The remedy for non-payment of a contractual debt: arbitration or winding up? Conflicting approaches taken by the courts of the UK, Cayman Islands and the BVI

In the recent decision of Salford Estates (No.2) Ltd v Altomart Ltd [2014] EWCA 1575 Civ, the English Court of Appeal held that the mandatory stay provisions imposed by section 9 of the English Arbitration Act 1996 (Arbitration Act) do not apply to a winding up petition based on a company’s inability to pay its debt, even where the creditor’s petition relies on a disputed debt which is subject to an arbitration clause.

However, the agreement to arbitrate is not irrelevant. The Court of Appeal stressed that the courts have discretion to wind up a company under section 122(1)(f) of the Insolvency Act 1986 (Insolvency Act) and in circumstances where a disputed debt falls within the scope of an agreement to arbitrate, it would be only in wholly exceptional circumstances that the court would not stay or dismiss the petition.

This decision represents an interesting departure from earlier English decisions, where the court had held that in such circumstances, themandatory stay provisions in section 9 of the Arbitration Act are engaged, and also the trend established by the courts of the Cayman Islands and the British Virgin Islands (BVI) to retain the power to decide whether there is a genuine and substantial dispute (the test for determining whether to strike out the petition), even though the courts would not go on to resolve such dispute. The conflicting approaches raise interesting public policy issues, and there is clearly a tension between the court upholding the primacy of an agreement to arbitrate and the court’s exclusive statutory jurisdiction to determine winding up petitions.

The Recent English Decision of Salford Estates (No.2) Ltd v Altomart Ltd

In Salford Estates, Altomart was the lessee of commercial premises in Salford Shopping Centre, which was owned 1 MEALEY’S International Arbitration Report Vol. 30, #9 September 2015 by the lessor, Salford Estates; the lease agreement contained an arbitration clause. A dispute arose as to whether Altomart was required to pay certain charges under the lease agreement, and this was referred to arbitration; the arbitrator held that charges in the sum of £64,431.79 were payable. The sums due under the Award were not paid immediately, and Salford Estates presented a winding up petition on the ground that Altomart was unable to pay its debts for (1) £64,431.79 due under the Award, and (2) the further sum of £22,747.22 due relating to a later period, which was said to follow from the reasoning in the Award.

The petition was presented under section 122(f) of the Insolvency Act, which provides that a company may be wound up by the court if it is unable to pay its debts. An equivalent provision is found in section 92(d) of the Cayman Islands Companies Law (2013 Revision) and section 162 of the BVI Insolvency Act 2003. Altomart paid the sum of £64,431.79, but disputed that the further sum of £22,747.22 was payable and argued that the dispute needed to be referred to arbitration.

Altomart applied to strike out the petition on a number of grounds including that (1) the debt which was the subject of the petition was subject to a genuine dispute on substantial grounds, and (2) the petition was in any event liable to be stayed pursuant to section 9 of the Arbitration Act, which provides that:

‘‘9(1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter. … 9(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed.’’

Equivalent provisions are found in section 9 of the Cayman Islands Arbitration Law (2012 Revision) (Arbitration Law) and section 9 of the BVI Arbitration Act 2013. At first instance, Judge Bird stayed the petition, following the English decisions of Rusant Limited v Traxys Far East Limited [2013] EWHC 4083 and Halki Shipping v Sopex Oils [1997] EWCA Civ 3062.

In Rusant, Warren J had restrained the presentation of a petition based on an alleged debt, even though there was no bona fide defence: it was held that the arbitration agreement and section 9 trumped the decision he would otherwise have made to dismiss the application to restrain the petition. In Halki Shipping, the Court of Appeal held that when a claim is not admitted as being due and payable, there is a ‘‘dispute’’ for the purposes of the Arbitration Act. Therefore, unless the arbitration agreement is null and void, inoperative or incapable of being performed within section 9(4) of the Arbitration Act, the court must grant a mandatory stay of the petition in favour of arbitration proceedings.

Following this approach, a court would not be required to determine whether the debt is disputed on bona fide and substantial grounds: the mere raising of a defence or dispute would be sufficient to engage the mandatory stay provisions in section 9, and the dispute must therefore be referred to arbitration. Following Henry LJ’s approach in Halki Shipping, this would even extend to a situation where the party who is required to pay the alleged debt simply does nothing; this would be treated as a dispute which must be referred to arbitration.

