The interplay between insolvency proceedings and arbitration clauses has been a longstanding dilemma that has attracted much legal debate. Indeed, the question of whether a winding-up petition, or the arbitration clause that the parties have contracted into should take priority, is not an easy question to answer, given the conflicting policy considerations in the statutory insolvency regime and the privately negotiated arbitration process.
Insolvency proceedings is a collective statutory proceeding, involving the public centralisation of disputes so as to achieve economic efficiency and optimal returns for all creditors in an equitable, transparent and predictable manner. As such, the Court has the supervisory power to direct how the proceedings shall be conducted. In contrast, arbitration is a party autonomy-oriented, private and confidential process. The contracted parties are free to decide the procedures of the arbitration proceedings to their mutual benefit and the results would only be binding on them.
A. An Overview of the Approach Taken by the Court
The Traditional Approach – the Triable Issue Threshold
Traditionally, if a winding up petition has been presented against a debtor company, the debtor company must show a “bona fide dispute of the debt on substantial grounds” rather than mere assertions, for the Court to grant a stay of the winding up petition in favour of arbitration. The rationale is that it would be a futile requisite for the petitioning creditor to first obtain an arbitral award when there is in fact no genuine dispute on the petition debt. The existence of an arbitration clause or the commencement of arbitration does not by itself prevent the Court from considering whether there is a bona fide dispute of substance, hence there is no automatic stay in favour of arbitration. (Re Sinom (Hong Kong) Ltd. [2009] HKCU 1203; HCMP 73/2009)
The Lasmos Approach – the Prima Facie Threshold
A new approach was introduced in the English case of Salford Estates (No 2) Ltd v Altomart Ltd. (No 2) [2014] EWCA CIV 1575, which was followed by Hon Harris J in Lasmos Ltd v Southwest Pacific Bauxite (HK) Ltd [2018] HKCFI 426; HCCW 277/2017 (“Lasmos”): A winding up petition should “generally be dismissed” if:-
- a debtor company disputes the debt relied on by the petitioning creditor;
- the contract under which the debt is alleged to arise contains an arbitration clause that covers any dispute relating to the debt; and
- the debtor company takes the steps required under the arbitration clause to commence the contractually mandated dispute resolution process.
The justification of this approach is to uphold the legislative intent to support party autonomy and to compel the parties to resolve their dispute in accordance with their chosen dispute resolution method. It also guards against the Court engaging in “summary judgment type” analysis. However, the Lasmos approach is not without criticism.
B. An Overview of the Recent Case Law
In But Ka Chon v Interactive Brokers LLC [2019] HKCA 873; CACV 611/2018 (“But Ka Chon”), while it was unnecessary for the Court of Appeal (“CA”) to determine the appropriateness of the Lasmos approach, the CA, in obiter, noted its reservations about the Lasmos approach which substantially curtails the statutory right under the insolvency regime for the creditors to petition for winding up.
In the same year, though the CA in Sit Kwong Lam v Petrolimex Singapore Pte Ltd [2019] HKCA 1220; CACV 215/2019 (“Sit Kwong Lam”) did not make further remarks on the obiter observations in But Ka Chon, they made a number of clarifications to discourage debtor companies from “making opportunistic attempts to invoke the Lasmos approach in future”.
Last year, the Court of Final Appeal (“CFA”) in Re Guy Kwok-Hung Lam [2023] HKCFA 9; FACV 13/2022 (“Re Guy Lam”) unanimously upheld the majority decision of the CA that, in an ordinary case where the dispute of the petition debt is subject to a foreign exclusive jurisdiction clause (“EJC”), the Court should give effect to the EJC and decline insolvency jurisdiction unless there are countervailing factors, such as the risk of insolvency affecting third parties and a dispute that borders on the frivolous or abuse of process. However, the CFA expressly left open the issue of whether the same approach would have applied to an arbitration clause.
The opportunity shortly came in the case of Re Simplicity & Vogue Retailing (HK) Co., Limited [2023] HKCFI 1443; HCCW 457/2022 (“Re Simplicity”) before Hon Linda Chan J. She took the view that Re Guy Lam is only applicable to EJC but not an arbitration clause. The requirements in the Lasmos approach, and the principles in But Ka Chon and Sit Kwong Lam should be considered. However, she cautioned against the mechanistic application and emphasised that the mere existence of an arbitration clause does not fetter the Court’s discretion to consider the merits of the defence raised by the debtor company. After considering the debtor company’s grounds of opposition, the Court exercised its discretion and made the usual winding up order against the debtor company. This decision is currently pending appeal.
Soon afterwards, Hon Harris J had another opportunity to consider the approach in Re Shandong Chenming Paper Holdings Limited [2023] HKCFI 2065; HCCW 175/2017 (“Re Shandong”). In this case, the debtor company advanced a cross-claim of value greater than the petition debt in an arbitration against the petitioner. Hon Harris J did not follow Re Simplicity. He took the view that both the judgments of the majority of the CA and the CFA in Re Guy Lam are that the Lasmos approach applies to arbitrations just as it has been expressly found to apply to EJCs, and that there is no difference in the applicable principles whether the disputed petition debt or the cross-claim was the subject of an EJC or arbitration clause. Hon Harris J considered that the petition in question should be stayed pending arbitration, and his decision is currently also pending appeal.
