International Arbitration and Cross-Border Insolvency

Name: International Arbitration and Cross-Border Insolvency | Comparative Perspectives
Brand: Kluwer Law International
Price: 260.99 EUR
Availability: OnlineOnly

Comparative Perspectives

Simon Vorburger(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 19. September 2014

328 Seiten

E-Book

PDF mit Adobe-DRM

Systemvoraussetzungen

978-90-411-5446-0 (ISBN)

260,99 €inkl. 7% MwSt.

Systemvoraussetzungen

für PDF mit Adobe-DRM

E-Book Einzellizenz

Als Download verfügbar

Beschreibung

Weitere Details

Weitere Ausgaben

Inhalt

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
Dedication
Table of Contents
Foreword
Acknowledgments
List of Abbreviations
CHAPTER 1 Introduction
§1.01 INTRODUCTORY REMARKS
§1.02 CONTENT OF THE BOOK
[A] Scope of the Book
[B] Objectives of the Book
[C] Structure of the Book
CHAPTER 2 Background
§2.01 POLICIES UNDERLYING INTERNATIONAL ARBITRATION
[A] The Contractual Theory
[B] The Jurisdictional Theory
[C] The Hybrid Theory
[D] Interim Summary
§2.02 POLICIES UNDERLYING INSOLVENCY LAW
[A] Notion of Insolvency Law
[1] Terminology
[2] Content of National Insolvency Laws
[3] Common Principles of National Insolvency Laws
[B] Cross-Border Insolvency
[1] Universality versus Territoriality
[2] Classification of the Cross-Border Insolvency Laws Relevant to this Book
[a] UNCITRAL Model Law on Cross-Border Insolvency
[b] Council Regulation (EC) No 1346/2000 on Insolvency Proceedings
[c] Autonomous Cross-Border Insolvency Laws
[i] Comparative Overview
[ii] Switzerland
[C] Interim Summary
CHAPTER 3 Recognition of Insolvencies by National Courts
§3.01 TERMINOLOGY AND NOTIONS OF RECOGNITION
[A] Recognition in International Civil Procedural Law
[B] Recognition in International Private Law
[C] Recognition in Cross-Border Insolvency Law
[1] Notion of Insolvency-Specific Recognition
[a] Recognition of the Existence of a Foreign Insolvency Proceeding
[b] Determination of the Effects of the Recognition of an Insolvency
[2] Conclusion
[D] Interim Summary
§3.02 RECOGNITION OF AN INSOLVENCY IN A PROCEEDING BEFORE NATIONAL COURTS
[A] Law Applicable to the Recognition of an Insolvency
[B] Types of Recognition Used by National Courts in Connection with Insolvency
[1] Recognition According to Insolvency-Specific Recognition Rules
[2] Recognition According to Substantive Recognition
[3] Recognition According to Procedural Recognition
[4] Acknowledgment as a Fact
[C] Incidental Recognition of a Foreign Insolvency
[1] UN-InsModLaw Jurisdictions
[2] EuInsReg
[3] Autonomous Cross-Border Insolvency Laws
[a] France
[b] Germany
[c] Switzerland
[i] Case Law and Literature
[ii] Analysis
[D] Criteria for an Insolvency-Specific Recognition of Foreign Insolvencies
[1] Indirect Jurisdiction
[2] Public Policy
[3] Enforceability of Decision Commencing Insolvency in Country of Origin
[4] Reciprocity
[E] Determination of the Effects of a Recognition of Foreign Insolvencies
[F] Interim Summary
CHAPTER 4 Recognition of Insolvencies by Arbitral Tribunals
§4.01 CASE LAW AND LITERATURE
[A] Case Law
[1] Insolvency Commenced at the Seat of the Arbitration
[2] Insolvency Commenced outside the Seat of the Arbitration
[a] Limited Territorial Effects of Insolvencies
[b] Recognition According to Cross-Border Insolvency Law at Seat
[i] Recognition by Reference to Decision of National Court
[ii] Recognition by Autonomous Decision of Arbitral Tribunal
[c] Recognition of Mandatory Rules of lex fori concursus
[d] Principle of pacta sunt servanda
[e] Recognition of Insolvency as Fact
[3] Conclusion
[B] Literature
[1] Germany
[2] France
[3] Switzerland
[C] Interim Summary
§4.02 ANALYSIS
[A] Importance of Recognition as Necessary Preliminary Step
[B] Factors Requiring Recognition of Insolvency by an Arbitral Tribunal
