Too Late To Arbitrate

On 11 November 2022 the Court of Appeal of the Eastern Caribbean Supreme Court (the Court of Appeal) delivered an important – and in the context of the looming recession – a timely, decision on the relevance of arbitration clauses to disputed debt petitions: Sian Participation Corp v. Halimeda International BVIHCMAP 2021/0017.

The approach which the BVI Court takes to disputed debt petitions has been well established, at least since the seminal decision of Sparkasse Bregenz Bank v. Associated Capital Corporation BVIHCVAP 2002/0010. The Court must decide whether or not the debt is disputed on "genuine and substantial grounds." If it is, then it is an abuse of the process of the Court for the creditor to begin (or at any rate, to continue) with its application for the appointment of liquidators. In those circumstances, the Court must then dismiss the application, leaving the creditor to bring proceedings on the debt if it wishes. In all of this, the Court follows