Abstract

(Minor revision 23/07/2021) Since the onset of the COVID-19 pandemic, a topic that has garnered attention from academics and arbitration practitioners alike is the relationship between insolvency and arbitration proceedings. This is primarily due to the anticipated increase in the number of businesses that will be in financial distress and may experience solvency concerns attributable to the pandemic. Although the worlds of insolvency and arbitration are seemingly distant, a review of case law in Australia, Malaysia, and Singapore indicates that there are a number of occasions during which they regularly collide, particularly in the context of winding-up proceedings and considerations on the arbitrability of disputes. A number of procedural questions are also raised, particularly in the context of the right and capacity of a party to participate in arbitration proceedings, questions relating to the validity of the arbitration agreement, the mechanisms available in institutional rules to minimise the impact of insolvencies, as well as matters relating to the recognition and enforcement of arbitral awards. This paper attempts to navigate through these issues with reference to the insolvency and arbitration frameworks of Australia, Malaysia, and Singapore. References are also made to the institutional rules of ACICA, the AIAC, and SIAC where appropriate.

This paper is part of a series of papers on the "Overlap between Bankruptcy / Insolvency Proceedings and Arbitrations ...". More information here www.transnational-dispute-management.com/news.asp?key=1812