论仲裁与破产程序的调适

On the Adjustment of Arbitration and Bankruptcy Procedure

破产与仲裁法律制度适用范围的扩张,使二者的相遇成为常态。仲裁的私人自治属性与破产集体清偿的公益目标存在本质上的冲突,判断破产事项是否具有可仲裁性须经受双重标准的司法审查:一是仲裁争议是否属于纯粹破产事项的形式标准;二是倘若容许破产与仲裁程序的平行运行是否有悖于破产立法主旨的价值标准。不符合双重标准的既存仲裁程序以及仲裁裁决效力,须在破产程序中依据破产法的规则予以调整。倘若当事人尚未提交仲裁的仲裁协议约定内容为非纯粹破产事项,可将其视为债务人与债权人双方均未履行完毕的合同,由管理人依据履职要求行使挑拣履行权决定是否启动仲裁程序。在破产程序中签订新仲裁协议属于司法权保留事项,逾越了管理人的权限。

With the expansion of the applicable scope of bankruptcy and arbitration legal system,the encounter between them has become normal.The private autonomy of arbitration is in conflict with the public goal of collective liquidation of bankruptcy in essence.To judge whether bankruptcy matters have arbitrability or not is subject to judicial review of double standards:Whether the arbitration dispute belongs to the formal standard of pure bankruptcy matters;Whether allowing the parallel operation of bankruptcy and arbitration procedure is contrary to the value criteria for the adjustment objectives of bankruptcy law.The pending arbitration procedure and the validity of the arbitration award that does not meet double standards shall be adjusted in accordance with the rules of the bankruptcy law in the bankruptcy procedure.If the contents of the arbitration agreement which has not been submitted to arbitration procedure by the parties are non-pure bankruptcy matters,it may be regarded as a contract in which both the debtor and the creditor have not completed the performance,and the administrator shall exercise the right of selective performance according to the requirements of performance of duties to decide whether to start the arbitration procedure.The signing of a new arbitration agreement in the bankruptcy procedure is a matter of judicial retention,which oversteps the administrator’s authority.