Cooperation in cross-border insolvency: The case of protocols
Abstract: Predmet rada su stečajni protokoli kao osoben izvor stečajnog prava. Reč je sporazumima između učesnika u stečajnom postupku kojima se rešavaju brojna značajna pitanja u cilju ostvarivanja saradnje i komunikacije među učesnicima. Protokoli su karakteristični za međunarodni stečaj i njima se nastoje prevazići razlike između pravnih sistema koje mogu biti značajna prepreka ostvarivanju najvećeg mogućeg namirenja poverilaca ili efikasnom sprovođenju postupka reorganizacije. Poseban značaj ovog instrumenta uočava … Show more
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Based on trust and practiced since Antiquity, arbitration is one of the oldest approaches to dispute resolution. Initially, it was used to resolve issues between states but, over time, it was employed to settle disputes between natural persons as well. In the ancient Athenian state, arbitration was included in Solon’s reforms while, later, Aristotle wrote about the distinction between a judge and an arbiter. Some of his insights hold true to this day, such as his observation of the essential role trust plays in arbitration. It is trust in the arbiters they have chosen that permits the disputing parties to transfer their rights pertaining to said dispute to the arbiters, who then – acting as private persons in a special (arbitral) process – render a decision that resolves the dispute based on what is fair. Eventually, arbitration evolved from a wise method of mediation and reconciliation into an authoritative, institutionalized mechanism for solving a wide array of disputes, including complex, high-value cases – which entailed defining procedural rules based on conscientiousness and honesty. With the development of cross-border commerce, however – and despite arbitration’s universal applicability as a special and readily-accepted means of resolving commercial disputes – the relevant rules of lex arbitri have never been fully harmonized or unified. Efforts to create uniform procedural rules have not progressed beyond projects defining the principles of the arbitration process. The reason for this lack of procedural harmonization and consolidation should foremost be sought in the essentially private nature of arbitration and in the differences in how it is conceptualized by national legislations. This monograph has, therefore, endeavored to systematize existing national solutions and practical knowledge and experience in one significant legal area – international commercial arbitration proceedings – which, thus far, has not been comprehensively analyzed in Serbian-language professional literature. Specifically, the book aims to determine and define the guiding principles for applying arbitration effectively, given that – as will be repeatedly emphasized – arbitral proceedings constitute the ‘heart’ of arbitration. To accomplish this, it is first necessary to thoroughly define what arbitration proceedings entail. This work assumes the widely-accepted explication that arbitration proceedings comprise a system of legal procedures and actions undertaken by the arbitration court and other involved participants pertaining to the resolution of the arbitrated dispute as regulated by the rules of arbitral procedural law. The objective of the arbitration proceedings is to enable the arbitration process between the primary and secondary participants in a dispute. The primary actors are the disputing parties and arbiters, while secondary relations are forged between the arbitration court and a variety of third parties. According to the arbitration agreement – which is the basis for initiating arbitration – the default disputing parties in the arbitration proceedings are the agreement’s signatories. In two-party arbitration, said parties comprise the claimant and respondent. In cases of complex, multiparty arbitration, however, the proceedings include not only the agreement signatories but also third parties through intervention or joinder, whereby one side in the proceedings comprises multiple subjects. Thus, particular care has been taken to differentiate between complex and classic arbitration and to discuss the fundamental question of whether an arbitration agreement, as an expression of accord between its signatories, can legally compel third parties to participate in the arbitration process? In material terms, arbitration proceedings entail procedural and legal actions taken by the arbiters, who are organized into an arbitral court, toward realizing the subjective rights of all the parties involved in the dispute. As a process, arbitration has a beginning, duration and end, the latter of which coincides with the passing of the arbitral decision. Applicable law plays an important role not only in the assessment of the merit of a dispute and its lex contractus but also in how the arbitration proceedings will unfold and conclude. In practice, the outcome of a dispute may depend on both where the proceedings are taking place and what applicable law was stated in the arbitration agreement. The implication is that business subjects should not elect the seat of arbitral proceedings lightly or “by default” but rather with a consideration of their own best interests. In terms of content, arbitration proceedings – not unlike court proceedings – serve to allow the disputing