Insolvency in Commercial Arbitration : A German and International Perspective.

Format:

Book

Author/Creator:

van den Ven, Fabian.

Language:

English

Subjects (All):

Arbitration (International law).

Arbitration and award.

Physical Description:

1 online resource (317 pages)

Edition:

1st ed.

Place of Publication:

Alphen aan den Rijn : Wolters Kluwer Law International, 2023.

Summary:

This book, 'Insolvency in Commercial Arbitration: A German and International Perspective' by Fabian van de V en, provides an in-depth analysis of the intersection between insolvency law and commercial arbitration, focusing on both German national and international contexts. The text explores the theoretical frameworks and legal intricacies of insolvency proceedings, the impact on arbitration agreements, and the role of arbitrators within these proceedings. It examines how insolvency affects arbitration in Germany and internationally, covering relevant laws such as the European Insolvency Regulation, the UNCITRAL Model Law, and specific German insolvency codes. The book is intended for legal practitioners, scholars, and students interested in the complexities of insolvency law and its implications for arbitration, aiming to provide a comprehensive understanding of the subject matter through theoretical and practical insights. Generated by AI.

Contents:

Intro

Half-Title Page

Title Page

Copyright Page

Table of Contents

List of Abbreviations

Preface

Introduction

1 Topic

2 Objective, Scope and Method

3 Terminology

Chapter 1 Theoretical Background and Legal Framework

1 Insolvency in Germany

1.1 National Insolvency Framework

1.2 International Insolvencies

1.2.1 European Insolvencies: The EIR

1.2.2 Other International Insolvencies

1.2.3 The UNCITRAL Model Law on Cross-Border Insolvency

1.2.4 The UNCITRAL Model Law on Insolvency-Related Judgments

2 International Insolvency Theory

2.1 The Position of Insolvency Within a Legal Order

2.2 Territorialism

2.3 Universalism

2.4 The Practical Middle Ground

2.5 The German Approach

3 Arbitration in Germany

3.1 The Legal Framework

3.1.1 UNCITRAL Model Law on International Commercial Arbitration

3.1.2 The New York Convention

3.2 The Arbitration Agreement: The Basis for Arbitration

4 Arbitration Theory

4.1 The Jurisdictional Theory

4.2 The Contractual Theory and Delocalisation

4.3 The Hybrid Theory

4.4 The Autonomous Theory

5 Final Remark on the Theoretical Background and Framework

Chapter 2 Insolvency and Arbitration in the National Context: Germany

1 Arbitrability

1.1 Arbitrability and Public Policy

1.2 Objective and Subjective Arbitrability

1.3 Arbitrability in Germany

1.4 Arbitrability of Insolvency Disputes Generally

1.5 Arbitration of Insolvency Disputes in Germany

2 The Effect of Insolvency Proceedings on Arbitration

2.1 The Binding Power of Insolvency in the Seat Jurisdiction

2.1.1 The Relationship Between the Seat Jurisdiction and the Arbitration

2.1.2 Position and Analysis

i Localised or Delocalised Arbitration

ii Arbitration as the Performance of a Contract or Part of the Judicial Order.

