NEWSLETTER-2020-metin

231 ARBITRATION LAW tence . The arbitral tribunals, constituted as per LCIA rules, concluded, on the one hand, that they did not lack jurisdiction on the grounds that the application of Polish law was procedural and not substan- tive, that English law was the applicable law, and nothing in English law prevents the arbitration from proceeding. On the other hand, the arbitral tribunal, constituted under the ICC rules, considered the is- sue to be substantive, and that Polish law was the applicable law, and that Elektrim had no legal capacity to participate in the proceedings. Therefore, the arbitral tribunal determined that it lacked jurisdiction. These contrasting arbitral decisions were reviewed by the U.K. and Swiss courts and were upheld as valid 6 . In certain cases, arbitral tribunals also refuse the legal effect of insolvency legislations on the grounds of territoriality of insolvency proceedings. In other words, one can argue that a bankruptcy proceed- ing initiated in one country does not constitute a procedural impedi- ment for arbitral proceedings in another country. Even if a state court is bound to suspend all of the proceedings, the same effect cannot be extended to arbitration as grounds for dismissal because the parties’ conscious choice to arbitrate and not to litigate would be enough to point out the territorial effect of insolvency proceedings, which is also in line with the arbitration’s fundamental principle of party autonomy. Conclusion Commercial arbitration disputes mostly arise from contractual claims where one of the parties asks for payment of a certain amount of money. This subject matter, itself is, no doubt, arbitrable. That be- ing said, when one of the parties is insolvent, insolvency laws usually mandate the insolvent party and its estate to go through a verification procedure conducted by national courts or administrators. Therefore, arbitral tribunals and national courts keep looking for the answer to the following question: Does the claim itself become non-arbitrable 6 For Elektrim SA v Vivendi Universal SA & Ors, England and Wales High Court (Commercial Court) (Mar. 20, 2007); Vivendi SA et al v. Deutsche Telekom AG, 4A_428/2008, Swiss First Civil Law Court (Mar. 31, 2009) please refer to Camp, Charles H; Gore, Kiran Nasir: The Interplay Between Insolvency Proceedings and Parallel International Arbitration Proceedings in the Post-Pandemic World, The World Financial Review, 2020.