagues ask them to review those arbitration agreements. Additionally, arbitration practitioners might be pro-active and recommend that their firm update their standard draft arbitration clauses with a view to making matters as convenient as possible for a client directly or indirectly affected by insolvency.

6.    Bibliography

6.1. Table of cases

6.1.1.   England and Wales

A v B [2016] EWHC 3003 (Comm)

AES Barry Ltd. v TXU Europe Energy Trading [2004] EWHC 1757 (Ch)

Baytur SA v Finagro Holding SA, English Court of Appeal [1992] 1 Lloyd’s Rep. 134

Belmont Park Investments PTY Ltd v BNY Corporate Trustee Services Ltd [2011] UKSC 38, [2012] 1 All ER 505, [2012] 1 AC 383

Bresco Electrical Services Ltd (In Liquidation) v Michael J Lonsdale Ltd [2020] UKSC 25

Bristol Airport plc v Powdrill [1990] 2 All ER 493; [1990] Ch 744

Cosco Bulk Carrier Co Ltd v Armada Shipping SA [2011] EWHC 216 (Ch)

Elektrim SA v Vivendi Universal SA [2007] EWHC 571 (Comm) [2007]

Fiona Trust Corporation v Privalov [2007] UKHL 40

Fulham Football Club Ltd v Richards [2011] EWCA Civ 855

Helice Leasing S.A.S v PT Garuda Indonesia (Persero) TBK [2021] EWHC 99 (Comm)

Manning v AIG Europe UK Ltd [2006] EWCA Civ 7

New Cap Reinsurance Corporation Ltd v HIH Casualty and General Insurance Ltd [2002] 2 BCLC 228, [2002] EWCA Civ 300

Philpott v Lycee Francais Charles De Gaulle School [2015] EWHC 1065 (Ch)

Premium Nafta Products Ltd v Fili Shipping Co Ltd [2007] UKHL 40

RAB Capital Plc v Lehman Brothers International (Europe) [2008] EWHC 2335 (Ch)

Re Atlantic Computer Systems plc (No 1) [1990] EWCA Civ 20 

Riverrock Securities Ltd v International Bank of St Petersburg [2020] EWHC 2483 (Comm)

Salford Estates (No 2) Ltd v Altomart Ltd (No 2) [2015] Ch 589

South Coast Construction Ltd v Iverson Road Ltd [2017] EWHC 61

Telnic Ltd v Knipp Medien Und Kommunikation GmbH [2020] EWHC 2075 (Ch)

 TPS Investments (UK) Ltd (In Administration) Re [2020] EWHC 1135 (Ch)

6.1.2.   International

Decision of 16 October 2012, 31 ASA Bull. 354, 366 (Swiss Federal Tribunal)

In re U.S. Lines, Inc., 197 F.3d 631 (2d Cir. 1999)

Vivendi SA v Deutsche Telekom AG Decision of 31 March 2009, 4A_428/2008 (First Civil Law Court Switzerland)

6.1.3.   Arbitral awards

Award in CAM Case (2016)

Eskosol S.p.A. in liquidazione v Italian Republic, ICSID Case No. ARB/15/50 (2020)

ICC Case No. 1350 (1975)

ICC Case No. 4415 (1984)

ICC Award No. 6057 (1991)

ICC Case No. 11028 (2002)

ICC Award No. 12907 (2005)

LCIA Interim Award, Elektrim SA v Vivendi Universal SA (2008)

Syrian Co v French Co (1993)

6.2. Table of legislation

6.2.1.   National – primary legislation

Solicitors Act 1974

Senior Courts Act 1981

Insolvency Act 1986

Arbitration Act 1996

Financial Services and Markets Act 2000

Corporate Insolvency and Governance Act 2020 

6.2.2.   National – other

Insolvency (England and Wales) Rules 2016 No. 1024

SRA Code of Conduct for Solicitors, RELs and RFLs

LCIA Arbitration Rules 2020

6.2.3.   International

Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1958

UNCITRAL Model Law on Cross-Border Insolvency (1997)

Latvian Civil Procedure Law (No. 860) (1998)

Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings

6.3. Bibliography - all other secondary resources

6.3.1.   Books

 Born, G., International Commercial Arbitration (Kluwer Law International, 2021)

