From the relevant provisions of the insolvency laws addressed it may be concluded that the claims of ordinary bankruptcy creditors can be regarded as typical bankruptcy matters. The obligation to pursue such claims by only filing in the bankruptcy procedure excludes any other jurisdiction until the claims are first dealt with in bankruptcy.
However, the fact that they may be considered bankruptcy matters or 'core' issues does not necessarily imply that such matters are non-arbitrable and that arbitration is excluded in every legal system. In order to determine whether such issues are considered non-arbitrable in a certain jurisdiction, it is necessary to examine the issue of the arbitrability of contested claims - in other words, whether an arbitration agreement can be successfully invoked after the claim has been contested in verification, in order to settle the dispute by arbitration, as provided by the agreement of the parties before the commencement of the bankruptcy procedure.
In general, the scope of arbitrable matters may differ among various legal systems. Even if applying the same basic approach concerning the domain of arbitration, the actual scope of arbitrable matters does not necessarily have to be the same in all legal systems. The provisions on subject-matter arbitrability contained in the arbitration statutes do not usually provide for a clear answer with respect to the scope of arbitrable matters. Therefore, it is a consideration of the relevant provisions of the other statutes and the guidelines from the judiciary are usually to be considered.
It is outside the scope of this work to address the concepts of arbitrability in the legal systems analysed and also to examine the scope of arbitrable matters arising in the insolvency proceedings. Instead, the emphasis will be on the arbitrability of the claims by ordinary bankruptcy creditors.
For the purposes of the present discussion it suffices to mention that the nature of claims in insolvency and the provisions on the jurisdiction of the courts in bankruptcy may play an important role in determining the scope of arbitrable matters. In other words, the scope of the matters falling under the jurisdiction of the courts in bankruptcy may be a relevant factor in determining the scope of the matters that are 'capable of settlement by arbitration'. This is particularly so in the following circumstances:
(i) when the criterion of the 'exclusive jurisdiction' of the judiciary to adjudicate certain matters is accepted as an additional criterion in determining the scope of arbitrable matters. In such circumstances, the extent of the jurisdiction of the courts in bankruptcy may draw the lines of limitation to the domain of arbitration;
(ii) when the jurisdiction of the courts in bankruptcy is broadly defined so as to encompass not only the adjudication of the bankruptcy case, but also all disputes related to insolvency proceedings (vis attractiva concursus). In such cases, the jurisdiction of the courts in bankruptcy may imply a significant limitation to arbitrability, excluding arbitration in a rather large number of cases.
The provisions on jurisdiction play a less important role where the courts in bankruptcy are competent to adjudicate on some closely related disputes, whereby the usual rules on allocation of jurisdiction remain preserved to a great extent.
4.3.2.2.1 Non-arbitrability of contested claims
Disputes concerning the claims contested in verification are classical bankruptcy disputes. With respect to such controversies, vis attractiva concursus may have its strongest expression, so as to 'attract' their adjudication within the jurisdiction of the courts in bankruptcy. This seems to be the case under US law and, to some extent, in Dutch law.
Although the court in bankruptcy in the Netherlands has jurisdiction in all bankruptcy matters,(87) it is generally narrowly interpreted so as to limit vis attractiva concursus to the matters directly connected with the bankruptcy case.(88) However, from the provision of Art. 122 Fw it may be concluded that the jurisdiction of the court in bankruptcy does encompass the verification disputes.(89) Thus, if a claim aiming at payment from the estate is contested in verification, the court deciding on the bankruptcy will be competent to adjudicate the dispute if no proceedings are pending at the moment of the commencement of the bankruptcy.
Accordingly, the wording of Art. 122 Fw seems to imply that an arbitration agreement concluded prior to the bankruptcy may not be successfully invoked by or against the trustee (or another party contesting the claim). After the claim is disputed, the rechter-commissaris will refer the parties to the court having jurisdiction in bankruptcy if he is not able to reconcile the position of the parties and if no proceedings are already pending. The matter will be decided in accordance with the so-called renvooiprocedure.
