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particular legislative framework, they seem to have the same purpose: to centralize the competing monetary claims of individual creditors in one procedure which is collective and summary in nature. It is intended to avoid numerous separate litigations and other proceedings with different ordinary creditors for the settlement of their claims and to deal with them in one, collective proceeding. All the insolvency laws addressed require that the claims of ordinary bankruptcy creditors may only be pursued within bankruptcy proceedings in accordance with the provisions of the insolvency law, usually in a special summary procedure (procedure for the allowance or disallowance of claims, proof of claim, verification procedure), so that any kind of individual pursuit of such claims outside the bankruptcy is excluded.

Accordingly, the claims of ordinary bankruptcy creditors may be considered to be typical bankruptcy issues or 'core' matters. These issues are essential for a bankruptcy case to proceed and are not issues merely related to it.

The consequence of the operation of the relevant provisions discussed is that the national courts in the country where insolvency proceedings are commenced will declare their incompetence if an action is instituted with respect to such claims. Also, already pending litigation will be suspended until the claim is dealt with in the bankruptcy procedure. Accordingly, these provisions do influence the initiation and continuation of the court proceedings. However, the question is whether they have importance in arbitration, which is a non-judicial method of settling disputes. In other words, is there any reason, from the point of view of the insolvency law, to exempt arbitral proceedings from the reach of the stay of individual actions of creditors?

The prevailing view in French literature is that the provisions on preclusion of individual actions are relevant with respect to arbitration.(63) Such a view has also been expressed by the judiciary, holding certain principles of insolvency law to form part of French public policy, both domestic and international. In particular, the provisions on dispossession of the debtor, interruption of proceedings,(64) the principle of the preclusion of individual actions(65) and the principle of equality among creditors(66) are considered to be part of French domestic and international public policy. In these decisions of the French courts, the violation of such principles was the reason for the annulment of an arbitral award.

In the Netherlands, the provision of Art. 26 Fw states that claims for payment against the estate, thus the claims of ordinary bankruptcy creditors, may not be pursued in any other way than by filing the claim for verification in bankruptcy. It may be concluded that they may not be pursued in arbitration either. Such a view also seems to be taken in the literature. It has been suggested that if such a claim is submitted to arbitrators, they should declare the claim inadmissible.(67) The view has also been expressed that an award may be annulled if rendered in an arbitration conducted without filing the claim for verification in bankruptcy.(68) Also, the prevailing view is that the provision of Art. 29, relating to pending proceedings, also applies to arbitration and that the procedural acts undertaken after the suspension are null and void.(69)

It may be said that the applicability of the provision on automatic stay under Sect. 362 has been almost undisputed in US case law. As already mentioned, the scope of Sect. 362(a)(1) is very

broad, so that judicial, administrative and other proceedings against the debtor are stayed. Although arbitration is not expressly mentioned in Sect. 362, it has been indicated in the legislative history that the stay extends to all proceedings, 'including arbitration'. Accordingly, the enforcement of arbitration agreements will be addressed within the framework of the lifting of the automatic stay, if a creditor so requests, relying on the arbitration agreement concluded prior to the bankruptcy proceedings. As in the case of pending litigation, relief from automatic stay will be needed in order to resume arbitral proceedings pending at the moment of the initiation of the bankruptcy procedure. The provision on automatic stay will certainly be effective in the case of domestic arbitration and very likely in arbitrations involving a foreign claimant in arbitral proceedings within the United States.(70) For example, the American Arbitration Association has expressed a readiness to hold in abeyance arbitrations involving a bankrupt party and to await an order of the competent court concerning an automatic stay to the pending proceedings under Sect. 362.(71) Besides, there is the possibility of 'recovery of damages by an individual injured by the wilful violation of the automatic statutory stay'.(72)

Taking into consideration the reasoning of the Court of Appeals for the Second Circuit in Fotochrome, Inc. v. Copal Co., Ltd.,(73) one may come to the conclusion that the United States would not expect an extraterritorial effect of the automatic stay in international arbitration conducted outside the United States. The Court held, inter alia, that the restraining order of the US bankruptcy court was not to have any effect abroad, unless a creditor had minimum contacts with the United States so as to be subject to the in personam jurisdiction of the bankruptcy court. The continuation of arbitration in spite of the restraining order of the bankruptcy court was not sufficient reason to refuse the enforcement of the award subsequently filed in bankruptcy by the creditor as a proof of claim. It should be mentioned, however, that the creditor in this particular case did not ignore the US bankruptcy proceedings. He had filed the claim in the bankruptcy proceeding and had requested an order which would permit its continuation, but the bankruptcy court refused the motion and issued a restraining order instead. Besides, the arbitral proceedings were almost completed and an award was to be rendered. It should also be mentioned that the effectiveness of the automatic stay was not directly addressed in this decision, as it was rendered under the previous 1898 Bankruptcy Act, subsequently repealed by the 1978 Bankruptcy Reform Act.