Karabelnikov B. (eds), ICCA International Handbook on Commercial Arbitration, (ICCA & Kluwer Law International, 2020)

Kroll S., Pervasive Problems in International Arbitration (Kluwer Law International, 2006)

Lew J., Mistelis L., and Kroll S., Comparative International Commercial Arbitration (Kluwer Law International, 2003)

Mavrikakis A. and others, Business Law and Practice 2019/20 (College of Law Publishing, 2019)

Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014)

6.3.2.   Journals

Deyan Draguiev, 'The Effect of Insolvency on Pending International Arbitration: What Is and What Should Not Be' [2015] Journal of International Arbitration

Doug Jones AM, 'Insolvency and Arbitration: An Arbitral Tribunal’s Perspective' [2012] The International Journal of Arbitration, Mediation and Dispute Management 

Jonathan Sutcliffe and James Rogers, 'Effect of Party Insolvency on Arbitration Proceedings: Pause for Thought in Testing Times' [2010] The International Journal of Arbitration, Mediation and Dispute Management

Pierre Karrer, ‘Views on the Decision by the Swiss Supreme Court of March 31, 2009, Vivendi. v Deutsche Telekom’ [2010] Swiss Arbitration Association Bulletin

6.3.3.   Practice guides, reports, government notices, law firm notes, etc.

Ali Shalchi and Lorraine Conway, ‘New business support measures: Corporate Insolvency and Governance Act 2020’ (House of Commons Library, 26 March 2021) <https://commonslibrary.parliament.uk/research-briefings/cbp-8971/> last accessed 05 June 2021

DLA Piper, ‘Getting insolvency proceedings recognized in the UK: Have you thought about section 426?’ (DLA Piper, 7 October 2019) <https://www.dlapiper.com/en/us/insights/publications/2019/10/global-insight-issue-30/getting-insolvency-proceedings recognised-in-the-uk/> last accessed 05 June 2021

Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021

Kirkland & Ellis, ‘UK Extends Temporary Insolvency-Related Measures in Light of COVID-19’ (Kirkland & Ellis, 25 March 2021) <https://www.kirkland.com/-/media/publications/alert/2021/03/uk-extends-temporary-insolvencyrelated-measures-in.pdf> last accessed 05 June 2021

ICCA and Queen Mary University, London, ‘Report of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration’ (ICCA, April 2018) < https://cdn.arbitration-icca.org/s3fs-public/document/media_document/Third-Party-Funding-Report%20.pdf> last accessed 05 June 2021

Norton Rose Fulbright, ‘International arbitration report: Issue 14’ (Norton Rose Fulbright, June 2020) <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/international-arbitration-report---issue-14.pdf?la=en-us&revision=> accessed 05 June 2021

Norton Rose Fulbright, ‘Litigation Trends Survey: Sixteenth annual edition’ (Norton Rose Fulbright, March 2021) <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/2020-litigation-trends.pdf?la=en-us&revision=bb734ca2-6d8d-48bb-8a69-57867c6da1bf> accessed 05 June 2021

Norton Rose Fulbright, ‘The UK Corporate Insolvency and Governance Act 2020: A move to a more debtor-friendly restructuring regime?’ (Norton Rose Fulbright, July 2020) <https://www.nortonrosefulbright.com/en-de/knowledge/publications/5ac21a15/the-uk-corporate-insolvency-and-governance-act-2020> last accessed 05 June 2021

Oliver Marsden and Rory McLeod, ‘Commercial Arbitration: United Kingdom - England & Wales’ (Global Arbitration Review, 20 May 2021) <https://globalarbitrationreview.com/insight/know-how/commercial-arbitration/report/united-kingdom> last accessed 05 June 2021 

Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report Of England And Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021

Practical Law, ‘The moratorium under Part A1 of the Insolvency Act 1986’ (Practical Law, Maintained (i.e., date not applicable) <https://uk.practicallaw.thomsonreuters.com/w-026-0555?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&comp=pluk&OWSessionId=7c381bbe7ef74af1a2db81408aa1e1fb&skipAnonymous=true&firstPage=true#co_anchor_a351204> last accessed 05 June 2021

Queen Mary, University of London and White & Case, ‘2018 International Arbitration Survey: The Evolution of International Arbitration’ (Queen Mary University, 2018) < http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2018-International-Arbitration-Survey---The-Evolution-of-International-Arbitration-(2).PDF> accessed 05 June 2021

Tom Cummins and others ‘The LCIA updates its arbitration rules: a good fit for the energy and resources sectors?’ (Ashurst, Date unknown) <https://www.ashurst.com/en/news-and-insights/legal-updates/the-lcia-updates-its-arbitration-rules-a-good-fit-for-the-energy-and-resources-sectors/> accessed 05 June 2021.

