58 - Arbitration and Insolvency

Summary

The insolvency of a party has considerable effects on all its legal relationships. The restriction imposed by the national insolvency law naturally also affect the ability to pursue claims in arbitration. The entry discusses in its first parts the various types of restrictions contained in the national insolvency laws and their effect on the arbitration agreements, the arbitral tribunals jurisdiction, the arbitration proceedings and the parties involved as well as the underlying policies. In presenting the various approaches adopted, which often differ considerably, exemplary provisions and cases for each approach are presented without focusing on specific jurisdictions. The second part is devoted to the important conflict of laws questions in international cases where the place of arbitration and the place of the insolvency are located in different jurisdictions. They are adressed both from the perspective of the state courts as well as from the perspective of the arbitral tribunal.