La demanderesse, une société polonaise, a été déclarée en faillite un an après le début de l'arbitrage engagé contre la défenderesse, une société autrichienne.

'17. On the Standing to Sue of [Claimant] (in Bankruptcy):

17.1 According to the information available to the Arbitral Tribunal, [Claimant] has been represented by its Official Receiver . . . since it was declared bankrupt. According to the Power of Attorney signed by [the Receiver], Claimant's counsel was authorised to represent [Claimant] in bankruptcy in the course of the present Arbitration . . .

17.2 In its Complementary Statement of Claim . . . Claimant indicated that the new Commissioner Judge of [Claimant] in bankruptcy had been changed and that he had given the order to sell the Claims asserted in the present Arbitration. However, until now, the Sole Arbitrator has not received any information indicating that the Claims have been sold or assigned to a third Party.

17.3 Respondent contends that Claimant has not established that under Polish law it still has the capacity to sue and to be a party in judicial proceedings. However, Claimant's (unchallenged) Official Receiver has stated that [Claimant]'s activities were continuing under the supervision of the Polish Bankruptcy Court, and Respondent has in no way demonstrated that this was not the case. This, rather, seems a usual situation.

17.4 Respondent quotes Swiss law, which provides for the stay of civil proceedings pending in Switzerland against a debtor in a Swiss bankruptcy (Art. 207 Swiss Bankruptcy Law). But even under Swiss law, the Official Receiver can decide to resume proceedings which have been stayed. Such rules are not part of international public policy. In any case, they are not applicable either to Polish companies or to the present Arbitration.

17.5 Furthermore, none of the Parties has submitted evidence, or even alleged, the content of Polish law on this question.

17.6 Therefore, according to the elements available, the Arbitrator finds that [Claimant], in bankruptcy, has the capacity to continue the present Arbitration proceedings. Respondent's argument is consequently rejected.'