British Virgin Islands: Arbitration Agreements And Insolvency Proceedings

The British Virgin Islands (BVI) Court tightens up on creditors raising spurious disputes and relying on arbitration clauses to avoid insolvency.

There has been a recent trend in the BVI whereby debtor companies have sought to identify what appear to be spurious disputes and then rely upon arbitration clauses in order to strike out or stay winding up proceedings. While this could be regarded as an attempt to capitalise on the wider global trend towards giving absolute primacy to arbitration agreements the tactic is often deployed to frustrate creditors legitimately seeking to wind up insolvency companies and buy time for debtors.

In two key recent decisions, the Eastern Caribbean Court of Appeal (the CA) examined attempts by debtors to rely on the mandatory stay provisions in the BVI’s arbitration legislation and avoid liquidation. On both occasions they came down decisively against the debtor companies who were unable to show a substantive dispute to the debt.

Winding-up proceedings are collective in nature and the CA confirmed that they are not “an action” under the new BVI Arbitration Act 2013 and thus attract an automatic stay simply because a dispute had been raised by the debtor.

Importantly, the decision signalled a move away from the English position, a creditor would not be required to show ‘exceptional circumstances’ for the Court to exercise its discretion to wind-up a company in the face of an arbitration clause. The Court will exercise its discretion based on whether there is a dispute based on genuine and substantive grounds. In a welcome move for lenders and creditors, the CA has brought clarity to the position and closed the door on a potentially abusive practice.

The need for a substantial dispute

In C-Mobile Services Ltd v Huawei Technologies Co Limited (BVIHCMAP 2014/0006 and BVIHCMAP 2014/0017) the respondent company sought to wind up C-Mobile, a mobile telecommunications operator in the Ivory Coast, Gambia and formerly Liberia in Africa and incorporated in the BVI, on the basis of a debt arising under a supply contract. After a statutory demand had been served, C-Mobile applied to set this aside on the mandatory ground that the debt was a substantial dispute as to whether the debt is owing or due. One of the asserted grounds of dispute was the existence of an arbitration clause in the supply contract. Crucially, however, it did not seek to set aside the statutory demand in the alternative on the discretionary ground with allows the court to set aside a statutory demand if it is satisfied that substantial injustice would otherwise be caused.

The set aside application was subsequently dismissed, the judge at first instance (JFI) applying the well-known Sparkasse1 test and finding that there was no substance to the alleged grounds of dispute. After Huawei filed an originating application to appoint liquidators, C-Mobile then applied to stay the winding up proceedings under section 6(2) of the (now repealed) Arbitration Ordinance2, relying again on the arbitration clause in the supply contract. At the hearing of the stay application, the JFI dismissed the application finding inter alia that winding up proceedings were not a matter “agreed to be referred” under the arbitration clause and, as such, winding up proceedings fell outside the scope of the arbitration clause.

Mandatory or discretionary stay?

On appeal, the emotive thrust of C-Mobile’s argument was that it was entirely wrong for Huawei to by-pass the parties’ chosen method of dispute resolution and seek to wind up the company. In this regard it placed heavy reliance on the English Court of Appeal case of Salford Estates (No.2) Ltd v Altomart Ltd (No.2) [2015] 3 WLR 491. In that case, the Chancellor had held that while winding up proceedings are “legal proceedings” within the definition in section 82 of the (English) Arbitration Act 1996, the mandatory stay provisions at section 9(1) did not apply to a winding up petition where the ground of the petition is that the company is unable to pay its debts.3 However, crucially, the Chancellor went on to say, in relation to the court’s wide discretionary power to make a winding up order or not, it was entirely appropriate that the court should, save in wholly exceptional circumstances, exercise its discretion consistently with the legislative policy embodied in the 1996 Act. The Chancellor had therefore concluded that the court at first instance had been right to either dismiss of stay the winding up petition in order to compel the parties to resolve their dispute over the debt by arbitration.

While the CA was in “full agreement” with the views expressed by the Chancellor in Salford Estates it made three material observations in respect of the case:

1. The arbitration clause in the supply contract was confined to ‘disputes arising out of or in connection with the formation, construction and performance of this contract’, and thus considerably narrower in scope to the arbitration clause relied upon in Salford Estates (which covered ‘any dispute or difference arising between the Lessor and the Lessee as to their respective tights, duties or obligations or as to any other matter arising out of or in connection with this underlease’)
2. The court had already adjudicated on the question as to whether the debt is disputed on substantial grounds and had found that it was not. In this regard, when the company had applied to set aside the statutory demand it had done so on the mandatory ground set out at section 157(1) of the Insolvency Act 2003 and not the discretionary ground set out at section 157(2).
3. Arbitration proceedings which had been commenced by C-Mobile were no longer afoot.

