IMPACT OF EU INSOLVENCY REGULATION ON PROCESS OF RESOLVING DISPUTES BEFORE INTERNATIONAL COMMERCIAL ARBITRATION

Abstract

The insolvency law contains summary processes for dealing with claims and protections against certain proceedings being initiated or continued. There has been some debate, as well as the recent case law, concerning the primacy of these rules over court proceedings and arbitration agreements. In the following article, we look at what the current position of Insolvency Regulation 2015/ 845 under EU law is, and we consider the relation between the arbitration and the insolvency proceedings and the impact on the arbitration agreement. Furthermore, we will discuss the differences between the EC Regulation 1346/2000 and the EU Insolvency Regulation 2015 /848. The first part will be dedicated to how the arbitration agreement and the Regulation relate. In the past, the initiation of insolvency procedure rendered the arbitration agreement null and void in some member states. Such cases happened under the Polish and Spanish national laws. Therefore, the case Elektim v. Vivendi will be discussed as an example. Moreover, the current situation in those countries will be analyzed. The second part of this paper analyzes the effects of the insolvency on the pending arbitration proceedings. A subject of discussion will also be the question of whether the arbitration procedure must be terminated or continued. A comparative analysis shows that some national laws provide for a compulsory termination of arbitration proceedings, while another group of countries allows for the continuation of the arbitration process. In the third part, we will examine the amendments of the EC Regulation 1346/2000 adopted and implemented in the EU Regulation. We will try to analyze what changes there are and what their impact is on the arbitration proceedings. In conclusion, all the arguments discussed in the paper will be summarized.