UK Government, ‘Prohibition of termination clauses’ (UK Government, 5 June 2020) <https://www.gov.uk/government/publications/corporate-insolvency-and-governance-bill-2020-factsheets/prohibition-of-termination-clauses> last accessed 05 June 2021

UK Government, ‘Statutory demands and winding-up notices’ (UK Government, 5 June 2020) <https://www.gov.uk/government/publications/corporate-insolvency-and-governance-bill-2020-factsheets/statutory-demands-and-winding-up-notices> last accessed 05 June 2021

UK Government, ‘Liquidation and insolvency’ (UK Government, 30 April 2021) <https://www.gov.uk/government/publications/liquidation-and-insolvency/liquidation-and-insolvency> last accessed 05 June 2021

[1] Norton Rose Fulbright, ‘International arbitration report: Issue 14’ (Norton Rose Fulbright, June 2020) <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/international-arbitration-report---issue-14.pdf?la=en-us&revision=> accessed 05 June 2021, p 10.

[2] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021, p 3.

[3] Norton Rose Fulbright, ‘International arbitration report: Issue 14’ (Norton Rose Fulbright, June 2020) <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/international-arbitration-report---issue-14.pdf?la=en-us&revision=> accessed 05 June 2021, p 20.

[4] ‘Norton Rose Fulbright, ‘Litigation Trends Survey: Sixteenth annual edition’ (Norton Rose Fulbright, March 2021) <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/2020-litigation-trends.pdf?la=en-us&revision=bb734ca2-6d8d-48bb-8a69-57867c6da1bf>accessed 05 June 2021, page 17.

[5] Norton Rose Fulbright, ‘Litigation Trends Survey: Sixteenth annual edition’ (Norton Rose Fulbright, March 2021) <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/2020-litigation-trends.pdf?la=en-us&revision=bb734ca2-6d8d-48bb-8a69-57867c6da1bf>accessed 05 June 2021, p. 4.

[6] Queen Mary, University of London and White & Case, ‘2018 International Arbitration Survey: The Evolution of International Arbitration’ (Queen Mary University, 2018) <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2018-International-Arbitration-Survey---The-Evolution-of-International-Arbitration-(2).PDF> accessed 05 June 2021, p 5.

[7] Jonathan Sutcliffe and James Rogers, 'Effect of Party Insolvency on Arbitration Proceedings: Pause for Thought in Testing Times' [2010] The International Journal of Arbitration, Mediation and Dispute Management, p 276.

[8] In re U.S. Lines, Inc., 197 F.3d 631 (2d Cir. 1999).

[9] Lew J., Mistelis L., and Kroll S., Comparative International Commercial Arbitration (Kluwer Law International, 2003), pp 2-5.

[10] Grounds on which states may refuse enforcement are listed in Article V of the New York Convention. As a preliminary matter, it must be checked whether the enforcing state has a reciprocity reservation or a commercial reservation. The former means that it will only enforce awards issued in the state of another signatory to the New York Convention. As the UK is a signatory, this will not pose a problem in relation to awards issued by tribunals seated in England or Wales, as discussed here. The commercial reservation means that a state will only enforce awards that it deems to relate to commercial matters. This is generally interpreted fairly widely so should also not pose a problem.

[11] Queen Mary, University of London and White & Case, ‘2018 International Arbitration Survey: The Evolution of International Arbitration’ (Queen Mary University, 2018) <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2018-International-Arbitration-Survey---The-Evolution-of-International-Arbitration-(2).PDF> accessed 05 June 2021, p 5.

[12] Oliver Marsden and Rory McLeod, ‘Commercial Arbitration: United Kingdom - England & Wales’ (Global Arbitration Review, 20 May 2021) <https://globalarbitrationreview.com/insight/know-how/commercial-arbitration/report/united-kingdom> last accessed 05 June 2021.

