국제중재절차와 국제도산절차의 경합

The Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on Insolvency Proceedings(recast)(the recast EU Insolvency Regulation) reforms the previous EU Insolvency Regulation to enhance the effective administration of cross-border insolvency proceedings. In particular, with regard to the conflicts of law, the recast EU Insolvency Regulation prescribes what applicable law will govern the insolvency proceedings. The principle is that the insolvency laws of the opening court will apply to the insolvency proceedings(lex fori concursus). However, In relation to the impact of insolvency of a party on pending arbitration proceedings, the recent decision gives the law of the seat of the arbitration a more prominent role and the recast EU Insolvency Regulation also stipulates that the effects of insolvency proceedings on pending arbitral proceedings concerning an asset or a right which forms part of a debtor’s insolvency estate shall be governed by the law of the Member State in which the arbitral tribunal has its seat. Insolvency and arbitration are based on opposing principles and object. In recent years, there are conflicts in many ways, such as in literature, in arbitral awards and court decisions. Although Some cases presented approach to resolve the issues, especially as regards the question of which law should the effects of the insolvency of a party on pending arbitral proceedings, many questions still remain open in a cross-border setting. This article will deal with the relationship between pending arbitral proceedings and the insolvency of one of the parties involved. More specially, there are following issues; what rules govern conflicts between arbitration in one country and insolvency proceedings in another country? and should arbitration proceedings continue despite one party having become insolvent? This article attempts to provide an approach of the various choice of laws and characterization problems by analyzing the test of the recent case law of various national courts regarding the cross-border effect of the insolvency where one party has been declared insolvent in a State other than the one where the arbitral proceedings are being held. Consequently, in the light of the above mentioned case law and the recast EU Insolvency Regulation revolved, the author will search for an appropriate approach to resolve the issues rising from the conflict between insolvency and arbitration in a cross-border context.