2.2 Standing and Representation: The Administrator

2.2.1 Standing in the Arbitration Proceedings

2.2.2 The Administrator's Power to Enter into Arbitration Agreements

2.3 The Effect on the Proceedings

2.3.1 Stay of Proceedings

i The Functioning of 240 ZPO

ii Applicability to Arbitration

iii A Factual Stay of Proceedings

iv Analogous Application

2.3.2 Resumption of Proceedings

i Application of 180(2) InsO to Arbitration

ii The Functioning of 180(1) and (2) InsO: Continuation or New Proceedings

iii 180(1) and (2) InsO and Arbitration

2.3.3 Claim Registration and Object of the Proceedings

2.3.4 The Special Case of Liabilities of the Estate

2.3.5 The Scope of the Proceedings: Preliminary Questions

2.3.6 The Choice of Arbitrator

2.4 The Effect of the Dissolution of the Insolvent

2.5 Conclusion and Position

3 The Effect of Insolvency Proceedings on the Arbitration Agreement

3.1 The Nature of the Arbitration Agreement

3.2 The Validity of the Arbitration Agreement

3.3 Binding Power of the Arbitration Agreement

3.4 Incapability to Perform the Arbitration Agreement

3.5 Possibilities to Dissolve, Defunct or Challenge an Existing Arbitration Agreement

3.5.1 103 InsO: The Right to Choose

3.5.2 115 InsO: Expiration of Mandates

3.5.3 129-133 InsO: Contesting Pre-insolvency Transactions

3.5.4 314 BGB: Terminating Continuing Contracts for Compelling Reasons

3.6 The Effective Scope of the Arbitration Agreement in Insolvency

3.6.1 Rights of Separation and Separate Satisfaction

3.6.2 103 InsO: The Right to Choose

3.6.3 129-133 InsO: Insolvency Contestation

3.6.4 Insolvency Verification: 174 Et Seq. InsO

3.6.5 Insolvency Verification and Objecting Creditors

3.7 Conclusion on the Arbitration Agreement in Insolvency.

4 The Effect of the Insolvency Proceedings on the Arbitrator's Contract

4.1 The Nature of the Arbitrator's Contract

4.2 Possibilities to Dissolve, Defunct or Challenge an Existing Arbitrator's Agreement

4.2.1 103 InsO: The Administrator's Right to Choose

4.2.2 113 InsO: Dissolution of Service and Employment Contracts

4.2.3 115, 116, 117 InsO: Dissolution of Mandates, Agencies and Proxies

4.2.4 129-133 InsO: Insolvency Contestation

4.2.5 314, 626 et seq. BGB: Termination for Compelling Reason

4.3 Conclusion: Effect of the Insolvency on the Arbitrator's Contract

5 Effect of the Insolvency Proceedings on Post-award Proceedings and Awards

5.1 Awards Rendered Post-insolvency

5.2 Awards Rendered During the Insolvency Proceedings

5.2.1 Insolvency Claims

5.2.2 Claims Regarding Exception Rights and Debts Incumbent on the Estate

5.3 Non-enforced Pre-insolvency Awards

5.3.1 The Status of the Award

5.3.2 Disputing the Claim

5.4 Awards in Enforcement Proceedings

5.4.1 Suspension of the Proceedings

5.4.2 Resumption of the Proceedings

5.5 Awards in Annulment Proceedings

5.6 The Grounds for Annulment and Non-enforcement in Insolvency

5.7 Correction, Interpretation and Additional Award Proceedings

5.7.1 Suspension of Ongoing Proceedings

5.7.2 Resumption of Proceedings and the Original Award

5.7.3 The Status of Additional Awards in Insolvency

5.8 Enforced Awards

5.9 Awards and Execution Proceedings

5.10 Enforced and Performed or Executed Awards

5.11 Award in Favour of the Insolvency Debtor

5.12 Conclusion and Summary: Effects of the Insolvency on Post-arbitration Proceedings

6 Conclusory Remarks to Chapter 2

Chapter 3 Insolvency in Arbitration: International Aspects

1 Recognition of Insolvencies

1.1 Relevant Concepts of Recognition.

1.1.1 Recognition of Insolvency Rulings and Decisions

1.1.2 Recognition of the Substantive Effects of Insolvency

1.1.3 Recognition of Insolvency as a Fact

1.2 Recognition under the UNCITRAL Model Law on Cross-Border Insolvency

1.3 The European Insolvency Regulation

1.3.1 'Any judgment opening insolvency proceedings'

1.3.2 'handed down by a court of a Member State which has jurisdiction pursuant to Article 3'

1.3.3 'from the moment that it becomes effective in the State of the opening of proceedings'

1.3.4 Interim Conclusion: Recognition Based on the EIR

1.4 Recognition Based on the German Insolvency Code

1.4.1 'The Opening of a Foreign Insolvency Proceeding'

1.4.2 Unless the Court of Opening Is Not Competent under German Law

1.4.3 Unless It Constitutes a Violation of Public Order or Constitutional Rights

1.4.4 Interim Conclusion: Recognition Based on the German Insolvency Code

1.5 Recognition of Insolvency in Arbitration in General

1.5.1 Arbitration and Recognised 'Foreign' Insolvencies

1.5.2 Arbitration and Non-recognised 'Foreign' Insolvencies

i The Need for Recognition

ii The Ability to Recognise Foreign Insolvencies: Arbitrability and Scope

iii Applicable Law

iv Analysis

1.6 Recognition of Insolvency by Tribunals in Germany

1.6.1 Recognition in the Context of the InsO

1.6.2 Recognition in the Context of the EIR

1.7 Conclusion on the Recognition of Insolvencies in Arbitration

2 Conflict-of-Laws and Applicable Law in the Courts

2.1 The EIR

2.1.1 Conflict-of-Laws Rules

2.1.2 Coordination and Material Norms

2.1.3 The EIR and the Applicable Law to Insolvencies Effects on Arbitration and Related Issues

i Reference to National or International Insolvency Law

ii Preliminary Issues Regarding Article 18 EIR.

iii The Scope of Article 7(2)(e) and Its Relationship to 18 EIR

iv Law Applicable to Objective Arbitrability

v Law Applicable to the Arbitrator's Agreement

vi Law Applicable to the Award: Status in Insolvency, Annulment and Enforcement

vii Interim Conclusion: Arbitration and the EIR

2.2 German Autonomous International Insolvency Law

2.2.1 Conflict-of-Laws Rules

2.2.2 Coordination and Material Norms

2.2.3 German Autonomous International Insolvency Law and the Applicable Law to the Effects of the Insolvency

i Applicability of 335 InsO to Arbitration Agreements

ii Applicability of 352 InsO to Arbitration Proceedings

iii 335 and 352 InsO: The Syska v. Vivendi Question or Lack Thereof

vi The Law Applicable to Award: Status in the Insolvency and Annulment and Enforcement

vii Interim Conclusion: Arbitration and the German Autonomous International Insolvency Law

2.3 Conclusion on the Conflicts-of-Rules and Applicable Law in the Court

3 Conflict-of-Laws Rules Before the Tribunal

3.1 The Traditional Approach: Law of the Seat

3.2 The Autonomous Approach

3.3 Building an Autonomous Conflict-of-Laws Approach

3.3.1 Relevant Interests.

i Enforceability and Non-annulment

ii Legal Certainty, Predictability and Legitimate Expectations

iii Uniformity of Decisions

iv Neutrality

v Efficiency and Effectiveness

vi Final Remarks on Relevant Interests

3.3.2 Ex Nunc or Ex Tunc Interests: Changing Interests

3.3.3 Characterisation and Categorisation

3.4 Conclusion on the Conflict-of-Laws Rules Before a Tribunal

4 Applicable Law in the Arbitration

4.1 Applicable Law Within the Scope of the EIR

4.2 The Validity and Binding Power of the Arbitration Agreement.

4.3 The Competence to Enter into Arbitration Agreements.

Notes:

Description based on publisher supplied metadata and other sources.

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Other Format:

Print version: van den Ven, Fabian Insolvency in Commercial Arbitration

ISBN:

9789403500775

9403500778

OCLC:

1397570542