parties to present their positions, based on which the arbiters will draw their own conclusions and reach a decision on the dispute. It is understood that the arbitrators shall conduct a fair and legal process while abiding by the numerous rules and principles which govern arbitration. This monograph takes a closer look at four core principles: party autonomy, the right to be heard, equal treatment and the principle of contradiction. According to the principle of party autonomy, the disputing parties are free to choose whether, when and how they will initiate an arbitral process and to determine the rules of such proceedings. During the proceedings, the arbitrators employ argumentative and investigative principles to resolve the dispute. They are also obliged to provide each party with the opportunity to comment on the demands of the other, as well as on the information provided by witnesses and experts – i. e. to honor the principles of equality and the right to be heard. Two other arbitral principles touched upon in this monograph are confidentiality and expediency. The former sets arbitration apart from court proceedings. The latter allows arbiters to conflate multiple disputes between the same parties into one arbitral process. Both principles are part of the overarching tenet of due process in arbitration. Significant attention has also been given to the operationalization of arbitration agreements. An arbitration agreement is operationalized and transmuted into arbitral proceedings through the formation of an arbitral tribunal, which is initiated once a claim or request for arbitration has been filed. Since the disputing parties often cannot agree in their choice of arbiters, the formation of arbitral tribunals represents the ‘Achilles heel’ of the entire arbitration process and frequently necessitates the assistance of an appointing body. In the selection of arbiters, the disputing parties or appointing bodies must ensure that their nominees are both objective and independent. In contemporary arbitral law, an arbiter’s citizenship is not considered a limitation to his or her eligibility. With regards to their temporal aspect, arbitration proceedings are herein discussed as the period between the commencement and conclusion of the arbitral process, during which all the actors involved can take action influencing the arbitration. Said actions may result in the passing of a final award but may also hinder or permanently stop the proceedings. The first step involved in the complex and cumulative process of arbitration is the filing of a Notice of Arbitration or Statement of Claim, which is followed by the formation of an arbitral court (tribunal). The final step in the arbitration process is the passing of the arbitral decision. Once a dispute arises, arbitration proceedings must be launched in a timely manner, in keeping with legal or agreed upon preclusion and limitation deadlines. The process itself must unfold according to the Terms of Reference. The filing of a claim and commencement of arbitration proceedings yield both material and procedural consequences. The latter entail the formation of a special procedural relationship between the claimant and the arbitral court. Within this relationship, all parties assume rights and responsibilities which grant the arbiters the authority to resolve the dispute. The material consequences pertain to the fact that the filing of a claim halts the progression of the limitations period, the preclusion period, and the calculation of arrears in cases where no fulfillment deadline was set, while, at the same time, the calculation of default interest etc. commences. Throughout the proceedings, the arbitral tribunal is obligated to ensure its actions focus solely on the issue(s) it was called upon to resolve. The disputing parties may draw attention to instances of the arbitral court acting ultra vires as long as this is done within the timeframe prescribed for objections. Otherwise, the award passed by the arbitral tribunal may be overturned by a national court. An arbitrator’s mandate expires once an arbitral decision has been reached, either resolving the dispute or ordering the discontinuance of the proceedings. In addition to the circumstances warranting discontinuance, arbitration proceedings may also be terminated if the disputing parties have reached a settlement. Once it has been passed, the arbitral decision applies to all the participants of the arbitration proceedings. It is final and cannot be appealed. The decision becomes binding for the disputing parties from the moment it has been served and, with regards to the issues it addresses, it is considered res judicata – equivalent to a legally binding ruling made by a state court. The recent evolution of arbitration into the dominant mechanism for resolving commercial disputes indicates that the subject of arbitration bears investigation. Based on an in-depth analysis of arbitration proceedings, it can be concluded that the disputing parties’ will and choice of applicable law can significantly impact the outcome of the arbitral process. Given the lack of cohesive rules regulating arbitration proceedings, this monograph has attempted to collect and appropriately analyze the relevant existing rules employed by arbitral institutions as well as the recommended rules for ad hoc arbitration.
