Au cours de l'arbitrage opposant la demanderesse, une société barbadienne, et la défenderesse, une société italienne, cette dernière a été mise en liquidation à la suite d'une réunion de ses actionnaires. Un tribunal italien a ensuite ordonné l'ouverture d'une procédure de faillite (fallimento) visant la défenderesse et a nommé un liquidateur (A) et un juriste (B) chargé d'aider ce dernier à gérer les questions soulevées par l'arbitrage. Dans sa sentence finale, le tribunal arbitral a examiné en premier lieu les effets du jugement de fallimento.

'14. . . . We have received extensive and helpful written submissions both from [B] and from [Claimant]'s representatives as to the effect of [Respondent]'s fallimento on the arbitration, having regard to the provisions of Italian law and the Insolvency Regulation [Council Regulation No. 1346/2000/EC].

15. [B] submits that as a matter of Italian law, in particular Art. 52 of the Bankruptcy Law (lege fallimentare), the arbitration cannot proceed in any respect, either as regards [Claimant]'s claim or [Respondent]'s counterclaim, and that all disputes between the parties fall to be decided by the Bankruptcy Court [which issued the bankruptcy order]. [B] submits that the arbitral tribunal is bound to give effect to Italian law, having regard in particular to Articles 4 and 17 of the Insolvency Regulation, by staying all further proceedings in the arbitration.

16. [Counsel for Claimant] accept that the effect of Article 52 is that all monetary claims against a company in fallimento must be brought before and dealt with exclusively by the Bankruptcy Court as part of the process of liquidation. However, they contend that the same does not apply to non-monetary claims against the company; and they submit that the company (and the liquidator) continue to be bound by the arbitration agreement so far as any counterclaim falling within its scope is concerned. It would not, therefore, in [counsel]'s submission, be open to the liquidator of [Respondent] to bring court proceedings to recover losses allegedly suffered by the company due to [Claimant]'s breaches of the Distribution Agreement . . ., as [A] has indicated he is considering doing.

17. The position originally adopted by [counsel for Claimant] was to accept that the fallimento of [Respondent] meant that the arbitration could not, or at least need not, proceed so far as [Claimant]'s claim was concerned . . . The argument presented on behalf of [Claimant] was and is that the effect of the fallimento falls to be determined by English, not Italian law, by virtue of Articles 4.2(f) and 15 of the Insolvency Regulation. 1 Under English law, by virtue of section 130(2) of the Insolvency Act 1986 proceedings against a company in liquidation are automatically stayed by operation of law, unless and until the court gives permission for them to be continued. Without conceding that section 130(2) necessarily applies to arbitration proceedings, [counsel for Claimant] were, as we understood the position, willing to accept that the arbitration should not proceed so far as their client's claim was concerned.

18. [Claimant]'s position has, however, now changed, as a result of the decision of Lawrence Collins J. in Mazur Media Ltd v. Mazur Media G.M.B.H [2005] 1 Lloyd's Rep. 41. In that case the question arose whether the effect of s. 130(2) of the Insolvency Act was that English court proceedings should be stayed following insolvency proceedings in the country of the debtor, to which the Insolvency Regulation applied. It was assumed without the contrary being argued that the question was to be answered as a matter of English law, by virtue of Article 15 of the Insolvency Regulation. Lawrence Collins J. held that s. 130(2) has no application to foreign insolvency proceedings, and that whereas the English court has an inherent jurisdiction to stay proceedings in the interests of justice such a course could not be taken where the effect of doing so would be to circumvent the provisions of Council Regulation No. 44/2001 (the Judgments Regulation).