[13] Fiona Trust Corporation v Privalov [2007] UKHL 40; Helice Leasing S.A.S v PT Garuda Indonesia (Persero) TBK [2021] EWHC 99 (Comm).

[14] Apart from inserting section 349A into the Insolvency Act 1986.

[15] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), p 220.

[16] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 110; Belmont Park Investments PTY Ltd v BNY Corporate Trustee Services Ltd [2011] UKSC 38, [2012] 1 All ER 505, [2012] 1 AC 383.

[17] Jonathan Sutcliffe and James Rogers, 'Effect of Party Insolvency on Arbitration Proceedings: Pause for Thought in Testing Times' [2010] The International Journal of Arbitration, Mediation and Dispute Management, p 279; Article II(3) in conjunction with V(2)(a) of the New York Convention.

[18] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), pp 65-66.

[19] Fulham Football Club Ltd v Richards [2011] EWCA Civ 855.

[20] Born, G., International Commercial Arbitration (Kluwer Law International, 2021), p 1084.

[21] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 82.

[22] Please not that this is not the same as ‘set aside proceedings’, which refers to an arbitral award being set aside.

[23] Section 238, IA 1986.

[24] Section 239, IA 1986.

[25] Art. 487(8), Latvian Civil Procedure Law; Born, G., International Commercial Arbitration (Kluwer Law International, 2021), 1085.

[26] Decision of March 31, 2009, Vivendi SA v Deutsche Telekom AG, 4A_428/2008 (First Civil Law Court Switzerland.).

[27] Pierre Karrer, ‘Views on the Decision by the Swiss Supreme Court of March 31, 2009, Vivendi. v Deutsche Telekom’ [2010] Swiss Arbitration Association Bulletin, p 111; Born, G., International Commercial Arbitration (Kluwer Law International, 2021), pp 1093-1094.

[28] E.g., decision of 16 October 2012, 31 ASA Bull. 354, 366 (Swiss Federal Tribunal).

[29] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021, p 4.

[30] Philpott v Lycee Francais Charles De Gaulle School [2015] EWHC 1065 (Ch); Bresco Electrical Services Ltd (In Liquidation) v Michael J Lonsdale Ltd [2020] UKSC 25.

[31] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 2.

[32] Or theoretically the administrator, although it is unlikely to seriously consider allowing a claim against the company to commence or continue, unless it has a unless strong counterclaim. This is discussed in more detail below.

[33] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), page 115.

[34] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 12.

[35] Sections 122 and 123, IA 1986.

[36] Norton Rose Fulbright, ‘International arbitration report: Issue 14’ (Norton Rose Fulbright, June 2020) <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/international-arbitration-report---issue-14.pdf?la=en-us&revision=> accessed 05 June 2021, p 10.

[37] Schedule 4, paragraph 4, IA 1986.

[38] Schedule 1, paragraphs 5 and 6, IA 1986.

[39] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 81.

[40] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 12; section 130(2), IA 1986.

[41] Bristol Airport plc v Powdrill [1990] 2 All ER 493; [1990] Ch 744

[42] Section 130(2), IA 1986.

[43] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 15.

[44] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 16.

[45] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 15.

[46] Section 13, IA 1986.

[47] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 50.

[48] Section 178(3), IA 1986.

[49] Manning v AIG Europe UK Ltd [2006] EWCA Civ 7.

[50] Section 178(3), IA 1986; Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), p 110.

[51] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 58.

[52] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report Of England And Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 54; Section 7, AA 1996; Premium Nafta Products Ltd v Fili Shipping Co Ltd [2007] UKHL 40.

[53] Born, G., International Commercial Arbitration (Kluwer Law International, 2021), p 375-376.

[54] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), pp 97-98.

[55] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 54.

[56] Section 349A, IA 1986; Philpott v Lycee Francais Charles De Gaulle School [2015] EWHC 1065 (Ch).

[57] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 50-51; section 178(6) IA 1986.

[58] Mavrikakis A. and others, Business Law and Practice 2019/20 (College of Law Publishing, 2019), p 312.

[59] Mavrikakis A. and others, Business Law and Practice 2019/20 (College of Law Publishing, 2019), p 312.