On appeal, Salford Estates sought to argue that a winding up petition based on an inability to pay a debt should not be stayed pursuant to section 9 of the Arbitration Act, on the basis that a winding up petition is not ‘‘arbitrable’’, or in the alternative it is not a ‘‘claim’’ within section 9.

The Chancellor, Sir Terence Etherton, gave the leading judgment in the Court of Appeal and held that section 9 did not apply to a petition presented on the ground of an inability to pay a debt for a different reason: non-payment of a debt is only evidence of the company’s inability to pay. Furthermore, the wording of section 9(1) refers to a ‘‘claim or counterclaim’’ and the petition was not a claim for payment of the debt.

Etherton C gave three further reasons as to why section 9 did not apply to a petition based on an unpaid debt: 2 Vol. 30, #9 September 2015 MEALEY’S International Arbitration Report (1) the making of a winding up petition need not result in an order for payment of the petitioner’s debt, (2) by contrast with a ‘‘claim’’ for a debt, it is an abuse to present a winding up petition to put pressure on the company to pay a genuinely disputed debt, and (3) if the winding up petition alleges non-payment of more than one debt, and only some of those debts are subject to an agreement to arbitrate, then the mandatory stay imposed by section 9 is unworkable. Etherton C used the latter example as a reason why Parliament could not have intended to fetter the jurisdiction of the court to wind up companies in the public interest where companies are not able to pay their debts, by automatically requiring a mandatory stay of those proceedings. Ether[1]ton C distinguished cases where the relief sought in the petition was on unfair prejudice grounds, on the basis that those types of cases were essentially private disputes in relation to the affairs of a solvent company which therefore neither engaged any public policy objective of protecting the public, where a company continues to trade but is unable to pay its debts as they fall due, nor involved a class remedy for the company’s creditors.

However, the agreement to arbitrate was not irrelevant. Etherton C found that the court has a discretionary jurisdiction to stay a winding up petition pursuant to section 122(1) of the Insolvency Act, and it would be wholly exceptional to not take into account the legislative policy of the Arbitration Act in exercising this discretion. In Halki Shipping, in which the plaintiff applied under Order 14 for summary judgment relief, the court had considered that the legislative policy of section 9 was to exclude the court’s jurisdiction to give summary judgment. Etherton C held that in those circumstances, it would be anomalous for the court to conduct a summary judgment-type analysis of liability for an unadmitted debt, on which the petition is grounded, where the parties have agreed to refer any dispute relating to the disputed debt to arbitration. Etherton C held that it was correct for the court to either dismiss or stay the petition so as to compel the parties to resolve their dispute by arbitration, rather than investigate whether the debt was bona fide disputed on substantial grounds.

The main difference between the first instance decision and the appeal decision was therefore that the stay is discretionary, rather than mandatory, and the discretion arises from the Insolvency Act, rather than the Arbitration Act.

This decision was recently followed in the English decision of Eco Measure Market Exchange Ltd v Quantum Climate Services Ltd (unreported, 18 May 2015) which held that the guidance in Salford Estates made clear that the court should, save in exceptional circumstances, exercise its discretion under section 122 of the Insolvency Act to dismiss any petition where the disputed debt arises from a contract containing an arbitration clause.

Approach Taken by The Courts of the Cayman Islands and the BVI

In 2011, the Cayman court took a pro-arbitration approach in the decision of In the Matter of Times Property Holdings Limited [2011] CILR 223. A creditor petitioned to wind up the company; the company (represented by the writers) disputed the debt and argued that the petition should be stayed in favour of arbitration proceedings which were underway in Hong Kong to determine the company’s indebtedness to the company. Although Foster J was satisfied that there was a substantial dispute, he stayed the petition, his primary reason being: ‘‘it is not appropriate for this Court, even if minded to do so, to deprive the Company of putting its case and pre-judging the issue by seeking to determine the Company’s dispute of the alleged indebtedness has not real sub[1]stance. It seems to be that that question is for the arbitral tribunal in Hong Kong… .’’

Foster J commented that in circumstances where the parties have expressly agreed between them that a dispute is to be resolved in a particular forum by a particular tribunal, it was not obvious to him why they should not be held to that agreement. In reaching this decision, Foster J found the BVI decisions of Sparkasse Bregenz Bank AG: Re Associated Capital Corporation, BVI Civil Appeal (unreported, 18 June 2003) and Pioneer Freight Futures Co Ltd v Worldlink Shipping Ltd, Samoa (unreported, 1 July 2009) to be persuasive. In the alternative, Foster J held that the dispute was clearly disputed on bona fide and substantial grounds.

