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Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

The impact of declaring bankruptcy in Poland on foreign arbitration proceedings

Piotr Rodziewicz

Published: 30-06-2011 | Abstract | pp. 57-82

The issue of the insolvency impact on arbitration is complicated, because it needs delve to different areas of law namely, the law on international arbitration, international insolvency law and private international law. It makes a number of problems both theoretical and practical, expression of this are court decisions and statements in the literature. Purpose of this study is an attempt to answer on some problems related to issues mentioned above. Paper presents basic principles of international insolvency proceedings, which play a crucial role from the standpoint of the impact of insolvency on the pending arbitration. Considerations carried out in the article have been divided into two groups, the first impact of insolvency commenced in Poland on pending arbitration in other EU Member State and the second impact of insolvency commenced in Poland on pending arbitration in the third country. Therefore in the article has been presented model of the recognition of foreign insolvency proceedings based on Regulation 1346/2000 and also there have been presented European conflict of law rules which indicate the insolvency statute. In article is also discussed application of international insolvency rules by arbitration courts.

2011-06-30



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Determination of the applicable law for challenging legal acts of the bankrupt made to the detriment of creditors on the basis of the Regulation of the European Parliament and of the Council (EU) No. 2015/848 of May 20, 2015 on insolvency proceedings

Robert Obrzud

Published: 31-12-2017 | Abstract | pp. 95-108

The appointment of the applicable law to appeal against fraudulent acts of a bankrupt in cross-border insolvency proceedings is a complex process that is not uniformly accepted by law. The application of the statute of lex fori concursus in relation to the principles of nullity, appealing or relative ineffectiveness of legal acts performed against the general creditors does not raise any objections and is accepted due to the effectiveness and efficiency of the bankruptcy proceedings. Mechanism which is based on art. 16 of the Regulation 2015/848 provides the possibility of raising a charge of subordination of a given act to a law other than the law lex fori concursus, which allows the absolute subordination of this act to the law of the state of proceedings, despite the lex causae law. The appointment of the applicable law to the legal act has not been uniformly implemented so far. As a result of this, there were two views, one of which allowed the application of conflict‑of‑law rules in the lex fori concursus state, contrary to this view pointed the necessity to apply to the private law rules of private international law according to the country of the court of competent jurisdiction. Currently, matters related to appealing against bankruptcy are subject to the jurisdiction of the court with jurisdiction to initiate proceedings, which results in recognition that applicable law will be determined by the state’s conflict‑of‑law rules of instituting bankruptcy proceedings, which in turn serves predictability of the law and its effectiveness.

2017-12-31