Cross-Border Insolvency and International Commercial Arbitration ('Insolvencia transfronteriza y arbitraje comercial internacional')

PhD Thesis, University of Valencia (Summa cum laude), 2015

25 Pages Posted: 14 Nov 2019 Last revised: 17 Nov 2019

Date Written: July 31, 2015

Abstract

This thesis argues that one of the main reasons why the interaction between insolvency and international arbitration remains an intriguing intersection is the absence of a unified choice-of-law method that identifies the relevant law that should govern the effects of insolvency on the arbitration agreements, proceedings and awards of the insolvent party. Currently, the private international law methodologies of international arbitration and insolvency simply coexist, sometimes overlap and frequently fail to provide a clear path of analysis for arbitral tribunals and national courts. As a result, those tribunals and courts are frequently faced with two different (and sometimes colliding) methodologies as to how they should resolve the challenges posed by the insolvency of a party to arbitration. The analysis of this clash is a central part of my study. The thesis then designs a comprehensive solution applicable to arbitrators and courts.

Very succinctly, the model proposes that the insolvency choice-of-law rules of the seat should be included in the lex loci arbitri. As such, arbitrators should apply those rules to identify the law applicable to the jurisdictional and procedural effects generated by the commencement of insolvency proceedings. Together with the use of the principle of normative hierarchy, this interpretation would align arbitral and judicial methodologies and would contribute to the desired identity of outcome between courts and tribunals.

From a pragmatic point of view, this means that the effects of insolvencies covered by the European Insolvency Regulation or the Spanish Insolvency Act should be governed by the lex fori concursus or to the lex loci arbitri depending the pendency of arbitration at the time of the opening of the insolvency proceedings. In contrast, when the seat of the arbitration is located in a jurisdiction that has adopted the UNCITRAL Model Law on cross-border insolvencies, the effect of foreign insolvencies in arbitration will be governed by the lex loci arbitri.

The success of this model would be facilitated by the adoption of an international instrument. UNCITRAL is the best positioned organisation to produce this instrument, either by way of amendment to one of its Model Laws in arbitration or insolvency, or by way of a Toolkit for arbitrators. In addition, the IBA has demonstrated a leading role in the field of international dispute resolution and would be well-equipped to prepare a set of Guidelines recommending the proposed model. The thesis suggests that, if a fully-developed model is not achievable in the near future, one of these international organisations should publish a Toolkit that helps arbitrators and parties identify the most common issues raised by the insolvency of a party to arbitration and contributes toward the harmonisation of the method of legal analysis of those issues. The thesis contains the text of the proposed Toolkit.

Note: Downloadable document is in English. Full text of the PhD thesis available on request.

Keywords: arbitration, insolvency, EU law, New York convention

Suggested Citation

Penades, Manuel, Cross-Border Insolvency and International Commercial Arbitration ('Insolvencia transfronteriza y arbitraje comercial internacional') (July 31, 2015). PhD Thesis, University of Valencia (Summa cum laude), 2015, Available at SSRN: https://ssrn.com/abstract=3472328 or http://dx.doi.org/10.2139/ssrn.3472328

Manuel Penades (Contact Author)

King's College London ( email )

Strand, Somerset Hous
The Dickson Poon School of Law King's College Lond
London, WC2R 2LS
United Kingdom

HOME PAGE: http://kclpure.kcl.ac.uk/portal/manuel.penades_fons.html

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
310
Abstract Views
1,015
Rank
178,637
PlumX Metrics