Insolvency in Commercial Arbitration: A German and International Perspective

The settling of disputes in international trade and in large and technically complex construction projects can hardly be imagined without the institution that is arbitration. Another thing we can be sure about is that insolvency will also remain a part of the lifecycle of business entities within the currently existing economic system. Whereas insolvency proceedings are heavily regulated with little leeway for the parties, the central tenet of arbitration is the autonomy of the parties. Hence this book aims to thoroughly investigate the many legal issues arising in arbitral proceedings when insolvency and arbitration clash. This interaction is increasingly frequent today.

Providing much-needed practical guidance derived from a broad and deep theoretical discussion, the book covers such aspects as the following:

• the effect of insolvency on the arbitration agreement, the arbitration procedure (including a potential mandatory stay of proceedings), the arbitrator's contract, and the arbitral award;

• the position of insolvency and arbitration within a legal order;

• the arbitrability of insolvency(-related) issues and claims;

• the possibility of determining claims in insolvency via arbitration;

• the determining of applicable law and conflict-of-laws rules, in particular when insolvency is opened in a different jurisdiction than that of the arbitration; and

• insolvency in arbitration within the application of the European Insolvency Regulation.

After a chapter on the relevant background theories, the two main chapters of the book focus first on general issues that can arise in a domestic situation and second on problems particular to international cases of insolvency in arbitration. The primary domestic perspective is the German one, with abundant additional detail to fully embrace the international relevance of the discussion. The author concludes with a number of considerations, informed by practitioner feedback, discussions throughout the work, and as many arbitration case law examples as possible, for tribunals dealing with insolvency in arbitration.

Based on a systematic application of arbitration and insolvency theory, the book provides an all-encompassing and holistic discussion, from before an arbitration is started to after the award has been enforced. In this way, the book provides a 'one-stop-shop' for practitioners, both lawyers and arbitrators, helping tribunals to navigate the treacherous waters of insolvency in arbitration.