ARBITRAŽA IN INSOLVENČNI POSTOPKI

Bankruptcy and International Arbitration: Some Comparative Snapshots

Patricia Živković

The article contains the comparative snapshots of national laws and courts’ decisions, which deal with the effects of bankruptcy on international arbitration. These effects are severe and they may affect the arbitrability of a dispute, the conduct of arbitration, or the validity of an arbitration agreement. They stem from the conflict of the underlying policies of the two procedures: bankruptcy and arbitration. While arbitration is based on the principle of parties’ autonomy and privity, and it supposes the decentralization of the forum, bankruptcy proceedings are judicial, collective, and centralized. This conflict is usually left to be resolved at the national level, which results in the lack of uniformity of solutions at the international level, and consequently there is no predictability for the parties involved in international arbitration. The author provided an overview and a critical analysis of the determination of the law applicable to the effects of bankruptcy on arbitration and the comparative analysis of several specific effects.