Research On The Coordination Of Bankruptcy And Arbitration Procedure

Under the constraints of the democratic system,the free market capital guides and promotes the formation of world integration in the economy.Under this circumstances,the bankruptcy system,as an important management system to rescue crisis enterprises,eliminate outdated industries and regulate market order,requires commercial arbitration as efficient dispute resolution procedures seek synergy in conflict.Therefore,the concept of bankruptcy arbitration emerged and was used to refer to the arbitration issues involved in corporate bankruptcy.In the past period of time,China's provision in Article 21 of the Corporate Bankruptcy Law was interpreted as the courts' exclusive jurisdiction over bankruptcy-related lawsuits,and brought about the distortion that bankruptcy disputes cannot be resolved by arbitration.In March 2019,the Supreme People's Court issued the "Provisions on Several Issues concerning the Application of the" Bankruptcy Law of the People's Republic of China(C)"(hereinafter referred to as the" Judicial Interpretation of the Enterprise Bankruptcy Law(III)")and The promulgation of " Judicial Interpretation of the Enterprise Bankruptcy Law " clarifies the priority of arbitration as a solution to bankruptcy-derived disputes under the condition that the arbitration agreement applied before bankruptcy.Therefore,the arbitration procedure and the bankruptcy procedure have a need for strategic choice and convergence in the settlement of bankruptcy-related disputes,and the research on the coordination of bankruptcy and arbitration procedures has practical significance.This thesis takes bankruptcy law as the core perspective of research.Through combing and researching the issues from two levels of jurisprudence and practical application.This thesis focuses on the coordination of bankruptcy and arbitration procedures,and on the basis of a review of the relevant systems of China's bankruptcy law and the comparison and reference of foreign systems and practices,this article puts forward suggestions that this issue should be perfected in our bankruptcy law.Hoping that this research can promote the improvement of the bankruptcy law,and promote the synergy between bankruptcy and arbitration procedures through the distribution of jurisdiction and the coordination of resources to properly resolve disputes in bankruptcy.This thesis focuses on four parts: deconstruction of the coordination of bankruptcy and arbitral proceedings,coordination of bankruptcy and arbitration procedures on issues of jurisdiction,coordination of bankruptcy and arbitration procedures in the operation of procedures,and coordination of bankruptcy and arbitration procedures in enforcement of arbitration awards.Chapter1: "Deconstruction of the coordination of bankruptcy and arbitral proceedings ".This chapter first starts with the analysis of the In re: Acis Capital Management case and brings out the conflict and coordination between bankruptcy and arbitration procedures.As the need for coordination between bankruptcy and arbitration procedures begins with the application of arbitration procedures in the settlement of bankruptcy disputes,the following article analyzes the development basis of arbitration procedures to resolve bankruptcy disputes,and finally according to the development of China's arbitration procedures in bankruptcy dispute settlement combines the relevant provisions of China's bankruptcy law to sort out the coordination mechanism of China's bankruptcy and arbitration procedures,and points out the shortcomings,and uses this as a guide to the following discussion.Chapter2: " Coordination of bankruptcy and arbitration procedures on issues of jurisdiction ".This chapter analyzes the demarcation of centralized arbitration proceedings from bankruptcy,the effectiveness of arbitration agreements in bankruptcy proceedings,and the impact of bankruptcy administrators' choice of contract to be performed on the effectiveness of arbitration agreements.First,by introducing the delimitation of arbitration proceedings under the centralized jurisdiction system,it is clarified that the issue of jurisdiction between bankruptcy and arbitral proceedings is actually a matter of jurisdiction between the court and the arbitral institution.The principle of effective court rulings excluding court jurisdiction should be applied.Based on this,the following discusses the validity of the arbitration agreement,and finally discusses the possible impact of the bankruptcy administrator's right to choose the contract to be performed on the effectiveness of the arbitration agreement.Chapter 3: " Coordination of bankruptcy and arbitration procedures in the operation of procedures ".This chapter focuses on the rules of suspension and continuation of arbitration that have not yet ended after the acceptance of the bankruptcy application.It is divided into two aspects: the suspension of pending arbitration proceedings,the eligibility of the bankruptcy trustee and the continuation of arbitration proceedings.The coordination between "the interests of all creditors" and "the binding force on the conduct of arbitral proceedings" has been discussed as a train of thought.Chapter 4: " Coordination of bankruptcy and arbitration procedures in enforcement of arbitration awards ".This chapter discusses the impact of bankruptcy declaration on the enforcement of arbitral awards,that is,confirms that arbitral awards have the effect of(quasi)enforcement of nominal claims,and introduces the public policy considerations involved in arbitral awards,and then makes some reflections on the handling of the insolvency administrator's failure to confirm the bankruptcy claims of the arbitration award.Finally,in the aspect of international commercial arbitration,the recognition and enforcement of foreign commercial arbitration awards are discussed.