RT info:eu-repo/semantics/doctoralThesis
T1 El arbitraje de insolvencias: la arbitrabilidad nacional y transfronteriza del concurso de acreedores y de los institutos preconcursales
A1 Carbonero Crespo, Miguel Ángel
A2 Universidad de Valladolid. Escuela de Doctorado
K1 Derecho mercantil
K1 Insolvency
K1 Insolvencia
K1 Public policy
K1 Orden público
K1 5605.03 Derecho Mercantil
AB Arbitration and insolvency are two fields based on rather antagonistic principles, which have traditionally not been seen as interrelated, except when analysing the effects of insolvency on the enforceability of arbitration agreements and ongoing arbitrations. Over the last few decades, we have witnessed a progressive de-judicialisation of modern insolvency law, which invites us to explore the opportunity to address corporate insolvency crises through arbitration. The purpose of this PhD is fourfold: (i) to analyse the structural shortcomings of the justice system and the opportunities and advantages that insolvency arbitration would bring to trade and markets; (ii) to analyse the arbitrability of insolvency, its compatibility with public policy and the design of a plurilateral submission to arbitration through multiple arbitration agreements and mechanisms for extending arbitration to non-signatory parties; (iii) to study the design of pre-insolvency and insolvency institutions from an arbitration perspective in Spain; and (iv) to design a proposal to harmonise cross-border insolvency arbitration through an international convention on the recognition and enforcement of insolvency awards, an UNCITRAL model law and an insolvency arbitration rules.The PhD thesis is structured into four parts, each comprising distinct chapters.The first section addresses 'Arbitration as a Mechanism for Resolving Corporate Insolvency' and provides an overview of the interrelationship between insolvency law and arbitration. It explains how insolvency arbitration can be a useful and effective tool for modernising, streamlining, and optimising the treatment of corporate insolvency. It also discusses why insolvency arbitration aligns with the progressive flexibilisation and dejudicialisation of insolvency and what the main benefits and advantages of this tool would be.The second section addresses 'the arbitrability of insolvency, public policy, the arbitration agreement and the jurisdictional function' and focuses on analysing the arbitrability of insolvency. It examines how the plurality of parties and matters affected in insolvency proceedings would justify their comprehensive treatment, as well as the attraction of traditionally mandatory issues, such as public and labour credit, to the scope of available and arbitrable matters. This is due to the specific uniqueness of insolvency situations. It also considers how insolvency arbitration can be coordinated with respect to the lex fori concursus and the lex loci arbitri, and analyses the compatibility of this approach with the public policy of the forum. Furthermore, it discusses the need to exclude the arbitrability of insolvency itself from the grounds for annulling awards rendered in insolvency arbitrations, as part of the jurisdictional control of arbitration.The third section deals with 'Insolvency Arbitration in Spain' and analyses the origins of arbitration in our legal system, as well as the regulatory background that led to its incorporation. It reviews the nature and characteristics of arbitration and its constitutional basis, and specifies how the arbitration procedure is designed in our domestic legal system, as well as its specific functional implementation in pre-insolvency and insolvency institutions.The fourth section deals with 'cross-border insolvency arbitration'. It focuses on studying and analysing the potential implementation of cross-border insolvency arbitration from both an intra-EU and extra-EU perspective. It considers, de lege ferenda, the desirability of having international instruments (model laws, international conventions, EU regulations, arbitration court regulations, soft law instruments, etc.) that contribute to the task of regulatory harmonisation and the standardisation of the international treatment of arbitrated insolvency.
YR 2025
FD 2025
LK https://uvadoc.uva.es/handle/10324/80952
UL https://uvadoc.uva.es/handle/10324/80952
LA spa
NO Escuela de Doctorado
DS UVaDOC
RD 12-ene-2026