[1] Direct Applicability of Insolvency Regime of Seat Country to Arbitral Tribunal
[a] Relation of International Arbitral Tribunals to National Territory of their Seat
[b] Direct Applicability of the Insolvency Regime of the Seat
[i] United States
[ii] England
[iii] France
[iv] Germany
[v] Switzerland
[2] Recognition based on Principles of Res Iudicata, Lis Pendens or Claim and Issue Preclusion
[a] Means to Coordinate Proceedings before National Courts
[b] Relevance in International Arbitration
[c] Applicability between Decisions Commencing an Insolvency and Arbitral Proceeding
[d] Conclusion
[3] Avoiding Subsequent Set-Aside of the Arbitral Award
[4] Duty to Render an Enforceable Arbitral Award
[5] Interim Summary
[C] Objective Arbitrability of Recognition of Insolvencies
[1] Objective Arbitrability in General
[a] Terminology
[b] Applicable Law
[2] Forms of Recognition Arising in Connection with Arbitration
[3] UN-InsModLaw Countries
[a] United States
[i] Arbitrability of Insolvency Law Actions
[ii] Arbitrability of Recognition of an Insolvency
[b] England
[i] Arbitrability of Insolvency Law Actions
[ii] Arbitrability of the Recognition of an Insolvency
[4] EuInsReg Countries
[a] Recognition of Insolvency Commenced in Non-EuInsReg Member State
[i] Germany
[ii] France
[iii] England
[b] Recognition of Insolvency Commenced in EuInsReg Member State
[5] Switzerland
[a] Arbitrability of Insolvency Law Actions
[i] Insolvency Law Actions as Pecuniary Claims
[ii] Concepts Limiting General Arbitrability of Insolvency Law Actions
[b] Arbitrability of Swiss Insolvency Law Actions
[c] Arbitrability of Recognition of an Insolvency
[i] Arbitrability of Formal Recognition of an Insolvency
[ii] Arbitrability of Incidental Recognition of an Insolvency
[6] Interim Summary
[D] Applicable Law to the Recognition of an Insolvency
[1] Possible Laws Applicable to the Recognition of Insolvency
[2] Significance of the Seat Perspective of the Arbitral Tribunal
[3] Conclusion for the Law Applicable to the Recognition
[4] Criteria for Recognition of an Insolvency by Arbitral Tribunals
[a] UN-InsModLaw
[b] EuInsReg
[c] Switzerland
[i] Adaption of Recognition Rules of Cross-Border Insolvency Law
[ii] Conditions for Recognition of an Insolvency
[5] Interim Summary
CHAPTER 5 Determining the Law Applicable to the Effects of an Insolvency
§5.01 MANDATE TO DETERMINE APPLICABLE LAW
[A] National Courts
[B] Arbitral Tribunals
[C] Interim Summary
§5.02 METHODS TO DETERMINE THE LAW APPLICABLE
[A] Choice of the Applicable lex concursus by the Parties
[B] Conflict-of-Law Approaches in Connection with Insolvency Law
[1] Insolvency-Specific Conflict-of-Law Approach
[2] Traditional Conflict-of-Law Approach
[3] Lex fori concursus as Mandatory Rules
[C] Characterization as Starting Point
[1] Significance of Characterization in Connection with Insolvency Issues
[2] Standard of Characterization in Connection with Insolvency Law Issues
[a] Lex fori
[b] Lex causae
[c] Comparative and Functional Approaches
[d] Conclusion
[D] Interim Summary
CHAPTER 6 Specific Effects of a Commencement of an Insolvency on International Arbitration
§6.01 EFFECTS OF INSOLVENCY ON ARBITRATION AGREEMENTS
[A] Distinction between Validity and Scope of an Arbitration Agreement
[B] Validity of Arbitration Agreement
[1] Comparative View
[2] Switzerland
[3] Interim Summary
[C] Scope of Arbitration Agreement ratione personae
[1] Binding Effect of Arbitration Agreements Upon Commencement of Insolvency
[a] United States
[b] Germany
[c] England
[d] France
[e] Switzerland
[i] Case Law
[ii] Literature
[iii] Analysis
[f] Interim Summary
[2] Executory Contracts as Means to Opt Out of Arbitration Agreements
[a] Executory Contract Provisions
[i] Comparative View
[ii] Switzerland
[b] Effect of Rejection of Executory Contracts on Arbitration Agreements
