ARBITRATION AND INSOLVENCY PROCEEDINGS: CLAIMS OF ORDINARY BANKRUPTCY CREDITORS

After the commencement of proceedings for bankruptcy liquidation, any non-secured claim for payment against the estate may be pursued only by filing in bankruptcy procedure. Any ordinary creditor who wishes to obtain payment from the proceeds of the estate must file his claim for verification or proof in bankruptcy. The purpose is that claims of ordinary, non-secured, non-preferred creditors are dealt with in a single, collective procedure. Since these claims are in the very essence of the bankruptcy procedure, they may be considered to be typical bankruptcy issues.

This article examines whether the claims of ordinary creditors should, consequently, be considered to be excluded from arbitration (thus, to be non-arbitrable). Non-arbitrability of the subject matter may be a reason for non-enforcement of an arbitration agreement, annulment of an award and a reason for the refusal of the enforcement of an award. If, in contrast, such claims should not be considered to remain outside the domain of arbitration, it is examined whether the relevant provisions of insolvency law may have any further influence on arbitration. In particular, the issue of the effectiveness of arbitration agreements, as well as the provisions of insolvency law relating to pending proceedings concerning such claims, are analysed. These issues are addressed taking into consideration the relevant provisions of arbitration and insolvency in statutory regulation, case law and legal writings in France, the Netherlands and the United States.

1. Introduction

2. Insolvency and arbitration: Main features and basic principles

2.1 Insolvency law

2.2 Arbitration

3. Binding effect of arbitration agreements concluded prior to the commencement of bankruptcy proceedings

3.1 France and the Netherlands

3.2 United States

4. Claims of ordinary bankruptcy creditors

4.1 Preclusion of individual actions by ordinary creditors

4.1.1 France

4.1.2 The Netherlands

4.1.3 United States

4.2 Applicability of the stay of individual actions in arbitration

4.3 Implications of the stay of individual actions in arbitration

4.3.1 Admitted claims

4.3.2 Contested claims

4.3.2.1 Pending arbitral proceedings

4.3.2.2 Non-pending arbitrations

4.3.2.2.1 Non-arbitrability of contested claims

4.3.2.2.2 Modalities of enforcement of arbitration agreements (France)

4.3.2.2.3 The discretion of the courts in bankruptcy (United States)

5. Conclusion

Notes