The Conflict And Coordination Between The Bankruptcy Procedure And The Arbitration Procedure

In the modern commercial society,both the bankruptcy system and the arbitration system are in the period of rapid development.The commercial subjects often choose the confidential and efficient arbitration as the solution to disputes in the transaction activities.Therefore,when an enterprise goes to the bankruptcy procedure,it will involve the application of arbitration in the bankruptcy procedure.In the bankruptcy procedure,the division of some disputes to arbitration is helpful to solve the disputes quickly,share the court litigation pressure,and shorten the trial period of the whole bankruptcy procedure.Although our country has made it clear in the judicial interpretation that the proceeding of the arbitration procedure is not excluded in the bankruptcy procedure and the arbitration agreement that existed before the bankruptcy acceptance is preferred when the parties have disputes about the creditor's rights,the nature and value selection of the bankruptcy system and the arbitration system are different or even opposite,which often leads to conflicts between the bankruptcy procedure and the arbitration procedure.This paper analyzes the conflict between bankruptcy procedure and arbitration procedure from four aspects.First of all,there are differences in the determination of arbitratable matters.In arbitration,as long as the disputes about contracts and property rights and interests do not involve personal relationship and administrative disputes,they should be able to be arbitrated.In bankruptcy proceedings,there are many matters that stipulate that the parties can bring a lawsuit to the court accepting bankruptcy,such as the dispute over the right of rescission,the dispute over the right of recall,etc.,but in the final analysis,they are still Property rights and interests disputes,then whether it can be arbitrated,need to be clear by law.Secondly,when confirming the creditor's rights,there are many dissidents who dispute the same creditor's rights,and there is an arbitration agreement between one creditor and the debtor before accepting the bankruptcy.Due to the contractual nature and autonomy of the arbitration system,the third party who is not a party to the arbitration agreement cannot participate in the arbitration procedure of others,while the existing bankruptcy system stipulates the parties If an arbitration agreement is signed before the bankruptcy acceptance,the arbitration procedure shall be applied to confirm thecreditor's rights first,so there is no proper way for other creditors to safeguard their own rights and interests.Thirdly,the main body applying for cancellation in arbitration is the parties to the arbitration agreement,and the main body applying for non execution is the respondent of the arbitration award.In bankruptcy proceedings,for the claims declared by the arbitration award and confirmed by the administrator,other creditors will not be able to directly maintain their own interests by applying for cancellation or non execution of the arbitration award if they have objections.If they directly file an application The action of confirming the creditor's rights will violate the stipulation of the final judgment.Finally,when the arbitration award is revoked or not enforced,if the parties want to determine the creditor's rights through re arbitration,they may be hindered because the administrator lacks the right to sign the arbitration agreement.After analyzing the conflict between the bankruptcy procedure and the arbitration procedure,this paper holds that the matters that can be arbitrated in the bankruptcy should be properly interpreted in a limited way and the principle of centralized jurisdiction in the bankruptcy law should be respected.Secondly,if there is a dispute over the same creditor's right among many people and an arbitration agreement is concluded between one creditor and the debtor before bankruptcy acceptance,the parties in dispute can negotiate.If they agree to join the arbitration procedure by other dissidents,the arbitration procedure shall be applied to confirm the creditor's right.If they fail to reach an agreement,in order to avoid simultaneous litigation and arbitration,they shall When the private interests are limited to some extent,the dissenting parties shall Sue as joint plaintiffs to confirm the creditor's rights.For the claims declared by the arbitration award,the manager shall deny the validity of the arbitration award by canceling the arbitration award if it does not confirm after examination.After the award is cancelled,the manager can confirm the claims by signing a new arbitration agreement or suing.If the manager confirms the claims review,other creditors who have objections can provide clues to the court and the court will start the cancellation of the arbitration Procedure for adjudication.