Insolvency and Arbitration Working Group
Wednesday 11 September 2024
In 2019, the IBA Arbitration Committee established a Working Group to examine the intersection of insolvency and arbitration and develop meaningful guidance for the arbitration community on the subject.
To date, the Working Group on Insolvency and Arbitration has completed two projects:
The Toolkit on Insolvency and Arbitration
The Report on Insolvency and Investment Arbitration
This Toolkit provides guidance to parties, counsel and arbitrators in situations where a party to arbitration proceedings is also subject to insolvency proceedings in one or more jurisdictions. The Toolkit, published by the Committee in 2021 and updated in 2024, consists of three parts:
- National Reports from 26 countries, discussing the legal approach to the intersection of arbitration and insolvency in their jurisdiction
- An Explanatory Memorandum, providing a detailed explanation of the relevant concepts discussed in the National Reports and how they may impact domestic and international arbitrations
- A Checklist on Insolvency and Arbitration , serving as a tool to arbitrators, counsel and parties in identifying issues relevant to the intersection of arbitration and insolvency and providing a framework for considering their resolution
The first edition of the IBA Toolkit on Insolvency and Arbitration was co-chaired by Felipe Ossa and Jennifer Permesly. The second edition of the Toolkit was completed under Co-Chairs Hamid Abdulkareem and Simon Batifort. Dr Manuel Penades acted as the Academic Chair of the Working Group for both editions of the Toolkit. The project was conceived by former IBA Arbitration Committee Vice-Chair, Christian Leathley, who provided significant input.
Download the IBA Toolkit on Insolvency and Arbitration, the national reports by country and more, using the links below.
The Toolkit seeks to offer an aide memoire to arbitration practitioners, but will naturally benefit from ongoing review and input from the arbitration and insolvency communities. Accordingly, should you be interested in submitting a National Report or other suggestions, please contact the current Chair and Academic Chair of the Working Group with your CV and a summary of your specific credentials, and we will respond in due course.
The Report, published in 2024, provides the first comprehensive treatment of the intersection between insolvency and investment arbitration. While some of the questions raised by this intersection are also relevant to commercial arbitration and have been addressed in the IBA Toolkit (above), this Report covers in detail the various issues that arise specifically in the context of investment arbitration. This includes issues of:
- Jurisdiction
- Shareholder standing for reflective loss
- Attribution of conduct to the State
- Merits issues (expropriation, fair and equitable treatment, etc.)
- Damages (existence of loss and causation), valuation, and interest
- Procedure (including third-party funding, security for costs, and interaction between arbitration and insolvency proceedings)
Edited by Hamid Abdulkareem and Simon Batifort (2022-2023 Co-Chairs of the Working Group) and Dr Manuel Penades (Academic Chair), the Report includes 7 chapters authored by leading international arbitration practitioners.
Download the report
Chairs of the Working Group
2024-2025: Ema Friedman and Helen Tang (with the support of André de A. Cavalcanti Abbud)
2022-2023: Hamid Abdulkareem and Simon Batifort
2019-2021: Felipe Ossa and Jennifer Permesly
Dr Manuel Penades, a leading scholar on the intersection of insolvency and arbitration, is the Academic Chair of the Working Group.