During the RITANZ conference in May, one of the panels 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.