Originally held on Friday, December 2, 2022 | 12:00 pm – 1:30 pm
Leslie Berkoff
Moritt Hock & Hamroff LLP
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Understanding how parties preexisting agreements or rights to arbitrate disputes are impacted by bankruptcy restructurings both domestically and internationally: This program will focus primarily on the introduction of bankruptcy and arbitration, and will address in what circumstances Bankruptcy Courts will consider allowing arbitration of a dispute and limitations with respect to the same. This program will cover a summary of the current Supreme Court and Second Circuit decisions, as well as, identify the most current approaches to addressing the intersection of the Bankruptcy Code and the Federal Arbitration Act. The Panel will explore questions of how the issues arise within the context of the treatment of executory contracts during domestic Chapter 11 and cross-border cases and the impact of rejection of executory contracts on arbitration clauses. The Panel will also evaluate and discuss how to harmonize arbitration and a larger bankruptcy case in terms of providing the parties with equitable relief, the need for expeditious case management, and cost effective strategies for smaller consumer based cases. A discussion of the use of arbitration within the context of cross-border multi-party cases will also be covered as applied to larger complex matters. With the growth of dispute resolution being utilized overall given an anticipated uptick in the bankruptcy courts, this is a timely program.
Program Fee:
$119 for Members | $219 for Nonmembers -
Hon. Robert Drain
U.S. Bankruptcy Judge, SDNYHagit Muriel Elul
Hughes Hubbard & ReedHon. Allan L. Gropper
Former U.S. Bankruptcy Judge, SDNYHon. Michelle Harner
U.S. Bankruptcy Judge, District of Maryland -
12:00 pm – 12:30 pm
Summary of Basic Case Law
- Summary of the case law and some basic principles
- U.S. Supreme Court’s recent cases
- Circuit level, including Anderson from the 2nd Circuit
- Identifying the most current approaches to the intersection of Bankruptcy and Arbitration
12:30 pm – 12:50 pm
Executory Contracts/Arbitration
- What is the impact of rejection on an Executory Contract?
- Does rejection of the Executory Contract impact application of the FAA?
- Is an arbitration clause severable?
- Does this matter if the Executory Contract may no longer be enforceable?
12:50 pm – 1:20 pm
How do we Account for Arbitration within the Context of Bankruptcy Domestically/Internationally
- Bankruptcy process is collective in nature can we mesh the two constructs? Does this change for cases domestically versus internationally?
- What is the extent/scope of the automatic stay?
- How to address at least the perceived deficiencies in arbitration’s ability to:
- provide equitable relief,
- fit into a larger bankruptcy case or international case (as most bankruptcy judges manage their calendars not just in reference to the discrete issues that are in front of them but also in the context of the overarching case), and whether bankruptcy courts have the power to pull back an issue that is in arbitration if it’s taking too long to resolve in the light of the larger case’s progress, and
- What about smaller cases, such as chapter 7 or 13 debtors and even perhaps chapter 7 trustees, who lack the funds to pay for an arbitration.
1:20 pm – 1:30 pm
Q&A - Summary of the case law and some basic principles
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New York: 1.5 Skills
New Jersey: 1.5 General
California: 1.0 General
Pennsylvania: 1.0 General
Connecticut: Available to Licensed Attorneys -
Sponsoring Association Committee:
Bankruptcy & Corporate Reorganization, Ana Maria Alfonso, ChairCo-Sponsoring Association Committees:
Arbitration Committee, Lea Haber Kuck, Chair
Alternative Dispute Resolution Committee, Philip Goldstein, ChairSponsorship Opportunities are Available! Please Contact:
Yelena Balashchenko, Manager, Business Development & Sponsorships | (212) 382-6608 | ybalashchenko@nycbar.org