Naslov
Effects of Foreign Insolvency Proceedings on Pending Arbitral Proceedings According to the European Insolvency Regulation

Autori
Garašić, Jasnica

Vrsta, podvrsta i kategorija rada
Poglavlja u knjigama, znanstveni

Knjiga
Verbindungslinien im Recht

Urednik/ci
Durantaye, Katharina ; Paulus, David ; Tirado, Ignacio ; Westbrook, Jay ; Zenker, Wolfgang

Izdavač
C.H.Beck

Grad
Minhen

Godina
2022

Raspon stranica
237-246

ISBN
978 3 406 78780 5

Ključne riječi
foreign insolvency proceedings ; arbitral proceedings ; European Insolvency Regulation

Sažetak
In the context of cross-border insolvency proceedings, the lex fori concursus should be the applicable law for the following issues: the capacity of the insolvent debtor to be a party in pending arbitral proceedings, the procedural capacity of the insolvent debtor in pending arbitral proceedings, effects on the power of attorney issued by the insolvent debtor before the opening of insolvency proceedings for its representation in pending arbitral proceeding, as well as for the authority/entitlement to initiate the continuation of the stayed/suspended arbitral proceedings. That is also the position of the European Insolvency Regulation from 2015 (Article 7(1), Article 7(2)(sent. 2)(c, e) EIR). These questions are not covered by Article 18 EIR and are not governed by the law of the Member State in which the arbitral tribunal has its seat. As a rule, the lex fori concursus should also govern the effects of the opening and recognition of foreign insolvency proceedings on arbitration agreements (clauses) (see Article 7(1), Article 7(2)(sent. 2)(e) EIR). Since this question is controversial, the European legislator should have elaborated on it in more detail in one of the Recitals of the Preamble to the EIR. The rule from Article 18 EIR, according to which the law of the Member State in which the arbitral tribunal has its seat governs the effects of insolvency proceedings on pending arbitral proceedings, should be interpreted in the way that this law applies only to the question whether pending arbitral proceedings with the opening of insolvency proceedings and their recognition shall be continued or stayed (suspended), further to the question of effects of such a stay (suspension) as well as to the question of modalities, form and generally of the procedure concerning the initiation of the stayed (suspended) arbitral proceedings. Having in mind the importance of reasons that justify the temporary stay/suspension of pending arbitral proceedings after the opening and recognition of foreign insolvency proceedings, it remains for consideration whether the introduction of the rule of the automatic stay of pending arbitral proceedings modeled on Article 20 of UNCITRAL Model Law on Cross-Border Insolvency Proceedings would be a better solution for the EIR.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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