Recent decisions in the BVI Commercial Court have shaped the
applicability and enforcement of arbitration clauses and, notably,
how they interface with BVI statutory remedies and
liquidations.
Standing to arbitrate?
In Comodo Holdings Ltd1 the BVI Commercial
Court clarified the need for the arbitration agreement to be
'subsisting' as between the parties before the court, and
that the court (rather than arbitration) is the appropriate forum
for determining whether parties have standing to arbitrate.
In this case it was argued that the applicant defendants'
application for a stay in favour of arbitration in New York should
be refused because the defendants were not members of the
respondent company for the purposes of the articles of association
and/or the BVI Business Companies Act 2004. It was successfully
argued that the corollary of their inability to demonstrate
membership was an absence of standing to invoke an arbitration
clause in the company's articles of
