The International Bankruptcy Claims Disputes Arbitration Jurisdiction

As dispute arising out of international bankruptcy debts frequently overlaps withinternational commercial arbitration in insolvency proceedings, conflict between thearbitration jurisdiction chosen by the parties and the exclusive jurisdiction oninsolvent cases enjoyed by courts becomes unavoidable. The classic bankruptcytheory tends to deny the objective arbitrability of insolvent disputes, with thedevelopment and maturation of international commercial arbitration both in theoryand practice, the scope of arbitrable issues has enlarged gradually. Insolvent disputeshave been classified into different types in legislation and judicial practices, amongwhich the disputes seeking for acknowledgement of creditor’s rights and the amountof the debt have been accepted as arbitrable to a large extent worldwide. Comparedwith arbitration on domestic bankruptcy debts, arbitration on international bankruptcydebts is much more complicated because of the various countries and jurisdictions aswell as the conflict of public interests it involves. Even though the features of disputesarising out of international bankruptcy debt, which separate them from other kinds ofdisputes, render them to be arbitrable both subjectively and objectively, to solvedisputes on international bankruptcy debt requires the consideration of many complexissues, including the validity and law application of arbitration agreement, theextraterritorial effect of bankruptcy, the application of insolvency law in arbitrationproceedings, the acknowledgement and enforcement of arbitration awards. All theseproblems shall be solved under the cooperation and coordination of arbitral tribunaland bankruptcy court. China now lacks specific and systematic laws and regulation onthe arbitration of international bankruptcy debt, which needs to be supplemented andimproved on the basis of the present Law of the People’s Republic of China onEnterprise Bankruptcy and Arbitration Law of the People’s Republic of China, andefforts shall be made mainly from the4aspects mentioned above.