Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 175

NUMÉRO SPÉCIAL AFRIQUE
arbitration. If the court cannot be sure of either of these two matters, but good
sense and litigation management makes it desirable for an arbitrator to consider
the whole matter first, the court may stay its proceedings pursuant to its inherent
powers. Applying Albon, the Court of Appeal in Hashwani held that it would,
however, be only in exceptional cases that a court faced with proceedings,
which require it to determine the jurisdiction of an arbitral tribunal, will be
justified in exercising its inherent power to stay those proceedings to enable the
arbitral tribunal itself to decide the question.
The position of the English courts in the context of Winding-Up Proceedings
is however different. Where it is alleged that a company ought to be wound
up because it is unable to pay its debt as they fall due under S.123(1)(e) of
the Insolvency Act 1986 (the " English Insolvency Act " ), the Court of Appeal
in Salford Estates (No. 2) Limited v Altomart Limited [2014] EWCA 575 Civ.,
held that that such action fell outside the ambit of S.9(1) of the English AA.
The reasons invoked were that a winding-up petition based on the ground that
the respondent was unable to pay its debt as they fall due was not a " claim "
for the purpose of S.9, " as a winding up order might or might not result in
the right to payment of an amount equal to the debt specified in the Petition
in the present case. It would depend upon the value of the assets available
for distribution in the liquidation to [the company's] body of creditors and the
respective priority ranking of the creditors, including Salford Estates, under the
statutory framework " . However, in Salford, the Court of Appeal held that it
could use its discretion pursuant to its inherent jurisdiction under S.122(1) of
the English Insolvency Act (circumstances under which a court may wind-up
a company, similar to S.102 of the Mauritius Insolvency Act) to dismiss the
petition (or stay it, if there is potentially a substitute would-be petitioner willing
to take carriage), unless there were wholly exceptional circumstances, which
justified the investigation of whether the debt was disputed in good faith on
substantial grounds.
The Court of Appeal's approach in Salford has been criticized for its apparent
inherent inconsistency in rejecting the application of the English AA, while
justifying the exercise of its discretion under S.122(1) of the English Insolvency Act,
through the necessity to give effect to the legislative intent behind the English AA
of preventing courts from deciding arbitration disputes on a summary basis. Salford
reflects, however, the current state of case law in England and Wales. It has been
applied subsequently, notably in Eco Measure Market Exchange Ltd v Quantum
Climate Services Ltd [2015] EWHC 1797 (Ch), where the High Court clarified that
the Salford principle applied, even when the debt was " undisputably due " . In
Fieldfisher LLP v Pennyfeathers Ltd [2016] EWHC 566 (Ch), the High Court held
that, even previous admissions of the disputed debt, did not constitute " wholly
exceptional circumstances " .
While the route taken by an English court to refer a claim to arbitration in
a non-winding-up context under S.9 of the English AA differs from that taken
by an English court exercising its inherent jurisdiction to stay proceedings in
Winding-Up Proceedings, both mechanisms are ultimately similarly very proarbitration.
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Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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