Arbitration and insolvency law in Dubai - is there a link?

Try to imagine a legal system without an effective insolvency law, as in Dubai. How would creditors recover their entitlements? Does it lead to more arbitration activity? Does it explain why the Dubai International Arbitration Centre had over 300 new cases last year and why arbitration is increasingly used?

Insolvency law - is it really necessary?

An adjudicator can only deal with one dispute under one contract. In Enterprise v McFadden the adjudicator could not therefore deal with a claim to a net balance arising out of mutual dealings on four separate subcontracts (one of which was not even a construction contract) under Rule 4.90 of the Insolvency Rules 1986. Tripartite adjudication is not possible so the adjudication could not cope with a cross claim which would have involved joining assignors.

In France, when bankruptcy proceedings are instituted against a party involved in a pending arbitration it can result in conflicts between the applicable arbitration and insolvency rules. In that context, an arbitral tribunal sitting in France may be confronted with determining the extent to which they must defer to mandatory insolvency rules.

Thailand introduced reforms to its bankruptcy laws in 1998 in the aftermath of the 1997 Asian financial crisis. Those reforms introduced business reorganisation provisions similar to the Chapter 11 provisions of the US Bankruptcy Code. Further amendments have been made to the Thai bankruptcy laws, which are now governed by the Bankruptcy Act BE 2483 (1940) as amended by the Bankruptcy Act (No. 7) BE 2547 (2004).

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In a nutshell, arbitration must fulfil two main aims to be attractive to its potential users: enforceability of the award must be certain and proceedings must be efficient. In light of those aims, the year 2015 brought two major changes to arbitration proceedings in Poland. Firstly, the amendment of the Bankruptcy Law put an end to all the doubts that arose with regard to the effect of the bankruptcy proceedings of a party to an arbitration agreement on the validity of such agreement.

In three similar decisions of 17 March 2015[1] the Austrian Supreme Court (“OGH”) clarified how insolvency proceedings may affect an already pending arbitration.

Anderson v. Credit One Bank, N.A. (In re Anderson), 884 F.3d 382 (2d Cir. 2018) [click for opinion]

In Lasmos Ltd v. Southwest Pacific Bauxite (HK) Ltd (02/03/2018, HCCW 277/2017), [2018] HKCFI 426 (Lasmos), the Court of First Instance held that a winding-up petition based on a disputed debt may be dismissed if there was an arbitration clause in the underlying agreement, upon which arbitration has commenced.

Conducting Business in Ukraine 2017 All of the information included in this document is for informational purposes only, and may not reflect the most current legal developments, judgments, or settlements. This information is not offered as legal or any other advice on any particular matter.