To all insolvency proceedings opened before a court of an EU Member State after 26 June 2017, the Regulation (EU) 2015/848 of 20 May 2015 on Insolvency Proceedings (recast) will be applicable.

With regard to arbitration, the amended Article 18 of the Regulation clarifies that "The effects of insolvency proceedings on a pending lawsuit or pending arbitral proceedings concerning an asset or a right which forms part of a debtor's insolvency estate shall be governed solely by the law of the Member State in which that lawsuit is pending or in which the arbitral tribunal has its seat." The predecessor provision was Article 15 of the Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings which only mentioned pending "lawsuits", but did not include "arbitral proceedings". The consequence was that there was no explicit provision under EU law as to what law should be applicable if insolvency proceedings were opened.

This issue became relevant in the so-called Vivendi/Elektrim saga in 2009. A tribunal seated in London had to decide on the legal effects of the opening of insolvency proceedings over Elektrim before the Warsaw District Court. While Polish bankruptcy law provided that any arbitration clause concluded by the bankrupt should lose its legal effect and pending arbitrations should be discontinued, the English law had no such provision. The tribunal decided that a "pending arbitration" is considered to qualify as "pending lawsuit" under Article 15 of the old Insolvency Regulation and rejected Elektrim's objection to jurisdiction. Both the partial award on jurisdiction and the final award on the merits were upheld by the English courts.

Therefore, if an arbitration is pending in Austria and insolvency proceedings are opened before a court of a Member State, the effects are governed by Austrian law. In three decisions of the Austrian Supreme Court (18 ONc 6/14y, 18 ONc 7/14w and 18 ONc 1/15i, all dated 17 March 2015), the Court decided in domestic cases that arbitration was to be suspended according to section 7 of the Austrian Insolvency Act. As a consequence, the claim (against the insolvent respondent) would have to be filed with the competent insolvency court. However, what is interesting to mention are the two obita dicta: First, it did not call into question that the insolvency administrator is still bound by the arbitration agreement. Second, it referred to "recent" voices in legal literature that – in case the claim was contested by the insolvency administrator – the claim could be continued to be pursued before the arbitral tribunal (albeit changing the relief requested from performance to declaration).