Panel: " Arbitration, Mediation, and Adjudication in Insolvency Proceedings "
Summary by Karla Gabriela Silva Rodriguez- NextGen Class 2025
This panel offered an in-depth look at mediation in insolvency proceedings across several jurisdictions, with each expert shedding light on their respective legal frameworks. The discussion began with a foundational overview of the regulatory landscape for mediation in insolvency within each country represented.
Reinhard Dammann provided valuable insights into a significant trend developing in France: out-of-court semi-collective proceedings. He explained that this approach involves the debtor engaging in direct negotiations with a selection of creditors before formally filing for insolvency. The goal is to reach a comprehensive
26
settlement agreement prior to the official filing, an agreement that is subsequently validated by a judge. This method aims to streamline the resolution process and avoid the full complexities of court-supervised insolvency.
Both Sharon S. Hamilton and Marcelo Carpenter highlighted the prevalent use of mediation within insolvency proceedings in Canada and Brazil. They pointed out that it ' s a common practice, and notably, judges in these jurisdictions even have the authority to direct parties to mediation. This judicial referral to mediation is a key differentiator, as it ' s a practice not observed in the formal insolvency processes of Mexico or France.
Rosa
María Rojas Vértiz Contreras detailed how Mexico ' s formal insolvency proceedings incorporate a distinct conciliation stage. This stage is facilitated by conciliators, who are private professionals carefully selected by the Instituto de Federal de Especialistas en Concursos Mercantiles and formally appointed by the court. Their primary objective is to guide the parties toward an agreed-upon plan for exiting the proceeding. However, Prof. Vértiz Contreras also noted that these conciliators carry a broad range of other duties, including admitting and classifying claims and comprehensive reporting. These additional responsibilities, while crucial, can sometimes limit the extent of their direct mediation role within the proceeding. She also elaborated on the specific functions of parties and financial advisors in out-of-court proceedings in Mexico.
Sharon S. Hamilton further enriched the discussion by explaining the vital role of the monitor in Canadian insolvency proceedings. She presented numerous practical examples of how mediations are successfully integrated into insolvency cases throughout Canada, showcasing the practical application and benefits of this approach.
The panel concluded with an engaging segment where all panelists shared compelling examples of successful mediations from their respective jurisdictions, offering concrete illustrations of how mediation has led to positive outcomes in complex insolvency situations.
26