[60] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 12; Schedule B1, para 43, IA 1986.

[61] Bristol Airport plc v Powdrill [1990] 2 All ER 493; [1990] Ch 744

[62] Jonathan Sutcliffe and James Rogers, 'Effect of Party Insolvency on Arbitration Proceedings: Pause for Thought in Testing Times' [2010] The International Journal of Arbitration, Mediation and Dispute Management, pp 279-280.

[63] Schedule 1, paragraph 5, IA 1986.

[64] Schedule 1, paragraph 6, IA 1986.

[65] UK Government, ‘Liquidation and insolvency’ (UK Government, 30 April 2021) <https://www.gov.uk/government/publications/liquidation-and-insolvency/liquidation-and-insolvency> last accessed 05 June 2021.

[66] UK Government, ‘Liquidation and insolvency’ (UK Government, 30 April 2021) <https://www.gov.uk/government/publications/liquidation-and-insolvency/liquidation-and-insolvency> last accessed 05 June 2021.

[67] UK Government, ‘Liquidation and insolvency’ (UK Government, 30 April 2021) <https://www.gov.uk/government/publications/liquidation-and-insolvency/liquidation-and-insolvency> last accessed 05 June 2021.

[68] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 31.

[69] Section 112(1), IA 1986; Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 30.

[70] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 31.

[71] Norton Rose Fulbright, ‘The UK Corporate Insolvency and Governance Act 2020: A move to a more debtor-friendly restructuring regime?’ (Norton Rose Fulbright, July 2020) <https://www.nortonrosefulbright.com/en-de/knowledge/publications/5ac21a15/the-uk-corporate-insolvency-and-governance-act-2020> last accessed 05 June 2021.

[72] Section 5(2)(b),  IA  1986.

[73] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), pp 102-103.

[74] Mavrikakis A. and others, Business Law and Practice 2019/20 (College of Law Publishing, 2019), p 312.

[75] Ali Shalchi and Lorraine Conway, ‘New business support measures: Corporate Insolvency and Governance Act 2020’ (House of Commons Library, 26 March 2021) <https://commonslibrary.parliament.uk/research-briefings/cbp-8971/> last accessed 05 June 2021.

[76] Norton Rose Fulbright, ‘The UK Corporate Insolvency and Governance Act 2020: A move to a more debtor-friendly restructuring regime?’ (Norton Rose Fulbright, July 2020) <https://www.nortonrosefulbright.com/en-de/knowledge/publications/5ac21a15/the-uk-corporate-insolvency-and-governance-act-2020> last accessed 05 June 2021.

[77] Under Part A1.

[78] Practical Law, ‘The moratorium under Part A1 of the Insolvency Act 1986’ (Practical Law, Maintained (i.e., date not applicable) <https://uk.practicallaw.thomsonreuters.com/w-026-0555?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&comp=pluk&OWSessionId=7c381bbe7ef74af1a2db81408aa1e1fb&skipAnonymous=true&firstPage=true#co_anchor_a351204> last accessed 05 June 2021.

[79] Norton Rose Fulbright, ‘The UK Corporate Insolvency and Governance Act 2020: A move to a more debtor-friendly restructuring regime?’ (Norton Rose Fulbright, July 2020) <https://www.nortonrosefulbright.com/en-de/knowledge/publications/5ac21a15/the-uk-corporate-insolvency-and-governance-act-2020> last accessed 05 June 2021.

[80] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[81] Practical Law, ‘The moratorium under Part A1 of the Insolvency Act 1986’ (Practical Law, Maintained (i.e., date not applicable) <https://uk.practicallaw.thomsonreuters.com/w-026-0555?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&comp=pluk&OWSessionId=7c381bbe7ef74af1a2db81408aa1e1fb&skipAnonymous=true&firstPage=true#co_anchor_a351204> last accessed 05 June 2021.

[82] UK Government, ‘Prohibition of termination clauses’ (UK Government, 5 June 2020) <https://www.gov.uk/government/publications/corporate-insolvency-and-governance-bill-2020-factsheets/prohibition-of-termination-clauses> last accessed 05 June 2021.

[83] UK Government, ‘Statutory demands and winding-up notices’ (UK Government, 5 June 2020) <https://www.gov.uk/government/publications/corporate-insolvency-and-governance-bill-2020-factsheets/statutory-demands-and-winding-up-notices> last accessed 05 June 2021.

