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NUMÉRO SPÉCIAL AFRIQUE
of any such debt. Only a judgment by a civil court or a final award by an arbitral
tribunal can have that effect (also referring to Bateman Television Ltd v Coleridge
Finance Co. Ltd. [1971] NZLR 929 (cited in Parmalat)).
The Singapore High Court in Founder Group noted that the principles applicable
to Winding-Up Proceedings when in presence of an arbitration agreement were
those laid down in the appeal case of AnAn Group (Singapore) Pte Ltd v VTB
Bank (Public Joint Stock Company) [2020] SGCA 33. The test was not that
applicable to ordinary Winding-Up Proceedings (whether there was a triable issue
or whether the respondent disputes the debt or asserts a cross claim bona fide and
on substantial grounds), but a lower prima facie standard of review, similar to the
Salford test: Winding-Up Proceedings will be stayed or dismissed if (a) there is a
valid arbitration agreement between the parties, and (b) the dispute falls within the
scope of the arbitration agreement, unless there are exceptional circumstances or
an abuse of process, or if the debt is not genuinely disputed. The AnAn approach
is more favourable to a respondent than the general approach in four ways. First,
under the AnAn approach, the insolvency court looks only at the validity and
scope of the arbitration agreement and not at the merits of the dispute in relation
to the debt or the cross-claim that the respondent raises. Second, even then, the
insolvency court does not attempt to reach any conclusion on the validity and scope
of the arbitration agreement. The insolvency court needs only be satisfied prima
facie that the arbitration agreement is valid and that it encompasses the dispute.
Third, the insolvency court considers the question of whether the respondent is
abusing the process of the court without considering the merits of the dispute in
relation to the debt or the cross-claim which the respondent raises. Finally, the
rule of practice applicable to ordinary Winding-Up Proceedings is curtailed in that
the insolvency court's overriding procedural discretion will never be exercised in
favour of allowing the insolvency court to decide for itself the substantive legal
question of " debt or no debt " .
In addressing the question of whether insolvency and arbitration were in
conflict, the Singapore Court of Appeal in AnAn held that the court ought to treat
disputes arising from the operation of the statutory provision of the insolvency
regime per se as non-arbitrable, even if the parties expressly included them within
the scope of their arbitration agreement whereas if the dispute involving the
insolvent company stems from its pre-insolvency rights and obligations, there will
usually be no good reason not to observe the terms of the arbitration agreement
(they do not involve public policy considerations, such as the protection of
creditors). The Singapore Court of Appeal rejected the argument that, adopting
the prima facie test dealt a blow to the insolvency regime, as this later position
assumes that the company is in fact a debtor, when that question is precisely
what the parties have agreed to refer to arbitration. A statutory demand that is
unsatisfied merely leads to the presumption that the debtor is insolvent; it does
not determine that the debtor is in fact insolvent. Hence, the policy considerations
of the insolvency regime were said not to be engaged in this case. Given that the
prima facie standard applies for ordinary claims, which are subject to arbitration, a
fortiori, it should apply to a winding-up application, which carries far more severe
consequences for a company. The Singapore Court of Appeal further clarified that
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Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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