Relying strongly on such a broad grant of jurisdiction and the Congressional intent expressed in the legislative history of the Bankruptcy Code, the vast majority of bankruptcy courts used to hold that they had discretion when deciding on the enforcement of arbitration agreements concluded by the debtor before the commencement of bankruptcy, liquidation or reorganization proceedings. When exercising their discretion, various US bankruptcy, district and circuit courts sometimes enforced such arbitration agreements, and sometimes refused to give effect to them. In deciding on this issue, they employed various approaches and different lines of reasoning. Some examples will be given.
Some courts held that the claims on behalf of the estate should be distinguished from the claims against the estate, whereby in the former cases there was no competing bankruptcy policy.(27) Sometimes a number of factors were suggested for consideration when deciding on the enforcement of arbitration agreements, such as the degree to which a judicial forum was preferable to arbitration, the need for special expertise and the identity of persons comprising the arbitral tribunal.(28) Occasionally, the argument that a trustee is a different legal entity than the debtor was relied upon to deny the enforcement of arbitration agreements.(29)
The 'conflict' between the two Acts was extensively discussed in Zimmerman v. Continental Airlines, Inc.,(30) where the relevant provisions and underlying policies of the two Acts were carefully examined. After such an examination, the Court concluded that the underlying purposes of the Bankruptcy Code 'impliedly modify' the policies of the Federal Arbitration Act and that the enforcement of arbitration agreements in a bankruptcy procedure was to be 'left to the sound discretion of the bankruptcy judge'.(31) This decision was often relied upon by the US courts when refusing to enforce arbitration agreements in the context of bankruptcy proceedings.(32)
Even after the broad grant of jurisdiction to bankruptcy judges had been found to be unconstitutional in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,(33) the decision on the discretion of the bankruptcy courts remained the dominant rule for a number of years.
The Bankruptcy Amendments and Federal Judgeship Act of 1984 was the response of Congress to the Supreme Court's decision in Marathon. A rather complicated set of rules was introduced in Section 1334, supplemented by Sections 157 and 158 (as codified in 28 U.S.C.A.), whereby the jurisdiction of the bankruptcy courts was considerably limited. The scope of jurisdiction of the district court remained virtually unchanged, so that the provisions contained in the newly enacted Section 1334(a) and (b) are identical to the repealed Section 1471(a) and (b). However, the provision conferring the power to bankruptcy courts to exercise all powers conferred upon the district court, previously contained in Section 1471(c), was omitted from the text of Section 1334. Instead, the provision in Section 157 was introduced, containing the non-exclusive list of the so-called 'core' matters - matters arising in or under bankruptcy cases (Sect. 157(b)(2)). The bankruptcy judges were competent to adjudicate bankruptcy cases and to issue final orders concerning the 'core' matters. However, their jurisdiction is limited in non-core or related matters: the bankruptcy courts are competent to hear these disputes and to issue findings of fact, but they lack the competence to enter final orders. These are to be issued by the district court, unless the
agreement of the parties expressly provides for the jurisdiction of the bankruptcy court. In addition to that, deciding on personal injury and wrongful-death actions have remained outside the jurisdiction of bankruptcy courts.(34)
After such an allocation of jurisdiction between the district courts and bankruptcy courts it seems to have been rather difficult to maintain the argument relying on the need to 'centralize' all disputes arising in bankruptcy before one court. Yet, the rule on the discretion of bankruptcy courts remained the prevailing one until the Court of Appeals for the Third Circuit in Hays and Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc.,(35) overruled its decision in Zimmerman. The Court in Hays, held, inter alia, that there was no discretion for the bankruptcy courts when deciding on the enforcement of arbitration agreements in non-core matters, unless it is proved that 'the text, legislative history, or the purpose of the Bankruptcy Code conflicts with the enforcement of an arbitration clause'.(36)
Although often considered in the subsequent decisions of the US courts, it can hardly be said that a uniformity of approaches followed after the decision of the Third Circuit in Hays. The reasoning in Hays was subject to various interpretations(37) and does not seem to be accepted in all circuits. However, in more recent decisions it has been more frequently followed. In any case, although far from being abandoned, the rule on discretion has ceased to be absolute and the most prevailing one, at least with respect to the non-core matters, such as when a third party - a party outside the bankruptcy proceedings - has attempted to invoke an arbitration agreement.