Thereafter, the same issue arose in Sun Entertainment Culture Limited v Inversion Productions Limited [2023] HKCFI 2400; HCCW 444/2022. While the Court recognised the distinction in the approach adopted by Re Simplicity and Re Shandong on the application of Re Guy Lam respectively, it was not necessary for the Court to resolve the inconsistency in this case, as the defence raised by the debtor company was considered to be frivolous and an abuse of process. Even if Re Shandong is followed and Re Guy Lam is applied to an arbitration provision, the frivolous nature of the defence would be a recognised “countervailing factor” against staying or dismissing the petition. As such, the Court made a winding up order against the debtor company.
C. Clarification from the Appellate Court
As one can tell from the recent cases, the existing state of the law in this area is still uncertain and in flux. This is the reason why Hon Harris J recently granted the petitioner in Re Shandong leave to appeal, and considered there to be merit in hearing this appeal at the same time as the appeal of Re Simplicity in February 2024. Hon Harris J opined that “it is highly undesirable that there are conflicting first instance decisions”, and that “it is also desirable that the Court of Appeal has the opportunity to clarify the application in Hong Kong of the Lasmos approach”, which has recently been approved by the UK Supreme Court and Privy Council. (See Re Shandong Chenming Paper Holdings Limited [2023] HKCFI 2731; HCCW 175/2017)
Hopefully, upon judgment being delivered, the Appellate Court will soon be settling the prevailing uncertainty on the applicable approach in dealing with arbitration clauses in winding up proceedings. Stay tuned for further updates.
Postscript (I): The recent Court of Appeal decisions in (1) Re Simplicity & Vogue Retailing (HK) Co Ltd [2024] HKCA 299, and (2) Arjowiggins HKK 2 Ltd v Shandong Chenming Paper Holdings Ltd [2024] HKCA 352
The appeal of Re Simplicity and the appeal of Re Shandong were heard separately on 29 February 2024 and 21 March 2024, but before the same Court of Appeal (Hon Kwan VP, Barma JA and G Lam JA) (“CA”). The CA recently handed down their judgments on the same day, 23 April 2024.
(1) Re Simplicity & Vogue Retailing (HK) Co Ltd [2024] HKCA 299
In Re Simplicity, the CA held that the approach in Re Guy Lam should be applied by analogy to the situation in winding-up proceedings where there is an agreement between the parties to refer their dispute relating to the petition debt to arbitration:-
- The CA considered that the controversy should be laid to rest in light of the reasoning of the CFA in Re Guy Lam, and that the cogent reasons mentioned by the CA in Re Guy Lam apply equally to arbitration clauses. The effect of arbitration clauses on insolvency petitions is of central importance to the reasoning of the majority of the CA and of the CFA in Re Guy Lam.
- “…the court is concerned with an exercise of discretion, whether it be the exercise of its jurisdiction to make a bankruptcy or winding-up order upon being satisfied with the proof of the petitioning debt, or in making a determination whether there is a bona fide dispute of the debt on substantial grounds, or in ordering the petition to be dismissed or stayed.”
- “The approach of the court in exercising its discretion is “multi-factorial”. The public policy of the legislative scheme for the court’s insolvency jurisdiction may be prominent where the grounds for disputing the debt are obviously insubstantial. The significance of this public policy may be much diminished where there is no supporting creditor and no evidence of a creditor community at risk. The “strong reasons” or “wholly exceptional circumstances” test should not “obscure the range of considerations relevant to the court’s discretion”. The “countervailing factors” mentioned being “the risk of insolvency affecting third parties and a dispute that borders on the frivolous or abuse of process” are just instances where the court may exercise its discretion not to hold the parties to the agreed dispute resolution mechanism. By this approach, the court retains flexibility to deal with the case as the circumstances require.”
- “A genuine intention to arbitrate is fundamental to engaging the public policy in holding the parties to their agreement to arbitrate, and hence must be demonstrated by the debtor… It is not onerous to demonstrate that there is a genuine intention to arbitrate. To deter a debtor from merely raising an arbitration clause as a tactical move with no genuine intention to arbitrate, it is sensible for the court to require itself to be satisfied of the genuine intention so as to hold the parties to their agreed dispute resolution mechanism. The courts have emphasized that the steps required under the arbitration clause to commence the process may include preliminary stages such as mediation. And even if no steps at all were taken, the court could still exercise its discretion in an appropriate case to grant a short adjournment for the debtor to commence arbitration and require an undertaking from him to proceed with the arbitration with all due dispatch. If no progress is made during the adjournment, the court could consider lifting the stay and proceed to exercise its jurisdiction on the petition debt.”
(2) Arjowiggins HKK 2 Ltd v Shandong Chenming Paper Holdings Ltd [2024] HKCA 352
In Re Shandong, the CA held that not only is the approach in Re Guy Lam applicable to arbitrable petition debt, it is also applicable to arbitrable set-off or pure cross-claims:-
- The CA emphasized that in the winding-up context, disputed petition debts, set-offs and cross-claims are dealt with no differently when raised in opposition to a winding-up petition.
