Q&As

Can an arbitrator make an order under s 423 of the Insolvency Act 1986?

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Published on LexisPSL on 08/01/2015

The following Arbitration Q&A provides comprehensive and up to date legal information covering:

  • Can an arbitrator make an order under s 423 of the Insolvency Act 1986?
  • Arbitrator remedial powers under English and Welsh law
  • Arbitrability
  • Information on transactions defrauding creditors

Can an arbitrator make an order under s 423 of the Insolvency Act 1986?

For the purposes of this Q and A, it is assumed that the arbitration is ad hoc and seated in England and Wales.

To the extent that there is an arbitration agreement in place, it is important to review it carefully and determine whether or not it makes any express provisions regarding the arbitrator’s remedial powers.

As discussed further below, it is also crucial to check whether or not the arbitration agreement excludes the arbitrator from considering the proposed section 423 Insolvency Act 1986 (IA 1986) claim.

Note: if the arbitration is to be conducted pursuant to any arbitral rules (eg the LCIA Rules 2014) then do consider what those rules provide in relation to the arbitrator’s powers.

Arbitrator remedial powers under English and Welsh law

Pursuant to section 48(1) of the Arbitration Act 1996 (AA 1996), the parties to an arbitration are free to agree on the arbitrator’s remedial powers. These powers do not have to be limited to the powers of the English and Welsh court, although it is unusual for parties to agree on more expansive powers.

In the absence of any express agreement between the parties on the extent of the arbitrator’s remedial powers, under the AA 1996 a tribunal may:

  1. make a declaration as to any matter to be determined in the

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