Based on trust and practiced since Antiquity, arbitration is one of the oldest approaches to dispute resolution. Initially, it was used to resolve issues between states but, over time, it was employed to settle disputes between natural persons as well. In the ancient Athenian state, arbitration was included in Solon’s reforms while, later, Aristotle wrote about the distinction between a judge and an arbiter. Some of his insights hold true to this day, such as his observation of the essential role trust plays in arbitration. It is trust in the arbiters they have chosen that permits the disputing parties to transfer their rights pertaining to said dispute to the arbiters, who then – acting as private persons in a special (arbitral) process – render a decision that resolves the dispute based on what is fair. Eventually, arbitration evolved from a wise method of mediation and reconciliation into an authoritative, institutionalized mechanism for solving a wide array of disputes, including complex, high-value cases – which entailed defining procedural rules based on conscientiousness and honesty. With the development of cross-border commerce, however – and despite arbitration’s universal applicability as a special and readily-accepted means of resolving commercial disputes – the relevant rules of lex arbitri have never been fully harmonized or unified. Efforts to create uniform procedural rules have not progressed beyond projects defining the principles of the arbitration process. The reason for this lack of procedural harmonization and consolidation should foremost be sought in the essentially private nature of arbitration and in the differences in how it is conceptualized by national legislations. This monograph has, therefore, endeavored to systematize existing national solutions and practical knowledge and experience in one significant legal area – international commercial arbitration proceedings – which, thus far, has not been comprehensively analyzed in Serbian-language professional literature. Specifically, the book aims to determine and define the guiding principles for applying arbitration effectively, given that – as will be repeatedly emphasized – arbitral proceedings constitute the ‘heart’ of arbitration. To accomplish this, it is first necessary to thoroughly define what arbitration proceedings entail. This work assumes the widely-accepted explication that arbitration proceedings comprise a system of legal procedures and actions undertaken by the arbitration court and other involved participants pertaining to the resolution of the arbitrated dispute as regulated by the rules of arbitral procedural law. The objective of the arbitration proceedings is to enable the arbitration process between the primary and secondary participants in a dispute. The primary actors are the disputing parties and arbiters, while secondary relations are forged between the arbitration court and a variety of third parties. According to the arbitration agreement – which is the basis for initiating arbitration – the default disputing parties in the arbitration proceedings are the agreement’s signatories. In two-party arbitration, said parties comprise the claimant and respondent. In cases of complex, multiparty arbitration, however, the proceedings include not only the agreement signatories but also third parties through intervention or joinder, whereby one side in the proceedings comprises multiple subjects. Thus, particular care has been taken to differentiate between complex and classic arbitration and to discuss the fundamental question of whether an arbitration agreement, as an expression of accord between its signatories, can legally compel third parties to participate in the arbitration process? In material terms, arbitration proceedings entail procedural and legal actions taken by the arbiters, who are organized into an arbitral court, toward realizing the subjective rights of all the parties involved in the dispute. As a process, arbitration has a beginning, duration and end, the latter of which coincides with the passing of the arbitral decision. Applicable law plays an important role not only in the assessment of the merit of a dispute and its lex contractus but also in how the arbitration proceedings will unfold and conclude. In practice, the outcome of a dispute may depend on both where the proceedings are taking place and what applicable law was stated in the arbitration agreement. The implication is that business subjects should not elect the seat of arbitral proceedings lightly or “by default” but rather with a consideration of their own best interests. In terms of content, arbitration proceedings – not unlike court proceedings – serve to allow the disputing parties to present their positions, based on which the arbiters will draw their own conclusions and reach a decision on the dispute. It is understood that the arbitrators shall conduct a fair and legal process while abiding by the numerous rules and principles which govern arbitration. This monograph takes a closer look