Hon Paul Heath QC and Dr Anna Kirk have recently returned to New Zealand after speaking at INSOL’s Alternative Dispute Resolution (ADR) Colloquium in London on the use of arbitration in insolvency disputes. INSOL International is a world-wide federation of national associations of accountants and lawyers who specialise in turnaround and insolvency.

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Paul and Anna spoke on a panel with Dame Elizabeth Gloster (former Court of Appeal Judge, England), Kelly Conlan (Kroll, US) and Professor Stefan Madaus (Martin Luther University, Germany) about the current and potential role of arbitration in resolving insolvency-related disputes.

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The discussion explored the use of arbitration and other ADR mechanisms in both a domestic and cross-border insolvency context. A mediation panel, including Ken Feinberg (Special Master of the 9/11 Victim Compensation Fund) and Justice AK Sikri (former Judge of Supreme Court of India), also spoke.  

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Participants then broke into smaller discussion groups to consider specific arbitration or mediation issues and report back to the wider group. The discussion will feed into a broader project being undertaken by INSOL on ADR and Insolvency chaired by Paul and Felicity Toube QC (London). INSOL’s ADR project seeks to promote and foster the use of all forms of ADR in insolvency.

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In 2020, Paul and Anna wrote a Special Report for INSOL on the arbitrability of insolvency disputes (see Resources opposite). Many jurisdictions now enforce arbitration clauses to resolve commercial and factual disputes involving insolvent companies. However, the use of arbitration to resolve “core” or “pure” insolvency issues remains controversial.

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The paper explores the arbitrability of such disputes, arguing that arbitration may be an appropriate and efficient option to resolve certain insolvency disputes where there is no underlying policy rationale against arbitration.

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In the current economic environment, questions around the arbitrability of insolvency disputes are arising more frequently in the courts. As the jurisprudence continues to expand, INSOL’s work in this area is more important than ever.

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The ADR Colloquium in London was part of INSOL’s Annual Global Insolvency Conference attended by practitioners from all over the world. There was a strong representation from New Zealand at the conference and the ADR Colloquium.