[84] Kirkland & Ellis, ‘UK Extends Temporary Insolvency-Related Measures in Light of COVID-19’ (Kirkland & Ellis, 25 March 2021) <https://www.kirkland.com/-/media/publications/alert/2021/03/uk-extends-temporary-insolvencyrelated-measures-in.pdf> last accessed 05 June 2021.

[85] Norton Rose Fulbright, ‘The UK Corporate Insolvency and Governance Act 2020: A move to a more debtor-friendly restructuring regime?’ (Norton Rose Fulbright, July 2020) <https://www.nortonrosefulbright.com/en-de/knowledge/publications/5ac21a15/the-uk-corporate-insolvency-and-governance-act-2020> last accessed 05 June 2021.

[86] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 12.

[87] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), p 66.

[88] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), pp 65-66: Born, G., International Commercial Arbitration (Kluwer Law International, 2021), pp 1087.

[89] And so may not wish to waste parties’ time or resources.

[90] Kroll S., 'Pervasive Problems in International Arbitration (Kluwer Law International, 2006), 376.

[91] See Lew, Born and Kroll; ICC Case No. 1350 (1975); ICC Case No. 4415 (1984); ICC Award No. 6057 (1991), Syrian Co v French Co (1993); ICC Case No. 11028 (2002); Award in CAM Case (2016).

[92] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 117. 

[93] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 117. 

[94] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 117. 

[95] DLA Piper, ‘Getting insolvency proceedings recognized in the UK: Have you thought about section 426?’ (DLA Piper, 7 October 2019) <https://www.dlapiper.com/en/us/insights/publications/2019/10/global-insight-issue-30/getting-insolvency-proceedings recognised-in-the-uk/> last accessed 05 June 2021.

[96] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 125-136.

[97] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para. 126.

[98] Cosco Bulk Carrier Co Ltd v Armada Shipping SA [2011] EWHC 216 (Ch).

[99] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 126.

[100] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 117.

[101] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[102] Norton Rose Fulbright, ‘The UK Corporate Insolvency and Governance Act 2020: A move to a more debtor-friendly restructuring regime?’ (Norton Rose Fulbright, July 2020) <https://www.nortonrosefulbright.com/en-de/knowledge/publications/5ac21a15/the-uk-corporate-insolvency-and-governance-act-2020> last accessed 05 June 2021.

[103] Karabelnikov B. (eds), ICCA International Handbook on Commercial Arbitration, (ICCA & Kluwer Law International, 2020, p 22 (of the section on Russia).

[104] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[105] Section 38(3), Arbitration Act 1996.

[106] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 94.

[107] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 99.

[108] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 42.

[109] Given that, for example, certain proceedings are not automatically stayed.

[110] Section 65(2), Solicitors Act 1974.

[111] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[112] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[113] ICCA and Queen Mary University, London, ‘Report of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration’ (ICCA, April 2018) < https://cdn.arbitration-icca.org/s3fs-public/document/media_document/Third-Party-Funding-Report%20.pdf> last accessed 05 June 2021; Eskosol S.p.A. in liquidazione v Italian Republic, ICSID Case No. ARB/15/50 (2020).

[114] SRA Code of Conduct for Solicitors, RELs and RFLs, paras 5.1-5.3.

[115] Section 237, Financial Services and Markets Act 2000

[116] SRA Code of Conduct for Solicitors, RELs and RFLs, paras 3.1 and 3.4.

[117] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[118] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 20.

[119] Baytur SA v Finagro Holding SA, English Court of Appeal [1992] 1 Lloyd’s Rep. 134.

[120] A v B [2016] EWHC 3003 (Comm).

[121] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[122] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[123] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) <https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 50.

[124] If the automatic stay were to be lifted.

[125] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 90.

[126] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[127] Articles 14.6(vi) and 22.1(viii), LCIA Rules; Tom Cummins and others ‘The LCIA updates its arbitration rules: a good fit for the energy and resources sectors?’ (Ashurst, Date unknown) < https://www.ashurst.com/en/news-and-insights/legal-updates/the-lcia-updates-its-arbitration-rules-a-good-fit-for-the-energy-and-resources-sectors/> accessed 05 June 2021.