- “In these cases with claims in both directions, the question arises whether the petitioner is a net creditor having an interest in having the debtor wound up… The proper approach to the resolution of this question… is clearly a matter to which a forum agreement between the parties (if one exists) is likely to be relevant.”
- “Where the cross-claim is subject to an arbitration clause… for the court to enter into its merits and determine that there is no genuine and serious cross-claim, or one that is of substance, would be against the parties’ agreement. Such a determination… would be akin to giving summary judgment in favour of the defendant and against the claimant in respect of the cross-claim.”
- “…where the parties agreed to have all the disputes under the agreement giving rise to the cross-claim determined in another forum, the public policy in holding parties to their agreements comes into play, just as it does in a disputed debt”
Given the importance of legal certainty, it is a promising development that the applicability of Re Guy Lam to arbitrable claims and cross-claims has been clarified.
Postscript (II): (1) The recent Privy Council’s decision in Sian Participation Corp (In Liquidation) v. Halimeda International Ltd [2024] UKPC 16, and (2) the recent CFI’s decision in Re Mega Gold and Re Man Chun Sing Matthew (heard together in [2024] HKCFI 2286)
(1) The recent Privy Council’s decision in Sian Participation Corp (In Liquidation) v. Halimeda International Ltd [2024] UKPC 16
In the Privy Council’s decision in Sian Participation Corp on 19 June 2024, Salford Estates was held to be “wrongly decided” and it was held that as a matter of BVI law and English law, “the correct test for the court to apply to the exercise of its discretion to make an order for the liquidation of a company where the debt on which the application is based is subject to an arbitration agreement or an exclusive jurisdiction clause and is said to be disputed is whether the debt is disputed on genuine and substantial grounds.”:-
- “The Board considers that Salford Estates, and the cases which have followed it, were wrong to introduce a discretionary stay of creditors’ petitions (or, in the BVI, liquidation applications) where an insubstantial dispute about the creditor’s debt is raised between parties to an arbitration agreement.”
- “The contractual obligation embodied in the typical arbitration agreement is to refer disputes to arbitration for resolution. The negative obligation is not to have them resolved by any court process. Thus the presentation of a winding up petition (or similar liquidation application) does not offend the negative obligation at all. It is simply not something which the creditor has agreed not to do.”
- “None of the general objectives of arbitration legislation (efficiency, party autonomy, pacta sunt servanda and non-interference by the courts) are offended by allowing a winding up to be ordered where the creditor’s unpaid debt is not genuinely disputed on substantial grounds. To require the creditor to go through an arbitration where there is no genuine or substantial dispute as the prelude to seeking a liquidation just adds delay, trouble and expense for no good purpose. Party autonomy and pacta sunt servanda are not offended because seeking a liquidation is not something which the creditor has promised not to do. And by ordering a liquidation the court is not resolving anything about the debt, nor interfering with the resolution of any dispute about it.”
(2) The recent CFI’s decision in Re Mega Gold and Re Man Chun Sing Matthew (heard together in [2024] HKCFI 2286)
In Re Mega Gold, the Court of First Instance held that it would follow the reasoning in Re Guy Lam (CFA) and also in Re Simplicity (CA) as a matter of stare decisis and given the analysis provided therein:-
- “…It is a rather high threshold that one has to overcome in order to establish instances which are “frivolous” or amount to an “abuse of process” and the questions involved are always fact-specific. In the normal course of events, it is necessary to show that the claim or defence is bound to fail and hence does not warrant a chance to be further investigated at trial. In the present case, in order to determine if the threshold is met, the court should only conduct a preliminary assessment on whether it is a plain and obvious case that the dispute is “frivolous” or amounts to an “abuse of process” without attempting to undergo a mini-trial on affidavit evidence. Unless a plain and obvious case is shown, the court should be more ready to decline to exercise its insolvency jurisdiction to determine the dispute, leaving it to be resolved by the agreed arbitration mechanism and with regard to the public policy in holding the parties to their agreement. Of course, as mentioned above, the court is not straitjacketed by any particular policies and interests and may take into account other relevant factors in making its decision in this regard.”
- “Finally, in relation to the Privy Council’s reasoning in Sian, I would only venture to add that there is no hard and fast rule on whether a winding-up or bankruptcy order would or would not necessarily “offend” the parties’ arbitration agreement. This essentially turns on the basis of the underlying debt for the purpose of the petition and whether the debt and the alleged dispute fall within the scope of the arbitration agreement. For example, if the debt arises from a sum payable under the agreement containing an arbitration clause and the debtor raises a dispute over creditor’s performance of the terms of the agreement, there is no reason why the debt and also the dispute, in light of their nature and substance, would not constitute a “matter” which should be subject to the arbitration agreement.”
While the Court of First Instance did not follow the approach taken by the Privy Council in Sian Participation Corp and adopted the Hong Kong Court’s approach in Re Guy Lam (CFA) and Re Simplicity (CA), it remains to be seen the possibility of a more unified principle on this issue across the common law jurisdictions in times to come.