at four core principles: party autonomy, the right to be heard, equal treatment and the principle of contradiction. According to the principle of party autonomy, the disputing parties are free to choose whether, when and how they will initiate an arbitral process and to determine the rules of such proceedings. During the proceedings, the arbitrators employ argumentative and investigative principles to resolve the dispute. They are also obliged to provide each party with the opportunity to comment on the demands of the other, as well as on the information provided by witnesses and experts – i. e. to honor the principles of equality and the right to be heard. Two other arbitral principles touched upon in this monograph are confidentiality and expediency. The former sets arbitration apart from court proceedings. The latter allows arbiters to conflate multiple disputes between the same parties into one arbitral process. Both principles are part of the overarching tenet of due process in arbitration. Significant attention has also been given to the operationalization of arbitration agreements. An arbitration agreement is operationalized and transmuted into arbitral proceedings through the formation of an arbitral tribunal, which is initiated once a claim or request for arbitration has been filed. Since the disputing parties often cannot agree in their choice of arbiters, the formation of arbitral tribunals represents the ‘Achilles heel’ of the entire arbitration process and frequently necessitates the assistance of an appointing body. In the selection of arbiters, the disputing parties or appointing bodies must ensure that their nominees are both objective and independent. In contemporary arbitral law, an arbiter’s citizenship is not considered a limitation to his or her eligibility. With regards to their temporal aspect, arbitration proceedings are herein discussed as the period between the commencement and conclusion of the arbitral process, during which all the actors involved can take action influencing the arbitration. Said actions may result in the passing of a final award but may also hinder or permanently stop the proceedings. The first step involved in the complex and cumulative process of arbitration is the filing of a Notice of Arbitration or Statement of Claim, which is followed by the formation of an arbitral court (tribunal). The final step in the arbitration process is the passing of the arbitral decision. Once a dispute arises, arbitration proceedings must be launched in a timely manner, in keeping with legal or agreed upon preclusion and limitation deadlines. The process itself must unfold according to the Terms of Reference. The filing of a claim and commencement of arbitration proceedings yield both material and procedural consequences. The latter entail the formation of a special procedural relationship between the claimant and the arbitral court. Within this relationship, all parties assume rights and responsibilities which grant the arbiters the authority to resolve the dispute. The material consequences pertain to the fact that the filing of a claim halts the progression of the limitations period, the preclusion period, and the calculation of arrears in cases where no fulfillment deadline was set, while, at the same time, the calculation of default interest etc. commences. Throughout the proceedings, the arbitral tribunal is obligated to ensure its actions focus solely on the issue(s) it was called upon to resolve. The disputing parties may draw attention to instances of the arbitral court acting ultra vires as long as this is done within the timeframe prescribed for objections. Otherwise, the award passed by the arbitral tribunal may be overturned by a national court. An arbitrator’s mandate expires once an arbitral decision has been reached, either resolving the dispute or ordering the discontinuance of the proceedings. In addition to the circumstances warranting discontinuance, arbitration proceedings may also be terminated if the disputing parties have reached a settlement. Once it has been passed, the arbitral decision applies to all the participants of the arbitration proceedings. It is final and cannot be appealed. The decision becomes binding for the disputing parties from the moment it has been served and, with regards to the issues it addresses, it is considered res judicata – equivalent to a legally binding ruling made by a state court. The recent evolution of arbitration into the dominant mechanism for resolving commercial disputes indicates that the subject of arbitration bears investigation. Based on an in-depth analysis of arbitration proceedings, it can be concluded that the disputing parties’ will and choice of applicable law can significantly impact the outcome of the arbitral process. Given the lack of cohesive rules regulating arbitration proceedings, this monograph has attempted to collect and appropriately analyze the relevant existing rules employed by arbitral institutions as well as the recommended rules for ad hoc arbitration.