It seems, however, that the US courts will take a different view if the bankruptcy procedure is entirely ignored by a creditor. Thus, enforcement of an award rendered in London in the ex parte arbitral proceedings commenced after the opening of a bankruptcy procedure in Sweden was denied. The claimant did not file his claim in the bankruptcy proceeding. The award in his favour was rendered and the claimant attempted to enforce it in the United States, where the defendant (the debtor who was subject to the bankruptcy procedure in Sweden) had assets. The trustee objected to the enforcement of the award and requested that effect be given to the Swedish bankruptcy procedure under Sect. 304 of the Bankruptcy Code. After recognition was granted to the Swedish bankruptcy on the basis of comity under Sect. 304, the Court refused the enforcement of the arbitral award as being contrary to public policy.(74) It may be expected that the US courts will do the same if US bankruptcy proceedings are ignored.

In a similar vein, after the Scheme of Arrangement made in England was given effect in the United States, the court refused to refer the parties to arbitration before the creditor had complied with the terms of the Scheme of Arrangement.(75)

It may be concluded that, from the point of view of insolvency law, the relevant provisions on the preclusion of individual actions of ordinary creditors also concern the creditors who entered into arbitration agreements with the debtor prior to the commencement of the bankruptcy procedure. The same is true with respect to already pending arbitral proceedings as regards this type of claim. It is difficult to find a reason why the creditors that have concluded arbitration agreements with the debtor should not be required to file their claims for verification, while all other creditors would be required to do so. Thus, it cannot be concluded that the creditor who previously agreed on arbitration with the debtor is exempted from the requirement to have his claim filed and dealt with in a verification procedure if he wishes to participate in the distribution of the debtor's estate.

Should the award rendered in violation of the provisions on preclusion of individual actions be accepted in bankruptcy if subsequently submitted by the creditor in support of his claim? Violation of the principle of preclusion of individual actions may present the reason for non-acceptance of the award in the bankruptcy proceeding or the reason for setting the award aside. Indeed, the question of the acceptance of the award arises only if the award is rendered before the expiry of the time limit for submitting a claim for verification, and in any case before the actual distribution has taken place. In other words, a creditor who fails to assert his bankruptcy claim in good time runs the risk that the distribution of the estate will already have been completed and there are no assets available for the recovery of his claim.

From the point of view of insolvency law, several reasons justifying the non-acceptance of an award rendered in violation of the preclusion of individual actions may be indicated. Only some of them will be mentioned here(76) A centralization of competing claims by ordinary bankruptcy creditors in collective, summary proceedings is one of the purposes intended to be achieved by the provisions on preclusion of individual actions. They ensure that all non-secured creditors are given the same opportunity to participate in the distribution of the estate. A creditor whose claim is supported by a judgment or any other executory title may have a stronger position in bankruptcy. Therefore, all the creditors should have the same opportunity to obtain such title.

In addition, the admission of a claim in verification may render any further proceedings redundant because the dispute has already been settled for the purposes of the bankruptcy procedure.

The strongest argument for the non-acceptance of the award, issued in violation of this principle, seems to be the collective nature of the verification procedure. Not only the trustee, but also other creditors and the debtor have the right to contest a claim in verification. The party that has disputed the claim becomes the party to the subsequent adversarial proceedings for the settlement of the verification dispute. Thus, at the moment of the commencement of the bankruptcy liquidation and before verification it may be uncertain against whom the proceedings should be resumed, if pending, or should be initiated.

It should be mentioned, however, that a rendering of the award should not be precluded when the rendering of a judgment before national courts would also not be prevented by the provisions on the stay.(77)

Accordingly, any violation of the stay of individual action by ordinary bankruptcy creditors may be considered to be a violation of one of the fundamental principles of insolvency law, which may disturb a balance of the competing interests provided by insolvency law.

4.3 Implications of the stay of individual actions in arbitration

The conclusion that, from the perspective of insolvency law, the provisions on the stay extend to arbitration does not necessarily imply that arbitration is excluded with respect to this type of claim in all the legal systems analysed. It does not suggest either that it should be excluded. Whether and when it may be excluded and when it may only 'complicate'(78) arbitration will be addressed below.

