Abstract
Alternative Dispute Resolution (ADR) mechanisms, particularly mediation and arbitration, play a pivotal role in resolving commercial disputes in England and Wales. ADR offers a range of processes designed to resolve disputes without or before resorting to litigation, and its use has become increasingly widespread in the commercial sector. The English legal system has long recognised the value of ADR, leading to a well-established albeit not always homogeneous framework supported by statutory instruments, judicial decisions, and institutional regulations.
The interaction between arbitration and insolvency in England and Wales reflects a careful and well-struck balancing act. Facilitative ADR mechanisms, such as mediation and conciliation, are more likely to yield positive results in negotiations aimed at agreeing on a restructuring strategy. Concurrently, arbitration (and the ensuing binding award) can be useful for resolving individual claims within insolvency proceedings, potentially aiding in the resolution of broader collective issues. In cross-border disputes, arbitration has particularly attractive features, most notably the relative ease with which awards can be enforced globally via the New York Convention.
The enforceability of arbitration agreements in English law is supported by a pro-arbitration stance but is tempered in insolvency proceedings to protect the collective interests of creditors. Public policy considerations and the need to safeguard insolvency processes constrain the arbitrability of disputes, as highlighted in the Privy Council’s decision in Sian Participation. Overall, courts ensure that arbitration does not undermine the effective and fair administration of insolvency.
The interaction between arbitration and insolvency in England and Wales reflects a careful and well-struck balancing act. Facilitative ADR mechanisms, such as mediation and conciliation, are more likely to yield positive results in negotiations aimed at agreeing on a restructuring strategy. Concurrently, arbitration (and the ensuing binding award) can be useful for resolving individual claims within insolvency proceedings, potentially aiding in the resolution of broader collective issues. In cross-border disputes, arbitration has particularly attractive features, most notably the relative ease with which awards can be enforced globally via the New York Convention.
The enforceability of arbitration agreements in English law is supported by a pro-arbitration stance but is tempered in insolvency proceedings to protect the collective interests of creditors. Public policy considerations and the need to safeguard insolvency processes constrain the arbitrability of disputes, as highlighted in the Privy Council’s decision in Sian Participation. Overall, courts ensure that arbitration does not undermine the effective and fair administration of insolvency.
| Original language | English |
|---|---|
| Title of host publication | ADR in the Enforcement of Security Interests and Insolvency |
| Editors | Orkun Akseli, Teresa Rodriguez de las Heras Ballell |
| Publisher | Brill |
| Publication status | Submitted - 19 Dec 2024 |
Publication series
| Name | Ius Comparatum |
|---|---|
| Publisher | Brill |
Keywords
- insolvency
- mediation
- arbitration
- security interests
