PIL.OT / DEVELOPMENT
PIL.OTv0.62.2
Brendan Low proposes a broader use of abuse of process as a standalone doctrine to simplify and move beyond the threshold debate between arbitration and insolvency. The debate concerns whether staying winding-up proceedings requires a bona fide dispute on substantial grounds over a debt covered by an arbitration agreement, or whether the prima facie existence of such an agreement suffices.
Low proposes reconstructing the doctrine independently of intention-focused language such as ‘bona fide’, moving towards a multi-factorial test with some basis in Hong Kong and Singapore jurisprudence. He suggests drawing more comprehensive examples of abusive tactics from international investment arbitration. Addressing the doctrine’s potential conflict with kompetenz-kompetenz, he argues that the latter’s theoretical framework allows courts to resolve jurisdictional conflicts expeditiously.
The threshold for staying winding-up proceedings over a disputed debt covered by an arbitration agreement, and the relationship between an independent abuse of process doctrine and kompetenz-kompetenz.
Low proposes moving from intention-focused criteria such as bona fide disputes to a standalone, multi-factorial assessment of abuse of process, while addressing its potential conflict with kompetenz-kompetenz.
Arbitration International · 2026
DOI 10.1093/arbint/aiag021
Brendan Low, “Surpassing thresholds: evaluating a standalone abuse of process doctrine as a simplification to the threshold debate in arbitration versus insolvency”, Arbitration International, 2026-10-23, 10.1093/arbint/aiag021. https://doi.org/10.1093/arbint/aiag021