4.3.1 Admitted claims

The admittance of a claim in verification will render any other procedure redundant, thus also arbitration. In other words, there will be no dispute that needs to be settled, for the purposes of the bankruptcy procedure. Accordingly, no question of the so-called 'indirect enforcement' of an arbitration agreement would arise, nor would it be necessary to continue already pending arbitral proceedings. Any further proceedings would have no meaning and effect for the bankruptcy procedure.

The issue whether a creditor may have an interest in having an arbitral award determine the obligations between the debtor and himself, will not be discussed here.(79)

4.3.2 Contested claims

If the claim is contested in the verification, the need to resolve the dispute(80) will arise (if no proceedings with respect to these claims were initiated before the commencement of the bankruptcy procedure) or will revive (if there are proceedings already pending with respect to such claims). The following questions will be discussed in the following text: Will the pending arbitral proceedings be resumed when the claim is disputed in the verification (4.3.2.1) and will the creditor be able to invoke successfully an arbitration agreement against the party contesting the claim in order to settle the dispute, when no arbitration was pending at the moment of the commencement of bankruptcy (4.3.2.2)?

4.3.2.1 Pending arbitral proceedings

Taking into consideration the relevant provisions of the insolvency statutes in France and the Netherlands, it may be concluded that they would not prevent already pending arbitral proceedings from being continued after the claim has been contested in bankruptcy. In other words, the

provisions on the stay contained in the insolvency statutes in France and the Netherlands do not operate so as to deprive the authorities of the jurisdiction they already have over a case.(81) The relevant provisions in the French and Dutch insolvency statutes provide for suspension of pending proceedings and for their continuation without any further approval of the court having jurisdiction in bankruptcy.

Thus, from the wording of Art. 48 of the Loi du 25 janvier 1985 it can be concluded that pending proceedings, thus also arbitrations, may be suspended until the declaration of the claim in bankruptcy and may be resumed without the need for an authorization of the court. It may be required that the creditors' representative and the administrateur in redressement judiciaire (if necessary) are duly notified, as the provision of Art. 48 is considered to be a part of public policy.

Accordingly, the arbitration would not be excluded, but public-policy considerations and possible limitations concerning the conduct of arbitral proceedings and the content and form of the award may play an important role. In other words, even if the claim is filed in bankruptcy and arbitral proceedings are continued (or initiated) without violating the relevant provisions of insolvency law, an arbitral award may still be annulled as violating the principle of stay of individual actions. Thus, an award condemning the debtor to payment can be set aside because of a violation of the principle of preclusion of individual actions of creditors, which is considered to be a part of French domestic and international public policy.(82) As mentioned previously, besides the preclusion of individual actions of creditors, the principle of interruption of proceedings, the dispossession of the debtor and the principle of equal treatment of creditors are held to be part of French domestic and international public policy. In the Netherlands, the view has been expressed that, by applying of Art. 29 Fw, the pending arbitral proceedings will be suspended and may be continued if the claim is disputed in the verification procedure, either by the trustee or by another creditor.(83) Accordingly, the relevant provision on the suspension of the pending proceedings with respect to the claims of ordinary bankruptcy creditors contained in Art. 29 Fw does not operate so as to exclude or prevent the continuation of pending arbitral proceedings. Such a view seems to be appropriate if this provision does not preclude pending court proceedings from being resumed after the claim has been dealt with and contested in a verification procedure; then the arbitral proceedings should not be precluded from continuation either.(84)

Unlike the relevant provisions of the insolvency statutes in France and in the Netherlands, the automatic stay under Sect. 362 of the United States Bankruptcy Code can, in theory, be lifted only by the decision of the court having jurisdiction in bankruptcy.(85) The decision lifting the automatic stay will be needed regardless of whether or not arbitral proceedings are pending at the time of the commencement of the bankruptcy procedure. The US court decisions treated this issue, in principle, as a matter of the enforcement of arbitration agreements and the lifting of the automatic stay, whereby the distinction between pending and non-pending arbitrations has rather seldom been made expressly.(86) The arguments and reasoning of the various US courts, when deciding on the enforcement of arbitration agreements with respect to creditors' claims contested in bankruptcy, will be addressed infra (4.3.2.2.3).

4.3.2.2 Non-pending arbitrations

仲裁与破产进程

particularlegislativeframework,theyseemtohavethesamepurpose:tocentralizethecompetingmonetaryclaimsofindividualcreditorsinoneprocedurewhichiscollectiveandsummaryinnature.
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