[128] Subject to insolvency proceedings taking place in the centre of main interests.

[129] Schedule B1, paragraph 43(6), IA 1986.

[130] New Cap Reinsurance Corporation Ltd v HIH Casualty and General Insurance Ltd [2002] 2 BCLC 228, [2002] EWCA Civ 300; Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 45.

[131] AES Barry Ltd. v TXU Europe Energy Trading [2004] EWHC 1757 (Ch); Jonathan Sutcliffe and James Rogers, 'Effect of Party Insolvency on Arbitration Proceedings: Pause for Thought in Testing Times' [2010] The International Journal of Arbitration, Mediation and Dispute Management, pp 279-280.

[132] South Coast Construction Ltd v Iverson Road Ltd [2017] EWHC 61; IBA Insolvency Toolkit, para. 42.

[133] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 14.

[134] RAB Capital Plc v Lehman Brothers International (Europe) [2008] EWHC 2335 (Ch); Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 42.

[135] TPS Investments (UK) Ltd (In Administration) Re [2020] EWHC 1135 (Ch).

[136] Re Atlantic Computer Systems plc (No 1) [1990] EWCA Civ 20.

[137] Schedule B1, paragraph 43(7), IA 1986.

[138] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report Of England And Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 43.

[139] TPS Investments (UK) Ltd (In Administration) Re [2020] EWHC 1135 (Ch)

[140] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report Of England And Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 78

[141] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 13.

[142] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), p 220.

[143] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 132.

[144] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 79.

[145] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 63.

[146] Rule 14.3(1), IR 2016.

[147] Part 15, IR 2016.

[148] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 7.

[149] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, paras 54-55.

[150] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 66.

[151] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021; Salford Estates (No 2) Ltd v Altomart Ltd (No 2) [2015] Ch 589; Telnic Ltd v Knipp Medien Und Kommunikation GmbH [2020] EWHC 2075 (Ch); Section 9, AA 1996.

[152] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 19.

[153] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para. 118.

[154] Section 37, Senior Courts Act 1981.

[155] Riverrock Securities Ltd v International Bank of St Petersburg [2020] EWHC 2483 (Comm).

[156] Riverrock Securities Ltd v International Bank of St Petersburg [2020] EWHC 2483 (Comm).

[157] Doug Jones AM, 'Insolvency and Arbitration: An Arbitral Tribunal’s Perspective' [2012] The International Journal of Arbitration, Mediation and Dispute Management, p 123.

[158] Article V(1)(a) of the New York Convention.

[159] Article V(2)(b) of the New York Convention.

[160] Article V(2)(b) of the New York Convention.

[161] Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), pp 38-39.

[162] Jonathan Sutcliffe and James Rogers, 'Effect of Party Insolvency on Arbitration Proceedings: Pause for Thought in Testing Times' [2010] The International Journal of Arbitration, Mediation and Dispute Management, p 286.

[163] Deyan Draguiev, 'The Effect of Insolvency on Pending International Arbitration: What Is and What Should Not Be' [2015] Journal of International Arbitration, pp 511-512.

[164] LCIA Interim Award, Elektrim SA v Vivendi Universal SA (2008).

[165] Elektrim SA v Vivendi Universal SA [2007] EWHC 571 (Comm) [2007].

[166] ICC Award No. 12907 (2005); Vorburger S., International Arbitration and Cross-Border Insolvency: Comparative Perspectives (Kluwer Law International, 2014), 38-39.

[167] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 99.

[168] Section 128, IA 1986.

[169] Section 183, IA 1986.

[170] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.

[171] Patrick Taylor and Gavin Chesney, ‘IBA Toolkit on Insolvency and Arbitration, Questionnaire: National Report of England and Wales’ (International Bar Association, January 2021) < https://www.ibanet.org/MediaHandler?id=FC0D06DA-7D96-49AE-AC90-D13027976B80> accessed 05 June 2021, para 105.

[172] Duncan Gorst and Josh Redman, ‘Insolvency and arbitration during coronavirus (COVID-19)’ (LexisNexis, 13 November 2020) <https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/618W-M473-GXFD-84NF-00000-00/Insolvency_and_arbitration_during_coronavirus__COVID_19_> accessed 05 June 2021.