The upshot of these material observations was that the CA agreed with the JFI’s conclusion that the “dispute” fell outside the arbitration clause and therefore there was no basis for compelling the parties to resolve their dispute by their chosen method. The appeal was accordingly dismissed.

Interfacing with the new BVI Arbitration Act

Less than two months after handing down its judgments in C-Mobile the CA revisited the issue of interface between arbitration clauses and winding up proceedings in Jinpeng Group Limited v Peak Hotels and Resorts Limited (BVIHCMAP 2014/0025 and BVIHCMAP 2015/0003). The contextual background in that case was as follows: On 18 September 2014 the Appellant filed an originating application to appoint liquidators over the Respondent on the basis that it was both a present and prospective creditor, and an ordinary application to appoint joint provisional liquidators (JPLs). In response the Respondent filed an ordinary application for an order striking out the originating application. On 25 and 26 September 2014 the Appellant’s ordinary application was heard and the JFI appointed JPLs. Shortly thereafter the JFI heard the strike application. At the conclusion of the hearing the JFI concluded that the debt was disputed and accordingly struck out the Originating Application and ordered the discharge of the JLPs. Since the JFI decided there was no substantial dispute he did not have to consider the respondent’s alternative application to stay the proceedings for arbitration.

On appeal the CA held that the JFI failed to correctly apply the Sparkasse test (ie whether the debt is disputed on genuine and substantial grounds) and instead applied a test with a lower standard. Having reached this conclusion, it was necessary for the CA to consider the issue concerning the effect of arbitration clauses in the underlying documents upon which the debt was founded.

The material difference between the Jinpeng and C-Mobile was that in the former the “dispute” was covered by the relevant arbitration clauses. Moreover, the Jinpeng case fell to be determined under section 18(1) of the Arbitration Act 2013; that Act having come into effect from 1 October 2014. Section 18(1) of the Arbitration Act 2013 covers all disputes that are the subject of an arbitration agreement between the parties. That section provides:

“A court before which an action is brought in a matter which is the subject of an arbitration agreement, shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.”

Collective proceedings

The CA observed that even though the application to wind up had been brought on the just and equitable ground alleging misconduct, it was still a creditor’s application seeking a collective remedy on behalf of the applicant creditor and all the other creditors of the respondent company (a point emphasised by Pereira CJ in CMobile).

In this regard it was distinct from a claim by the appellant to recover a debt from the respondent which would be a dispute between contracting parties. As winding up proceedings are not an “action” covered by arbitration clauses in agreements (designed to resolve disputes between contracting parties) or section 18(1) of the Arbitration Act 2013, the court should not grant an automatic stay of the application just because the respondent has raised a dispute over the appellant’s status (i.e. as a creditor) to apply for a winding up order.

Exceptional circumstances or a substantive dispute?

The CA confirmed, however, that this was not the end of the matter since the existence of an arbitration clause was relevant to the question of how the court should exercise its discretion to wind up. In this regard the CA clearly rejected the English law requirement (following Salford Estates) that a creditor should have to prove exceptional circumstances to invite the court to exercise its discretion to make a winding up order. The reason being, that under BVI law, the court’s statutory jurisdiction to wind up a company is based on the latter’s inability to pay its debts as they fall due unless the debt is disputed on genuine and substantial grounds. The CA commented that this principle, “is too firmly a part of BVI law to now require a creditor exercising the statutory right belonging to all the creditors of the company to apply to wind up the company, to prove exceptional circumstances to establish his status to apply.” The position is, therefore, that the appellant has to show the dispute is not on genuine and substantial grounds and leave it to the court to exercise its discretion under section 162 on the usual basis.

The effect of these decisions is to curtail the ability of debtor companies from relying on arbitration clauses to defeat applications to appoint liquidators in the BVI. In doing so the CA has delivered a welcome blow against the practice of companies raising spurious disputes and hiding behind arbitration clauses to defeat winding up proceedings.

Andrew Thorp and Mungo Lowe from Harneys successfully represented Huawei Technologies in their appeal and continue to represent creditor interests in Jinpeng.

Harneys remains the only law firm with BVI and Cayman Islands capability on the ground in Africa and further highlights the market leading expertise that Harneys has in dealing with Africa related matters. It is one of a number of significant Africa related matters that Harneys advised on during the course of 2015.