Das Schicksal internationaler Schiedsverfahren in der Insolvenz des Schiedsbeklagten

The opening of an insolvency proceeding against the defendant of a pending arbitration proceeding raises complicated questions as to whether and if so, under which conditions the arbitration proceeding can be continued. In cross-border cases the occurring problems are multiplied because the question of the applicable law is added. Unfortunately there is a lack of certainly applicable choice of law rules to answer that question because the arbitral tribunal of an international arbitration proceeding cannot be as clearly assigned to a specific forum in the way a public court can be assigned to the forum of its state. A “conflict-of-conflict-of-law problem” (De Ly) occurs.
In clear distinction from existing opinions, the thesis emanates from the principle of party autonomy that dominates the arbitration process and thus develops an independent approach of a result-oriented conflict-of-law qualification. It also contains a practical handout for arbitral tribunals.