As discussed below, the Cayman Islands court has since moved away from the approach taken in the Times Property decision. The recent trend in both the Cayman Islands and the BVI is for the court to retain its jurisdiction to determine, in the winding up, whether there is a genuine and substantial dispute in relation to the debt, and therefore its adequacy as a basis for winding up.

The next case to consider this issue in the Cayman Islands was Re Duet Real Estate Partners 1 LP (unreported, 7 June 2011). In that case, Duet (represented by the writers) sought a declaration that there was a genuine dispute in relation to two debts and sought an injunction to restrain the presentation of a petition based on these alleged debts. The relevant loan agreement contained a London arbitration clause and Duet had commenced arbitration proceedings. Jones J reviewed the contemporaneous evidence, and found Duet’s arguments as to why there was a substantial and genuine dispute in relation to the debts to be ‘‘thoroughly disingenuous’’ and nothing more than a ‘‘disingenuous delaying tactic’’; Jones J therefore dismissed Duet’s injunction application. Jones J did not refer to the decision of Times Property in his judgment, but he clearly took the view that he was required to determine whether there was a genuine and substantial dispute, despite the existence of an agreement to arbitrate and arbitration proceedings being on foot in London.

The same approach was taken by Jones J in the later Cayman Islands decision of In The Matter of Ebullio Commodity Master Fund L.P. (unreported, 24 May 2013). In Ebullio, the petitioner relied upon non-payment of sums under shipping contracts; the company (represented by the writers) began an arbitration to determine whether there was a separate oral contract which would have meant that the sums were not payable, on the same day as the petition was presented. Jones J held that the arbitration clause and existence of the arbitration would only come into play if the court concluded that there was a bona fide dispute on substantial grounds.

Two further Cayman Islands decisions have favoured the approach of Jones J in Re Duetand Ebullio, over that of Foster J in Times Property; in both of these decisions the relevant contract, on which the alleged debt was based, contained an exclusive foreign jurisdiction clause: thus they raised similar issues.

The first decision, Re SRT Capital SPC Ltd (unreported, 22 November 2013) was decided by Foster J, in which he departed from his earlier approach in Times Property. The company argued that there was a substantial dispute in relation to the debt, but that the dispute about the alleged debt was anyway required to be determined by the courts of England as a result of an English governing law and exclusive jurisdiction clause. Foster J referred to his reasoning in Times Property, and the BVI decision of Pioneer Freight on which he had previously relied, and commented that the BVI court had clearly considered the dispute in Pioneer Freight to be exclusively one of law based entirely upon the construction of the contract concerned, which was governed by English law: there were no insolvency proceedings under[1]way and no issues of fact to be resolved. Foster J went on to comment that the circumstances in Times Property were also different and that it was ‘‘clear anyway that in that case, in which there were clearly factual issues, I gave consideration to whether the company’s grounds for disputing the alleged debt were substantial’’. Foster J concluded in Re SRT Capital that there was a substantial dispute, which must be resolved by the English courts in accordance with English law.

In Huawei Technologies v Hits Africa (unreported, 29 November 2013) Quin J expressly adopted the approach of Foster J in Re SRT Capital, and held that this was the correct test.

The most recent decision in the BVI on this point is Alexander Jacobus de Wet v Vascon Trading Ltd (unreported, 6 December 2011). Bannister J held that the court must first decide whether, on the evidence before it, there is a dispute relating to the debt. If the evidence discloses no grounds for challenging the debt, as was the situation in that case, then it is irrelevant that there may be an arbitration clause. Bannister J departed from the approach he had previously taken in Pioneer Freight, in which he had declined to decide whether there was a genuine and substantial dispute where the contract was governed by a foreign law and exclusive jurisdiction clause.

What approach should be followed in the future?

Winding up is a statutory power which essentially ends the life of a company. It allows for the realization and distribution of a company’s assets to discharge its debts, and the procedure is inherently collective in nature. In contrast with this, arbitration is a private dispute resolution mechanism through which the parties are bound to resolve any dispute between them. There is clearly a tension between the court’s statutory power to wind up a company based on a company’s inability to pay a debt, and the contractual agreement by a party to arbitrate any dispute in relation to that debt with the company.

