A Study On Bankruptcy Arbitration

As the development of the market economy, market bodies go bankruptcy frequently. Traditionally, bankruptcy court handles the whole bankruptcy matters. As the bankruptcy matters become more and more complex these days, it takes much time for the court to settle bankruptcy disputes. In this way, not only does the court bear the heavy burden, but also do the parties spend on much money, which goes against the aim of benefit maximization. The bankruptcy arbitration deals with the disputes arose from the contract between the bankrupt and the creditors. In the past bankruptcy law, the bankruptcy matters can not be dealt with arbitration. Whether bankruptcy matters can be arbitrated or not still differ in different countries. Along with bankruptcy matters increase, the countries which have the advanced arbitration system bring the part of the bankruptcy matters into the field of the arbitration. Furthermore, a lot of prejudications form the system of the bankruptcy arbitrability trend. The equity and the benefit is the aim of the bankruptcy law. The bankruptcy arbitration not only fits the intent of the bankruptcy law, but also has many advantages, for example, the bankruptcy arbitration is good to ease the burden of the court and helps to protect the benefit of the parties. The paper focuses on the discussion of the development of the bankruptcy arbitration in the USA and gives advice to the completion of the bankruptcy arbitration in our country.Part two and three of the paper is the keystone. In the two parts, the paper analyses the arbitrability of the bankruptcy issues both in the legislation and legal practice under the amendment of the bankruptcy law of the USA. Also the paper gives the ordinary criteria of the arbitrability of the bankruptcy issues. Based on the legislation and legal practice of the USA and combined with the related legislation, the paper discusses the important things during the bankruptcy proceedings which influence the arbitration proceedings. All above are the significant things to the formation of bankruptcy arbitration. The experience of the America and other countries is worthy of our studies.The newly passed bankruptcy law regulates the bankruptcy arbitration for the first time. However, the scope of the bankruptcy arbitration is very narrow, and the proceeding is uncompleted. Because the arbitration comes into use lately in our country, and people are unfamiliar with the arbitration, there are many lacunas in the legislation and practice of the bankruptcy arbitration. Finally the court itself is unwilling to prompt arbitration.When the court faces the more and more complicated bankruptcy issues, the need of the ADR is very urgently. We should research on how to extend the scope of the bankruptcy arbitration and the paper tries to give suggestions both in the field of legislation and the legal practice in order to complete the bankruptcy arbitration in our country.