However, the discretion rule seems to have retained its importance with respect to creditors' claims, although it has been more often questioned in some recent decisions.(38) Indeed, the creditors' claims will always fall under the 'core' category: they will be considered either as a matter of allowance or disallowance of claims or as a cause for relief from an automatic stay under Sect. 362. Both issues are expressly indicated to be 'core' proceedings under Sect. 157 (Sect. 157(b)(2)(B) and Sect. 157(b)(2)(G) of the Bankruptcy Code). As will be seen, the enforcement of arbitration agreements with respect to creditors' claims have usually been decided within the lifting of the automatic stay. This issue will be addressed infra (see 4.3.2.2.3).
4. Claims of ordinary bankruptcy creditors
It is almost undisputed in the legal literature that 'pure' bankruptcy issues are not arbitrable. Sometimes it is even considered that the question of arbitrability of insolvency matters has no or little practical relevance.(39) This is so when one thinks of issues such as the orders opening and closing the bankruptcy proceedings and other measures of conduct and surveillance, nominating the trustee, verification, inventorization, collection and distribution of the estate and reorganization of the business. These are so obviously issues of bankruptcy law, raising no doubts as to their non-arbitrability. It is, however, more difficult to determine the actual scope of (non-)arbitrable matters in insolvency. In other words, there are certain issues, such as a dispute arising from the contractual relationship between the parties, which might be considered to be a
'bankruptcy' matter after the commencement of insolvency proceedings under some laws. Non-monetary claims against the estate present an appropriate example for this and illustrate the complexity of the interaction between arbitration and insolvency law. It can well illustrate how the provisions of insolvency law might limit the domain of arbitration or might require it to be respected by the parties and arbitrators. It also illustrates the importance of the nature of claims arising in insolvency and how an ordinary contractual dispute, a kind of dispute that is most frequently decided in arbitration, might become a 'bankruptcy' issue after the commencement of an insolvency procedure. In some published arbitral awards,(40) it can be seen that arbitrators have decided on a claim of an ordinary creditor for payment against the debtor without raising the arbitrability issue, although the determination of these claims could be regarded as a typical bankruptcy issue.
In the text that follows an attempt will be made to answer the question whether the claims of ordinary bankruptcy creditors are considered to be typical bankruptcy issues in all the legal systems analysed and, if so, whether they are consequently considered to be non-arbitrable and, as such, excluded from arbitration. Non-arbitrability may be a reason for refusing to give effect to an arbitration agreement and a reason for setting the award aside or for the refusal of its enforcement. If they are not considered to be outside the domain of arbitration, it will be examined whether the relevant provisions of the insolvency law may have any further influence on arbitration. In other words, are there some provisions of the insolvency law concerning this type of claim which require them to be respected by arbitrators in order not to jeopardize enforceability of the award and its acceptance in the bankruptcy liquidation.
4.1 Preclusion of individual actions by ordinary creditors
One of the basic principles of the bankruptcy procedure is the preclusion of individual actions by creditors. After the commencement of bankruptcy liquidation, non-secured claims for payment against the estate may be pursued only by filing in bankruptcy proceedings. Any ordinary, non-secured, non-preferred creditor must file his claim for verification or proof if he wishes to participate in the distribution of the bankruptcy estate. The creditors, whose claims are not secured or preferred, obtain payments pro rata. The purpose is to deal with such claims in one, collective procedure,(41) in accordance with the provisions of the insolvency law.
The insolvency statutes in all the jurisdictions here analysed contain the provisions on preclusion of individual actions of creditors, at least in the case of bankruptcy liquidation. The relevant provisions of the insolvency law in the United States and France apply both in the bankruptcy liquidation (liquidation judiciaire in France) and reorganization (redressement judiciaire in France).(42)
4.1.1. France
In France the relevant provisions are contained in Arts. 47 and 48 of the Loi du 25 janvier 1885. The principle of preclusion of individual actions by creditors (arrêt des poursuites individuelles) is primarily expressed in Art. 47. Creditors are prevented from taking any legal action intended for
condemning the debtor to pay an amount of money, with respect to the debts emanating prior to the order opening the redressement judiciaire or liquidation judiciaire.(43) The actions to terminate contracts due to the default in the payment of an amount of money are also suspended or precluded.(44) The same is true for all executions on the real estate and movable assets of the debtor.(45) The provision of Art. 47 is deemed to be a part of public policy.(46)
If there are legal proceedings pending with respect to such claims, they will be suspended until the claim is declared in verification proceedings. They may be resumed without any authorization or approval,(47) provided that the representative of the creditors and, if necessary, the administrateur in redressement judiciaire are duly notified. However, the French judiciary seems to have developed the rule that the decisions rendered in such proceedings may not be of a condemnatory nature. In other words, the claim may be only declared and the amount determined in the decision, but without condemning the debtor to pay.(48)
In addition to the provision contained in Art. 48 of the Loi du 25 janvier 1985, there is a provision on interruption of pending proceedings contained in Arts. 369-372 of the French Code of Civil Procedure. Article 369 provides that the pending proceedings are interrupted by the effect of an order opening insolvency proceedings when there is a dispossession of the debtor or when assistance to the debtor is needed.
