Arbitrability of Insolvency Disputes: Resolving the Conundrum – Vol. 31 No. 2

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Authors: Shashwat Bhaskar* and Winy Daigavane**

Published: April 2021

United States
United Kingdom
Commercial Disputes
Competition and Antitrust
Intellectual Property
Investment Disputes
Banking and Finance Disputes

Description: The arbitrability of a dispute is one of the primary determinants of whether the said dispute can be settled by means of arbitration. It generally depends on municipal law and hence differs from jurisdiction to jurisdiction. More often than not, disputes of a public nature or those having an impact on third-party rights, such as insolvency disputes, are considered non-arbitrable or have contentious arbitrability. It is this contentious arbitrability of insolvency disputes that this article seeks to examine. In doing so, the article provides a primer on the concepts of insolvency and arbitrability and sheds light on other subject matters that similarly have suffered from debatable arbitrability. It goes on to discuss the extent to which insolvency disputes are considered arbitrable across various jurisdictions, and elucidates the role of the UNCITRAL Model Law on International Commercial Arbitration, 1985 in this regard. Taking all of this into consideration, the article asserts that it is necessary to bring uniformity to how states approach the arbitrability of insolvency disputes, and suggests common factors for the same.

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* Associate at S & R Associates, New Delhi. The author graduated with a BA, LLB (Tons.) degree from the National University of Advanced Legal Studies (NUALS), Kochi, India in 2020. The views expressed in this article are those of the author alone and do not necessarily represent the views of S & R Associates.
** Final year student of law at the National University of Advanced Legal Studies (NUALS), Kochi, India. The author serves on the editorial board of the NUALS Law Journal and is a Senior Editor on the editorial board of NUALS Insolvency and Bankruptcy E-Newsletter.