The Federal Court of Australia recently determined an application brought by the administrators of a company in voluntary administration seeking judicial guidance on how to deal with claims for costs and interests resulting from two prior arbitrations. The key issue was whether the costs and interests awarded in the previous arbitrations were admissible to proof in the administration of the company, having regard to the fact that the relevant arbitral awards were made after the appointment of administrators.
The Court made a distinction between the two arbitrations as follows:
Whether a dispute that is subject to arbitration can or must be referred to arbitration after one of the parties to a prepetition arbitration agreement files for bankruptcy has long been a source of disagreement among bankruptcy and appellate courts due to a perceived conflict between the Federal Arbitration Act and the Bankruptcy Code. The U.S. Bankruptcy Court for the Northern District of Illinois recently provided some useful guidance regarding this issue.
In Simplicity & Vogue Retailing (HK) Co., Limited [2023] HKCFI 1443, the Hong Kong Companies Court (the “Court“) made a winding up order against the Company on the basis that it failed to pay security in time. In considering the Company’s opposition grounds, the Court commented that it retains discretion to wind up a company in cases involving an arbitration clause.
In the latest decision of the Hong Kong court to consider the interplay between arbitration clauses and winding-up or bankruptcy petitions, on 22 May 2023, the Hon. Linda Chan J (the Judge) made a winding-up order against Simplicity & Vogue Retailing (HK) Co. Limited (the Company) and rejected the Company’s argument that the dispute over the underlying debt should be referred to arbitration.
Two recent judgments from different Australian courts have considered circumstances in which insolvency disputes can (or cannot) be arbitrated in accordance with pre-existing arbitration agreements. In particular, the decisions address the following two key issues:
- when certain insolvency claims can be arbitrated; and
- when a third party can participate in arbitral proceedings either claiming or defending ‘through or under’ a party to the arbitration agreement.
Key takeaways
“within three (3) business days of termination of the mediation, the Debtors shall publicly disclose the terms of the last offers extended by each of the Mediation Parties, respectively.”[Fn. 1]
Say what!?
Whoever heard of such a thing—a requirement that the “last offers” of the mediating parties be publicly disclosed?
And this requirement is in a “consensual” mediation order entered in the Genesis Global Holdco, LLC, bankruptcy.[Fn. 2]
Context
Here’s the context.[Fn. 3]
La 13e édition annuelle de la publication Mining in the Courts fournit une mise à jour complète sur les développements juridiques concernant le secteur minier (disponible en anglais seulement). Cette publication comprend un résumé sur bon nombre des causes les plus importantes, ainsi que des articles offrant un aperçu sur les tendances juridiques actuelles et les défis auxquels l’industrie devra faire face au cours de la prochaine année.
Voici certains des sujets qui y sont abordés :
A GLOBAL LEGAL MEDIA & NISHLIS LEGAL MARKETING PUBLICATION THE US-ISRAEL LEGAL REVIEW 2022 IN ASSOCIATION WITH: Israel’s Unicorn Success Story SNNOVATION The US-Israel Legal Review 2022 1 Contents THE US-ISRAEL LEGAL REVIEW 2022 2 WELCOME FROM THE PUBLISHERS Global Legal Media and Nishlis Legal Marketing 4 ECONOMIC HEADWINDS, A HOT WAR AND A TRADE WAR: THE IMPACT ON ISRAEL’S COMPANIES With rising interest rates, rising inflation and reduced growth forecasts, how has that reality been faced by corporate clients and start-ups? Arnon, Tadmor-Levy provide some answers.
The Society of Trust and Estate Practitioners (STEP) held its annual International Wealth Structuring Forum in the Cayman Islands on 19 and 20 January 2023 at the Ritz-Carlton, Grand Cayman. The forum was an opportunity for leading trust and wealth management professionals to gather and discuss the latest local and international developments impacting the industry. Hector Robinson KC and James Anson-Holland of Mourant attended the forum and have summarised the top three takeaways from the panel discussions.
The mercurial modern assets
Global FDSI Briefing
Welcome to our latest quarterly briefing on legal developments across our global network. I hope you find the articles insightful and thought provoking. Highlights this quarter include recent developments in Italian derivatives case law, an overview of the amendments made to Spain’s insolvency regulation and the UK’s FCA issuing first warning notices against individuals.
If you have any questions or would like further information please do not hesitate to contact me, or one of our global key contacts.
[Matthew Allen]
Matthew Allen