19. On the basis of this decision and reasoning it is now submitted on behalf of [Claimant] that the arbitrators should proceed to make a final award not merely on [Respondent]'s counterclaim but also on [Claimant]'s monetary claims for damages arising from [Respondent]'s breaches of the Distribution Agreement. At [counsel for Claimant]'s request we held a further hearing . . . at which the matter was debated with counsel representing [Claimant]. 2 Counsel submitted not merely that we could and should make a final monetary award in [Claimant]'s favour, but that we had no alternative but to do so: he pointed out that this is an English arbitration governed by English law, which is both the proper law of the contract and the lex curiae. By virtue of Article 15 English law determines the effect on the arbitration of the fallimento of [Respondent]. It is now clear that s. 130(2) has no application to foreign insolvency proceedings. And arbitrators have, counsel submitted, no power either under the ICC Rules or under the general law to stay arbitration proceedings. A party to an arbitration who wishes to have an award in its favour is entitled, provided, obviously, that it can make out its case, to insist on having one from the arbitral tribunal.

20. We have decided that we should accept these submissions made on behalf of [Claimant], but not without much doubt and hesitation. The position is paradoxical: if a winding-up order had been made against [Respondent] in England (which could, of course, have been done, notwithstanding that it is not an English company) the effect of s. 130(2) would have been to stay the arbitration, assuming it were held to constitute an "action or proceeding" within the meaning of that statutory provision. Even if s. 130(2) does not apply to arbitration proceedings as such, it undoubtedly applies to court proceedings to enforce an arbitral award. If the arbitration had been proceeding in Italy the effect of [Respondent]'s fallimento would, again, have been to stay the arbitral proceedings: see for example Cass. Civ. 4th September 2004 n. 17891 and the other decisions there cited at pp. 4-5. But because the arbitration is English and the winding-up order Italian there is to be no stay.

21. We also have misgivings about the meaning and effect of Article 15 of the Insolvency Regulation. In the first place, it is not clear that an arbitration is a "lawsuit pending": the phrase might only refer to court proceedings which are pending. We were told by counsel that neither the text of the Insolvency Regulation in other languages nor the travaux préparatoires gave any real assistance as to the meaning of the phrase. 3 Secondly, we are not clear as to the meaning of the phrase "concerning an asset or a right of which the debtor has been divested" in the article. Presumably it is intended to limit or restrict in some way the types of "lawsuit pending" to which the article applies-otherwise it would simply have read: "The effects of insolvency proceedings on a lawsuit pending against the debtor shall be governed solely by the law of the Member State in which that lawsuit is pending." Again, the travaux préparatoires do not provide further assistance as to the meaning of the phrase. But, as noted above, Article 15 was assumed to be applicable in the Mazur Media case, and it is clearly possible to regard the present arbitration proceedings as a lawsuit concerning an asset or right of which [Respondent] has been divested, namely the benefit of its rights under the Distribution Agreement itself.

22. [B] has made it clear that he has no intention of pursuing the counterclaim on behalf of [Respondent]: on the contrary, he says the arbitration agreement has become entirely irrelevant so far as the company in fallimento is concerned. In these circumstances, insofar as [Respondent]'s various claims could have been maintained by way of counterclaim in the face of our Partial Award (a matter on which there might have been considerable scope for debate) it seems to us that [Claimant] is entitled to an award dismissing the counterclaim; but whether that award has any and if so what effect will be a matter for the court before which the question arises.'

1
Article 4.2(f) provides: "The law of the State of the opening of proceedings shall determine the condition for the opening of those proceedings, their conduct and their closure. It shall determine in particular . . . the effects of the insolvency proceedings on proceedings brought by individual creditors, with the exception of lawsuits pending." Article 15 provides: "The effects of insolvency proceedings on a lawsuit pending concerning an asset or a right of which the debtor has been divested shall be governed solely by the law of the Member State in which that lawsuit is pending."

2
Although [Respondent] was not represented at this hearing, there being, as we were informed, no funds to enable representation to be arranged, we have, as stated above, been provided with full and helpful submissions by [B], which we have taken fully into account in our deliberations.

3
Following the hearing we were helpfully supplied with the text of the Virgos/Schmit Report on the Convention, and the text of Article 15 in various other languages. These documents confirm the correctness of what counsel said.