With the exception of employees, all the creditors have to submit their claims to the creditors' representatives within a period of two months from the day on which the opening order has been published.(49) The representative of the creditors establishes the list of declared claims, within the time limit determined by the court and after having considered the observations of the debtor. The list also includes the proposals to admit or reject a particular claim or to refer it to the competent authority (Art. 100). A juge-commissaire, to whom the list is submitted, decides whether to admit or to reject a particular claim or declares that there are proceedings pending with respect to it or that the claim is not within his competence (Art. 101(1)).
If the juge-commissaire declares his incompetence, the claimant has to initiate proceedings before the competent authority within two months after the notification of the declaration of incompetence (Art. 101(3)).
The provisions of Arts. 47, 48(50) and 101(51) also apply in the case of liquidation judiciaire.
4.1.2 The Netherlands
The preclusion of individual actions by creditors is also incorporated in Dutch insolvency law. In accordance with Art. 26 of the Dutch Faillissementswet (Fw), after the commencement of bankruptcy proceedings all claims against the debtor for payment from the estate may only be asserted in verification proceedings. All claims concerning the rights and obligations of the estate must be filed by or against the trustee in bankruptcy (curator) after the bankruptcy order has been issued.(52) Claims submitted by or against the debtor will have no effect with regard to the estate.(53) The verification procedure is determined by Arts. 108-137 Fw (Chapter V). The claims
admitted in verification are final in bankruptcy proceedings. Only in the case of fraud may the trustee assert the nullity of an admitted claim (Art. 121(4) Fw).
If there are legal proceedings pending against the debtor for payment from the estate, such proceedings will be suspended after the commencement of the bankruptcy procedure and the claim will have to be filed for verification. If the claim is contested in the verification procedure, the pending legal proceedings will be continued against the party that has contested the claim, be it the trustee or a third-party creditor.(54)
If a claim is contested in verification and no legal proceedings are pending at the time of the declaration of bankruptcy proceedings, the rechter-commissaris will refer the parties to the court if he is not able to reconcile the parties. The matter will be settled in the so-called 'renvooiprocedure' (claim validation proceedings), whereby no writ of summons is required to be served (Art. 122 Fw). The renvooiprocedure is, in principle, conducted in accordance with the general rules of civil procedure, with some exceptions. In Dutch literature,(55) it has been suggested that the court having jurisdiction in bankruptcy will be competent to adjudicate such contested claims even if the jurisdiction of another court or arbitrators was agreed prior to the declaration of bankruptcy.(56)
4.1.3 United States
Filing a petition for relief in bankruptcy operates so as to prevent the execution and prosecution of almost all claims against the debtor or the estate under Sect. 362 of the Bankruptcy Code.(57) Such claims have to be filed before the court having jurisdiction over bankruptcy cases.(58) The Bankruptcy Code in Sect. 362(a) provides for an automatic stay of the commencement or continuation of any action or proceedings against the debtor and the estate that was or could have been initiated before the filing for a relief in bankruptcy procedure. The actions and proceedings to be stayed are listed in Sect. 362(a), whereby a 'judicial, administrative and other proceeding against the debtor' are included (Sect. 362(a)(1) of the Bankruptcy Code). In the legislative history to the Bankruptcy Code it is stated, inter alia, that '[a]ll proceedings are stayed, including arbitration' and the stay extends to 'all proceedings even if they are not before governmental tribunals'.(59)
The automatic stay is considered to be the fundamental protection of the debtor and the estate provided by the Bankruptcy Code.(60) It is also said that it operates so as to protect creditors and to provide for their treatment in an orderly manner.(61)
The stay is only temporary and may be either terminated automatically under Sect. 362(c) or lifted by the court at the request of the interested party, as provided in Sect. 362(d) to (g).(62)
4.2 Applicability of the stay of individual actions in arbitration
From the analysis of the relevant provisions of the insolvency laws considered it can be concluded that they do not differ substantially with respect to the objective they intend to achieve. Notwithstanding the differences in the wording or the context in which they are placed in a
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