[i] Comparative View
[ii] Switzerland
[c] Interim Summary
[D] Scope of Arbitration Agreement ratione materiae
[1] Difficulties in the Insolvency Law Context
[2] Determination of Scope ratione materiae in the Insolvency Context
[a] United States
[b] Germany
[c] England
[d] France
[e] Switzerland
[i] Case Law
[ii] Literature
[iii] Analysis
[3] Interim Summary
[E] Applicable Law
[1] Possible Conflict-of-Law Approaches in Connection with the Validity and Scope of an Arbitration Agreement
[a] Traditional Conflict-of-Law Approach
[b] Insolvency-Specific Conflict-of-Law Approach
[c] Lex fori concursus as Mandatory Rules
[2] Approaches Under Cross-Border Insolvency Regimes
[a] EuInsReg
[i] Pending Arbitration at the Time of Commencement of Insolvency
[ii] No Pending Arbitration at the Time of Commencement of Insolvency
[b] UN-InsModLaw
[c] Switzerland
[i] Conflict-of-Law Approach in Connection with Insolvency
[ii] Arbitration Agreement Providing for Arbitration in Switzerland
[iii] Arbitration Agreement Providing for Arbitration Outside of Switzerland
[iv] Application of lex fori concursus as Mandatory Rule
[3] Interim Summary
§6.02 EFFECTS OF THE INSOLVENCY ON THE CAPACITY OF THE PARTIES TO ARBITRATION
[A] Impact of Insolvency on Capacity of Parties
[1] Notion of Capacity
[2] Effect of Insolvency on Capacity
[a] Effects of an Insolvency on the Substantive Notion of Capacity
[b] Effects of an Insolvency on the Procedural Notion of Capacity
[c] No Effects of the Insolvency on the Debtor's Capacity
[d] Provisions Explicitly Depriving Capacity to be Party to Arbitration
[e] Conclusion
[3] Delimitations
[a] Authority
[i] In General
[ii] Significance in Connection with Insolvency and Arbitration
[b] Standing to Sue or to Be Sued (Aktivlegitimation / Passivlegitimation)
[i] In General
[ii] Significance in Connection with Insolvency and Arbitration
[4] Interim Summary
[B] Effect of Issues of Incapacity on Arbitration
[1] Arbitration Agreements Concluded after the Commencement of an Insolvency
[2] Arbitration Agreements Concluded before the Commencement of an Insolvency
[a] Effect of Incapacity on Arbitration Agreement
[b] Effect of Incapacity on Arbitral Proceedings
[c] Effect of Incapacity on Recognition and Enforcement of Arbitral Award
[3] Interim Summary
[C] Applicable Law
[1] Possible Conflict-of-Law Approaches in Connection with Capacity of a Party Subject to Insolvency
[a] Traditional Conflict-of-Law Approach
[i] Application of the International Private Law Rules of the Seat of the Arbitral Tribunal
[ii] Direct Application of a Substantive International Capacity Rule
[iii] Application of Closest Connection Rule
[iv] Application of Conflict Rules Applicable to the Substantive Validity of Arbitration Agreements
[v] Application of a in favorem validitatis rule
[vi] Principles Preventing the Application of Inadequate Capacity Provisions
[b] Insolvency-Specific Conflict-of-Law Approach
[c] Lex fori concursus as Mandatory Rules
[2] EuInsReg
[3] UN-InsModLaw
[a] United States
[b] England
[4] Switzerland
[a] Literature
[b] Case Law
[c] Analysis
[i] Evolving Practice of the Swiss Federal Supreme Court
[ii] Problems in Connection with the Reliance on General Incapacity Provisions in an Insolvency Context
[iii] Suggested Conflict-of-Law Approach for Issues of Capacity in Connection with Insolvency
[5] Interim Summary
§6.03 SUSPENSION OF ARBITRAL PROCEEDINGS DUE TO AN INSOLVENCY
[A] Automatic Stay Provisions in Insolvency Laws
[1] United States
[2] Germany
[3] England
[4] France
[5] Switzerland
[a] Case Law and Literature
[b] Analysis
[i] Purpose of Article 207 SchKG
[ii] Article 207 SchKG and Public Policy
[iii] Application of Article 207 SchKG to International Arbitration
[6] Interim Summary
[B] Applicable Law