In the Cayman Islands and the BVI, at present, the court’s power to wind up will generally trump the primacy of arbitration agreements. The courts of the Cayman Islands and the BVI have latterly taken the approach that the arbitration clause relates only to the underlying contract, and its existence does not oust or otherwise affect the court’s exclusive insolvency juris[1]diction. Where the petition to wind up based on an unpaid contractual debt is disputed, the court can only wind up the company once it has determined that the dispute is not ‘‘genuine and substantial’’: if it finds that there is a genuine and substantial dispute in relation to the debt, then it will not go on to resolve that dispute in deference to the arbitration agreement. However, if the court finds that there is no ‘‘genuine and substantial’’ dispute, it will proceed to wind the company up.

The main arguments for this approach are that the winding up of insolvent companies, which are unable to pay their debts as they fall due, is in the public interest, and that the legislative intent behind section 9 of the Arbitration Act would not have intended private parties being able to prevent the hearing of a winding up petition, merely because of the existence of an arbitration clause. This approach also certainly meets a practical concern that arbitration agreements could otherwise be used to delay or frustrate appropriate substantive relief being granted where it is appropriate, or could even be used as a ruse to avoid winding up petitions being brought against companies which failed to pay their debts on time.

However, this approach contains an apparent flaw: in determining whether the debt is properly disputed, the court must essentially undertake a form of merits-based assessment of the dispute, which is arguably outside of the court’s jurisdiction, as the parties have agreed that any dispute in relation to the debt should be resolved by arbitration. This approach of determining whether there is indeed a ‘‘genuine and substantial’’ dispute therefore runs counter to the policy of giving absolute primacy to arbitration agreements, via the UNCITRAL Model Law which has been adopted in the UK, Cay[1]man Islands and the BVI (amongst many others). The policy behind the UNCITRAL Model Law is reflected in a report to the UNCITRAL Commission which explains the policy of this provision in these terms:

‘‘Article 8(1) [section 9 of the Arbitration Act and Arbitration Law] deals with an important negative effect of an arbitration agreement. The agreement to submit a certain matter to arbitration means that this matter shall not be heard and decided upon by any court, irrespective of whether this exclusion is expressed in the agreement.’’

In our view, the approach in Salford Estates seeks to bridge the gap between upholding the primacy of the agreement to arbitrate, while allowing the court to retain its the discretion to wind up a company in wholly exceptional circumstances, despite the existence of an arbitration agreement. The main risk of this approach is, at discussed above, that arbitration agreements will be used as a ruse to delay or frustrate winding up petitions. This however must be counterbalanced with the alternative risk, that if the courts do not exercise their discretion to wind up companies in accordance with the legislative policy of the UNCITRAL Model Law, parties to arbitration agreements might be encouraged to present a winding up petition as a standard tactic to bye-pass an agreed dispute resolution mechanism. This would in turn apply significant pressure on the party defending the debt to immediately pay up, or face the burden, often at short notice, to satisfy the court that the debt is bona fide disputed on substantial grounds. Such an outcome would be entirely contrary to the parties’ agreement to arbitrate, and the legislative policy of the UNCITRAL Model Law.

It has yet to be seen what approach will be taken by the Cayman Islands and BVI courts following the recent English decision of Salford Estates. English authorities, while highly persuasive in the offshore courts, are not strictly binding. However, in light of the recent English decision, it seems highly unlikely that the courts in the Cayman Islands or the BVI would take the approach that a petition must be stayed on the basis that the mandatory stay provisions in section 9 are engaged. However, interestingly, the corresponding provisions in the Cayman Islands and the BVI are arguably broader than section 9 of the Arbitration Act, as they do not contain the wording ‘‘claim or counterclaim’’, which was relied upon by Etherton C as one of the reasons to dis-apply section 9. An argument could certainly be made in this regard, but a plaintiff would still need to address all of the other reasons given by Etherton C as to why section 9 does not apply to a petition based on an unpaid debt.

In our view, the courts of the Cayman Islands and the BVI should be persuaded in the future to follow the approach in Salford Estates, to exercise their discretionary powers to stay a winding up petition in order to uphold the parties’ bargain to arbitrate. Arbitration practitioners would no doubt welcome this approach, which would, in practice, prevent the courts adjudicating any aspect of disputes which should be resolved through arbitration.

Originally published by International Arbitration Report, September 2015