Such an interpretation of Art. 122 Fw has often been given by the courts(90) and in the literature,(91) although such a result following from the wording of Art. 122 has frequently been the subject of criticism.(92) It should be mentioned, however, that a contrary interpretation can also be found in the Dutch literature on this issue. Some authors have expressed the view that the claims contested in bankruptcy verification may be arbitrated.(93)
The interpretation of Art. 122, whereby the arbitration agreement would not be effective may lead to a division of jurisdictions if the controversies between the parties involve not only the verification disputes, but also other kinds of disputes (e.g., non-monetary claims). In such a situation, the resolution of certain issues will be referred to arbitration, while the claims for payment against the estate will be adjudicated by the court having jurisdiction in bankruptcy. In addition to that, the purpose of such a jurisdictional framework seems to have been to consolidate the adjudication of the verification disputes before the same court.(94) Yet, the court having jurisdiction in bankruptcy will not 'attract' all disputes of this kind (i.e., verification disputes): pending proceedings with respect to such claims will be continued and adjudicated by the competent authority already seized of the matter, in accordance with Art. 29 Fw. Further, it is argued that the concept of 'concentrating' the adjudication of verification disputes before the same court has been eroded by various exceptions to the rule.(95)
The question of the scope of the bankruptcy courts' jurisdiction in the United States has already been addressed. The reasoning and the arguments given when deciding on the enforcement of arbitration agreements with respect to creditors' claims are addressed infra (4.3.2.2.3).
4.3.2.2.2 Modalities of enforcement of arbitration agreements (France)
The provisions on the jurisdiction of the French courts in bankruptcy do not seem to have played a significant role with respect to the enforcement of arbitration agreements. Although the wording of Art. 174 of the Loi du 25 janvier 1985 implies broad jurisdiction of the courts in bankruptcy (Commercial Courts),(96) it has been rather restrictively interpreted by the French judiciary. Thus, this provision is interpreted so as to limit the exclusive jurisdiction only to the issues originating from (nées) insolvency proceedings,(97) or matters which have their source in the application of the provisions of the insolvency law, or where the insolvency law affects the resolution of the dispute.(98)
The prevailing view in the French literature is that the claims of ordinary bankruptcy creditors with respect to which an arbitration agreement was concluded prior to the commencement of the insolvency procedure, will be referred to arbitration if contested and the juge-commissaire concludes that he has no jurisdiction. In accordance with Art. 102 of the Loi du 25 janvier 1985, the creditor will be required to commence arbitration within two months.(99) It has also been argued that the distinction between the claims on behalf of the estate and the claims against the estate is of no relevance because the competence of another authority is provided for adjudicating the contested claims.(100)
In contrast to the abundant case law in the United States, the court decisions on the issue of the enforcement of arbitration agreements in the context of insolvency proceedings are rather rare in France. In other words, it does not seem to be a controversial issue there. The enforcement of arbitration agreements may rather be regarded as a question of the modalities of enforcement, raising no questions as to the preclusion or prevention of enforcement.
However, there is a rather significant number of French court decisions in which it is reported that the arbitral awards rendered during the insolvency procedure were the subject of challenge before the French courts. As already mentioned, these court decisions have repeatedly stressed the importance of certain principles of insolvency law which form part of domestic and international public policy.
Accordingly, it may be concluded that the provisions of the insolvency law do not 'exclude' arbitration with respect to the contested claims of ordinary creditors. However, the relevant provisions of insolvency law are to be considered and all the requirements of insolvency proceedings should be respected by the parties and the arbitrators, in particular those the violation of which represents a violation of the basic principles of insolvency law and, consequently, of public policy.(101) Otherwise, the enforceability of the award and its subsequent acceptance in the insolvency case may be jeopardized. A requirement to file a claim in insolvency proceedings
seems to be absolute. If this is not respected, it may influence the validity of the arbitrators' decision on jurisdiction.(102)
4.3.2.2.3 The discretion of the courts in bankruptcy (United States)
As already mentioned, in the United States a referral to arbitration and enforcement of arbitration agreements with respect to the creditors' claims have been decided in the context of lifting the automatic stay, irrespective of whether the arbitral proceedings were already pending or not. It seems rather appropriate to say that, with the exception of international cases, the creditors 'had an uphill battle'(103) to invoke arbitration agreements in the context of the bankruptcy procedure. The discussion of the 'conflict' between the two Acts already addressed(104) is fully applicable here as well. Whilst the discretion rule has no longer been universally accepted after the decision in Hays with respect to the claims on behalf of the estate against third parties, the rule on discretion has rarely been questioned by the US courts when deciding on the enforcement of arbitration agreements concerning creditors' claims. This has remained an almost indisputable rule even after the decision in Hays, which related to the claims on behalf of the estate against a third party. As already indicated, the Court in Hays limited its decision on the absence of discretion to non-core matters. If the reasoning is to be interpreted so as to retain discretion in the 'core' matters, it implies that it is always retained when deciding on the arbitration of creditors' claims. Such claims would always fall under the category of 'core' matters, particularly bearing in mind that deciding on the lifting of the automatic stay is expressly listed as a 'core' matter in Sect. 157(b)(2)(B). As mentioned previously, when exercising discretion the courts deciding in bankruptcy applied various approaches, whereby the parties were sometimes referred to arbitration(105) and sometimes arbitration agreements were refused effect.(106)
However, recently some decisions can be found where the court has refused to base the 'conflict' between the Federal Arbitration Act and the Bankruptcy Code 'solely on the jurisdiction nature of a bankruptcy proceeding'.(107) Similarly, the rule on discretion seems to have been doubted In re Statewide Realty Co.,(108) where the Court held, inter alia, that 'inquiry regarding conflict between the statutes should not be as broad as to swallow the policies of the Arbitration Act'.
