Syska v Vivendi Universal SA & Ors

Syska v Vivendi Universal SA & Ors

Where arbitration proceedings are pending at the date of insolvency, the effect of the insolvency on the arbitration and the arbitration agreement (insofar as it concerns the pending reference) is governed by the law of the Member State in which the arbitration is pending (here, England), pursuant to Article 15 of EC Regulation 1346/2000. The Polish law provision annulling the arbitration agreement does not apply to terminate the pending arbitration. The application to set aside the arbitral award is therefore refused.

Parties
Claimant: Josef Syska acting as the Administrator of Elektrim S.A. (in Bankruptcy); Claimant: Elektrim S.A. (in Bankruptcy); Defendant: Vivendi Universal S.A.; Defendant: Vivendi Telecom International S.A.; Defendant: Elektrim Telekomunikacja Sp. zo.o.; Defendant: Carcom Warszawa Sp. Zo.o
Jurisdiction
England and Wales
Judgment Date
02 October 2008
Procedural Posture
Commercial Arbitration Challenge / Judgment on Application to Set Aside Arbitral Award Under Section 67 of the Arbitration Act 1996
Outcome
Application to set aside the arbitral award refused; award upheld.
Legal Topics
Effect of Insolvency on Arbitration Agreements, Interpretation of EC Regulation 1346/2000, Jurisdiction of Arbitral Tribunals Post Bankruptcy, Conflict of Laws in Cross Border Insolvency, Application of Lex Concursus and Lex Fori Processus
Insolvency Law Arbitration Law European Union Law Effect of Insolvency on Arbitration Agreements Interpretation of EC Regulation 1346/2000 Jurisdiction of Arbitral Tribunals Post Bankruptcy Conflict of Laws in Cross Border Insolvency Application of Lex Concursus and Lex Fori Processus

Case Brief

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Parties

Josef Syska acting as the Administrator of Elektrim S.A. (in Bankruptcy)

Claimant

Elektrim S.A. (in Bankruptcy)

Claimant

Vivendi Universal S.A.

Defendant

Vivendi Telecom International S.A.

Defendant

Elektrim Telekomunikacja Sp. zo.o.

Defendant

Carcom Warszawa Sp. Zo.o

Defendant

Procedural Posture

Commercial Arbitration Challenge / Judgment on Application to Set Aside Arbitral Award Under Section 67 of the Arbitration Act 1996

Legal Issues

  1. 1 Does the Polish bankruptcy annul the arbitration agreement and pending arbitral proceedings under EC Regulation 1346/2000?
  2. 2 Does Article 4.2(e) or Article 4.2(f)/15 of the Regulation govern the effect of insolvency on pending arbitrations?
  3. 3 Is an arbitration agreement a 'current contract' or are pending arbitrations 'lawsuits pending' under the Regulation?

Ratio Decidendi

Where arbitration proceedings are pending at the date of insolvency, the effect of the insolvency on the arbitration and the arbitration agreement (insofar as it concerns the pending reference) is governed by the law of the Member State in which the arbitration is pending (here, England), pursuant to Article 15 of EC Regulation 1346/2000. The Polish law provision annulling the arbitration agreement does not apply to terminate the pending arbitration. The application to set aside the arbitral award is therefore refused.

Court Disposition

Application to set aside the arbitral award refused; award upheld.

Orders

  • The application under section 67 of the Arbitration Act 1996 to set aside the arbitral award is dismissed.