Commercial Litigation and Arbitration

Arbitrable vs. Non-Arbitrable Bankruptcy-Related Claims

From Judge Martin Glenn’s opinion in In re Bethlehem Steel Corp. v. Moran Towing Co., 390 B.R. 784 (Bankr. S.D.N.Y. 2008):

[Fraudulent Transfer Claims Exempt from Arbitration.] In this Circuit, courts have exempted fraudulent transfer claims from arbitration because they are statutory claims belonging to the trustee and are not claims derivative of the debtor's own rights. Allegaert v. Perot, 548 F.2d 432, 436 (2d Cir. 1977); Hagerstown Fiber Ltd. P'ship v. Carl C. Landegger, 277 B.R. 181 (Bankr. S.D.N.Y. 2002) (granting motion to compel arbitration of fraud claims, but not fraudulent transfer claims brought pursuant to section 544(b) of the Bankruptcy Code). ***

[Preference Claims Exempt from Arbitration.] [S]tatutory preference avoidance claims are analogous to the fraudulent transfer claims that were addressed in Allegaert, Hays, and Hagerstown. The same rationale for denying arbitration applies to preference claims. They are not claims that are derivative of debtor's rights; they can only be brought by a trustee or debtor in possession or one of their assignees, none of whom were parties to the arbitration agreement; and, therefore, preference avoidance claims are not subject to arbitration. ***

[Discretion to Deny Arbitration of Core Claims.] As explained above, the Court has concluded that the statutory preference avoidance claims are not covered by the arbitration clauses involved in these adversary proceedings. But even if these claims were covered by the broad arbitration clauses in the underlying contracts, the Court nevertheless has discretion to deny arbitration of these core proceedings and would exercise that discretion to deny the motions to compel arbitration in these cases. The Federal Arbitration Act provides that "an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Correspondingly, "there will be occasions where a dispute involving both the Bankruptcy Code . . . and the Arbitration Act . . . presents a conflict of near polar extremes: bankruptcy policy exerts an inexorable pull towards centralization while arbitration policy advocates a decentralized approach towards dispute resolution." U.S. Lines, Inc. v. Am. Steamship Owners Mut. Prot. and Indem. Assoc. (In re U.S. Lines, Inc.), 197 F.3d 631, 640 (2d Cir. 1999) (quoting Societe Nationale Algerienne Pour La Recherche, La Production, Le Transport, La Transformation et La Commercialisation des Hydrocarbures v. Distrigas Corp. , 80 B.R. 606, 610 (D. Mass. 1987)). ***

[New York Convention Does Not Change Result.] The Coeclerici defendants argue that the New York Convention — applicable to the two cases where Coeclerici is a party, but not to the Moran and Satchuk proceedings — requires arbitration of the Coeclerici cases. But the reasoning of Allegaert and Hays applies equally to all four cases. Only claims derivative of the Debtor's rights are subject to arbitration. No such claims are asserted here. Statutory avoidance claims that belong to the trustee or debtor in possession are not subject to the Debtor's arbitration agreements. Second, even if the arbitration clauses could cover these avoidance claims, the Court nevertheless concludes that it may decline to compel arbitration of these claims. ***

Federal policy favoring recognition of arbitration agreements is particularly strong for international agreements. In the circumstances presented here, however, the Court concludes that there is a "severe conflict" between policies underlying arbitration agreements and the conduct of this bankruptcy proceeding such that " Congress intended to override the Arbitration Act's general policy favoring enforcement of arbitration agreements."

Share this article:


Recent Posts