Insolvency and Arbitration_an article by Matthew Crawford, Bankside Chambers

During the RITANZ conference in May, one of the panels[1] explored the ways in which insolvency disputes might voluntarily be determined by an alternative dispute resolution process following an insolvency event.  A related and important issue is the extent to which parties may be forced to have insolvency related disputes determined by, for example, arbitration.

The issue can arise because a relevant contract or the company’s constitutional documents may contain an arbitration agreement.  These arrangements can impact upon both the right to apply for a liquidation order as well as disputes over provable debts.   In at least one case discussed below, even administrative actions taken by the liquidator can be subject to compulsory arbitral oversight.  The topic has attracted more judicial interest abroad than in New Zealand, for now.

Read the article here

Matthew Crawford Bio

Lessons from Lehman: the perils and “arrogance” of cross-border insolvency

Members who attended the RITANZ Annual Conference in Auckland this year will have enjoyed a fascinating session on the Lehman collapse and a retrospective look at the causes of this and whether anything has positively changed in our approach to cross border insolvency.

The NBR attended this session and have produced the following article flowing from that discussion:

Lessons from Lehman – by Reweti Kohere, NBR

Depositor Protection – Submissions sought

RITANZ recently met with the Treasurer to discuss Phase 2 of the Reserve Bank Act, in particular whether NZ should introduce Depositor Preference or a Depositor Insurance Scheme, or a combination on both into the Reserve Bank Act. They are calling for public submissions and RITANZ is currently preparing a written submission in this regard.

Please feel free to send us your comments and feedback so that we can incorporate your views into our report.

The full Phase 2 Consultation Document is available here to read.

Phase 2 Consultation Document

 

Update – Insolvency set off PPSA Hamersley v Forge

 

Members who attended the RITANZ Annual Conference in Auckland this year may recall Steve Flynn’s presentation strongly questioning the outcome in the Western Australian case of Hamersley v Forge, which involved the important issue of the inter-relationship between insolvency set off and PPSA. Steve’s subsequent article can be found at (2018) 29 JBFLP 175.

The Western Australian Court of Appeal has now overturned the lower court decision – a succinct case note on the appeal can be found at:

http://www.chapmantripp.com/publications/update-integrity-of-set-off-rights-restored