Besides the provisions on jurisdiction as a 'source' of conflict between the relevant statutes, another issue has often been addressed in the context of the enforcement of arbitration agreements with respect to creditors' claims. In particular, it was the question whether the existence of an arbitration agreement constituted a 'cause' for granting relief from automatic stay under Sect. 362(d)(1) of the Bankruptcy Code. In the majority of decisions, a mere existence of an arbitration clause was not considered to present a 'cause' for relief, but the party moving for relief was required to 'demonstrate hardship in the event relief is not obtained'.(109)
It should be reiterated that the US courts, generally, have not held arbitration agreements to be unenforceable in the context of bankruptcy proceedings, nor have the claims of ordinary bankruptcy creditors, in principle, been held to be generally non-arbitrable. Also, it should not be concluded that arbitration agreements have always been refused effect. However, no uniformity of approaches has been suggested by various US courts, which would provide for certainty and
predictability of results. Rather, the enforcement of arbitration agreements in US bankruptcy proceedings seems to remain to be decided on a case-by-case basis.
The US courts were, generally, more inclined to enforce arbitration agreements concerning international commercial transactions when exercising discretion,(110) often relying on the decisions of the Supreme Court favouring arbitration and expanding the scope of arbitrable matters.(111) The same is true with respect to creditors' claims: there are a number of decisions reported where a trustee or a debtor-in-possession was compelled to arbitrate disputes with foreign creditors.(112) In general, arbitration was exceptionally denied in cases involving international elements.(113)
Yet, a violation of the preclusion of individual actions seems to present a reason for both denying effect to an arbitral award and refusal to refer the parties to arbitration. This seems to be so even when such a violation concerns a foreign insolvency procedure, provided that this procedure is given effect in the United States. This conclusion may be drawn from two decisions of the US courts. One is the decision taken in Victrix, which was already addressed: after effect had been given to the Swedish bankruptcy procedure under Sect. 304 of the Bankruptcy Code, the award, rendered in London against the bankrupt debtor in favour of the creditor who had ignored the bankruptcy procedure, was denied enforcement.
Another example illustrating the relevance of this principle is the decision taken in Allstate Insurance Co. v. C.J. Hughes and I.D. Barker Bond.(114) Joint provisional liquidators for the group of companies that filed a winding-up petition in the High Court of Justice in London, negotiated a Scheme of Arrangement with the creditors. Allstate, one of the creditors, voted against the arrangement with respect to each of the companies. The Scheme provided that the creditors were precluded from instituting litigation or arbitration proceedings before complying with the procedures provided to establish the claim. The provisional liquidator applied for permanent injunctive relief to the United States Bankruptcy Court, seeking to enforce the Scheme in the United States. The permanent injunction was granted under Sect. 304 of the United States Bankruptcy Code. Allstate filed an appeal against the injunction, alleging a violation of the provisions of the Federal Arbitration Act and Art. II of the 1958 New York Convention. The District Court affirmed the decision of the Bankruptcy Court, holding that it had properly exercised its discretion to stay arbitration until certain procedural steps were complied with, as provided under the Scheme. It also stressed that the provision under the Scheme was not unique and that 'all bankruptcy regimes establish procedure to prove a claim'. It was also held that 'the purpose of the FAA was not to elevate arbitration rights over litigation rights'.
5. Conclusion
From the relevant provisions of insolvency law analysed it can be concluded that the claims of ordinary, non-secured creditors are typical bankruptcy or 'core' issues. These are not matters which are only related to the bankruptcy case, but issues that are substantial for the bankruptcy case. All
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