Die effek van likwidasie op arbitrasies

Abstract

This article addresses the effects of insolvency in arbitral proceedings. The interaction between insolvency law and the law of arbitration is a neglected topic and literature on the subject is scarce. In this article three situations are distinguished and discussed. The first exposition merely reflects on the effect of liquidation on an arbitration clause recorded in a contract between an insolvent, liquidated company and another. Secondly the situation is discussed where an arbitration is already in process when liquidation takes place. In the third instance the position is examined where an arbitration award has been made prior to the liquidation. Suggestions as to how national courts should apply the law in each of these situations are provided. In the second part of the article the effect of an international arbitration is investigated. As will be seen, the interaction between the insolvency law and arbitration law is complex, in particular in an international context. In general it can be said that neither of the fields provides appropriate answers and useful guidelines where these two fields intersect. Suggestions are nevertheless presented in an attempt to find a fair and just solution for every party concerned