[1] Possible Conflict-of-Law Approaches in Connection with the Stay of Arbitral Proceedings
[a] Traditional Conflict-of-Law Approach
[b] Insolvency-Specific Conflict-of-Law Approach
[c] Lex fori concursus as Mandatory Rules
[2] EuInsReg
[3] UN-InsModLaw
[4] Switzerland
[a] Case Law and Literature
[b] Analysis
[i] Insolvency-Specific Conflict-of-Law Approach
[ii] Traditional Conflict-of-Law Approach
[iii] Application of lis pendens Rules Requiring Suspension of Arbitration
[iv] Lex fori concursus as Mandatory Provisions
[5] Interim Summary
CHAPTER 7 Effects of an Insolvency on the Recognition and Enforcement of International Arbitral Awards
§7.01 SIGNIFICANCE OF ENFORCEMENT PROCEEDINGS IN CONNECTION WITH PARTIES SUBJECT TO INSOLVENCY
§7.02 GROUNDS OPPOSING THE RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
[A] Legal Framework
[1] Arbitral Awards Rendered in Country of Recognition and Enforcement
[2] Arbitral Awards Rendered outside the Country of Recognition and Enforcement
[3] Consequences for Arbitral Awards in the Insolvency Context
[4] Interim Summary
[B] Grounds for Non-recognition of Arbitral Awards in the Insolvency Context
[1] Validity and Scope of Arbitration Agreement (Article V(1)(a),(c) NYC)
[a] Delimination between Article V(1)(a) NYC and Article V(1)(c) NYC
[b] Validity of Arbitration Agreement (Article V(1)(a) NYC)
[i] Applicable Law
[ii] Consequences for Arbitral Awards in the Insolvency Context
[c] Scope of the Arbitration Agreement (Article V(1)(c) NYC)
[i] Applicable Law
[ii] Consequences for Arbitral Awards in the Insolvency Context
[d] Interim Summary
[2] Capacity of the Parties (Article V(1)(a) NYC)
[a] Ambiguities in the Insolvency Context
[b] Unusual Legislative History of Article V(1)(a) NYC
[c] Scope of the Incapacity Defense under New York Convention
[i] In General
[ii] Application of Incapacity Defense to Cases of Insolvency
[d] Relevant Point in Time
[i] Article V(1)(a) NYC
[ii] Proper Representation under Article V(1)(b) NYC
[e] Applicable Law
[f] Interim Summary
[3] Objective Arbitrability (Article V(2)(b) NYC)
[a] Notion of Arbitrability under the New York Convention
[b] Applicable Law
[c] Objective Arbitrability of Insolvency Law Matters
[d] Interim Summary
[4] Public Policy (Article V(2)(b) NYC)
[a] Significance of Public Policy in Connection with Arbitral Awards Involving a Party Subject to Insolvency
[b] Public Policy under the New York Convention
[i] Applicable Law
[ii] Notion of Public Policy
[iii] Delimination between Public Policy and Objective Arbitrability
[c] Insolvency Law and Public Policy
[i] England
[ii] France
[iii] United States
[iv] Germany
[v] Switzerland
[d] Interim Summary
§7.03 EFFECTS OF INSOLVENCY ON LOCAL ENFORCEMENT PROCEDURE
[A] Applicable Law
[B] Significance of Territorial Effects of Insolvency in Country of Enforcement
[1] Territorial Effects of Insolvency in Country of Enforcement
[2] No Territorial Effects of Insolvency in Country of Enforcement
[C] Effects of an Insolvency on Local Recognition and Enforcement Procedure of International Arbitral Awards
[1] United States
[2] England
[3] Germany
[4] France
[5] Switzerland
[a] Insolvency Not Recognized in Switzerland
[i] Enforcement Proceedings by a Creditor
[ii] Enforcement Proceedings by a Foreign Trustee
[b] Insolvency Initially Commenced or Recognized in Switzerland
[i] Preclusion of Individual Actions Seeking Enforcement of Arbitral Award
[ii] Collective Enforcement of Arbitral Awards Issued after Commencement of Insolvency
[iii] Collective Enforcement of Arbitral Award Issued before Commencement of Insolvency
[D] Interim Summary
CHAPTER 8 Summary and Conclusion
§8.01 SUMMARY OF THE RESULTS
§8.02 CONCLUSORY REMARKS AND PROSPECTS
Bibliography
Materials and Other Sources
Table of Cases
Index
Back Cover

Systemvoraussetzungen

Als PDF speichern Als Link merken