U radu se polazi od odnosa stranaka arbitražnog postupka i strana potpisnica arbitražnog sporazuma, potom se isputuje da li je istovetnost strana potpisnica i stranaka u postupku isključiva ili je reč o pravilu koje dozvoljava određene izuzetke. Stranke arbitražnog postupka su najčešće, ali ne i isključivo, strane arbitražnog sporazuma. Praksa je pokazala da učesnici arbitražnog postupka mogu biti i lica koja se nisu eksplicitno saglasila sa arbitražnim sporazumom, kao što je to slučaj kod višestranačkih arbitraža u kojima učestvuje grupa kompanija (grupa društava). Kod multistranačkih arbitraža u kojima na jednoj od strana postoji množina subjekata u formi grupe kompanija postavljaju se brojna pitanja koja su predmet ovog istraživanja. Kao osnovno postavlja se pitanje da li lica koja nisu potpisala arbitražni sporazum mogu biti učesnici arbitražnog postupka. Odgovor na ovo pitanje traženo je u komparativnoj analizi normativnih pravila kojima se uređuje punovažnost arbitražnog sporazuma, kao i kritičkim tumačenjem arbitražnih sporova vođenih pred arbitražnim i sudskim većima. Rezultati do kojih smo induktivnom metodom došli ukazuju da potpis lica nije uslov za učestvovanje u arbitražnom postupku te da je moguće subjektivno proširenje dejstva arbitražnog sporazuma. Analiza novije arbitražne prakse i pretežnog dela teorije je pokazala da je u slučaju grupa kompanija rešenje diktirano praktičnim potrebama da se uvaže realni odnosi koji postoje u pravnom prometu nastali posebnom prirodom grupe kompanija koje se tretiraju kao „ekonomsko jedinstvo”. Rad je podeljen na četiri dela. Prvi deo posvećen je arbitražnom sporazumu kao osnovu konstituisanja nadležnosti arbitražnog tribunala; drugi analizira subjektivni domašaj arbitražnog sporazuma, dok je treći deo posvećen učešću „grupe kompanija” na strani jedne od stranaka u brojnim arbitražnim i sudskim postupcima. Poslednji deo se bavi zaključnim razmatranjima obrađene teme. U radu se polazi od odnosa stranaka arbitražnog postupka i strana potpisnica arbitražnog sporazuma, potom se isputuje da li je istovetnost strana potpisnica i stranaka u postupku isključiva ili je reč o pravilu koje dozvoljava određene izuzetke. Stranke arbitražnog postupka su najčešće, ali ne i isključivo, strane arbitražnog sporazuma. Praksa je pokazala da učesnici arbitražnog postupka mogu biti i lica koja se nisu eksplicitno saglasila sa arbitražnim sporazumom, kao što je to slučaj kod višestranačkih arbitraža u kojima učestvuje grupa kompanija (grupa društava). Kod multistranačkih arbitraža u kojima na jednoj od strana postoji množina subjekata u formi grupe kompanija postavljaju se brojna pitanja koja su predmet ovog istraživanja. Kao osnovno postavlja se pitanje da li lica koja nisu potpisala arbitražni sporazum mogu biti učesnici arbitražnog postupka. Odgovor na ovo pitanje traženo je u komparativnoj analizi normativnih pravila kojima se uređuje punovažnost arbitražnog sporazuma, kao i kritičkim tumačenjem arbitražnih sporova vođenih pred arbitražnim i sudskim većima. Rezultati do kojih smo induktivnom metodom došli ukazuju da potpis lica nije uslov za učestvovanje u arbitražnom postupku te da je moguće subjektivno proširenje dejstva arbitražnog sporazuma. Analiza novije arbitražne prakse i pretežnog dela teorije je pokazala da je u slučaju grupa kompanija rešenje diktirano praktičnim potrebama da se uvaže realni odnosi koji postoje u pravnom prometu nastali posebnom prirodom grupe kompanija koje se tretiraju kao „ekonomsko jedinstvo”. Rad je podeljen na četiri dela. Prvi deo posvećen je arbitražnom sporazumu kao osnovu konstituisanja nadležnosti arbitražnog tribunala; drugi analizira subjektivni domašaj arbitražnog sporazuma, dok je treći deo posvećen učešću „grupe kompanija” na strani jedne od stranaka u brojnim arbitražnim i sudskim postupcima. Poslednji deo se bavi zaključnim razmatranjima obrađene teme.
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