Private Law Theory

ABSTRACT
Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.

Shaun Matos, Arbitration Agreements and the Winding-Up Process: Reconciling Competing Values, International & Comparative Law Quarterly, Volume 72, Issue 2, April 2023, pp 309-332. DOI: https://doi.org/10.1017/S0020589323000052. Published online by Cambridge University Press: 6 March 2023.