SGP Court of Appeal: Lower Threshold for Staying of Winding-Up Proceedings When There is a Valid Arbitration Agreement

Date: 19.05.2020

It is settled law that a debtor company needs to raise triable issues or establish a bona fide dispute in order to obtain a stay or dismissal of the winding-up application. The exception to this rule is evinced in the English case of Salford Estates (No 2) Ltd v Altomart Ltd (No 2) [2015] Ch 589. The court therein held that, if the dispute with regards to the debt is subject to an arbitration agreement, the prima facie standard of review ought to apply. Nevertheless, there have been conflicting approaches in the common law jurisdictions when deciding the applicable standard of review in such cases.

In April 2020, the Singapore Court of Appeal had the chance to address this matter in the case of AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Company) [2020] SGCA 33 (https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/-2020-sgca-33-pdf.pdf)

The key issue before the Court of Appeal related to the standard of review: When a debtor raises a dispute which is the subject of an arbitration agreement to resist a winding-up application filed on the basis of an unsatisfied debt, should the triable issue or prima facie standard of review apply?

The Court of Appeal allowed AnAn’s appeal and held that the prima facie standard of review is to be adopted. The corollary to this is that winding-up proceedings would be stayed or dismissed if:

• the debtor could demonstrate that there was an arbitration clause, and
• that the dispute relating to the debt falls within the scope of the arbitration clause.

A stay would not be granted notwithstanding that the prima facie standard has been met if the stay application amounts to an abuse of process. An example of an abuse of process would be where the debt had been admitted as regards both liability and quantum.

By adopting the prima facie standard for winding-up proceedings, creditors would be discouraged from abusing the court’s winding-up jurisdiction as a means to avoid the parties’ agreed method of dispute resolution (arbitration). Secondly, replacing the triable issue standard with the prima facie standard would give effect to the principle of party autonomy, which is the foundation underlying judicial non-intervention in arbitration.

The Singapore Court of Appeal has reinforced the judiciary's pro-arbitration stance and maintained its commitment not to interfere with matters within the purview of the arbitration tribunal.