论破产对国际商事仲裁裁决承认与执行的影响——以《纽约公约》第5条的适用为视角

On the Impact of Insolvency on the Recognition and Enforcement of International Commercial Arbitral Awards——From the Perspective of the Application of Article 5 of the New York Convention

在国际商事仲裁裁决承认与执行过程中若败诉方破产,审查执行申请的法院兼为破产程序启动国或承认国时,应在适用《纽约公约》第5条时考虑破产事实的存在。通过比较分析可知,各法域对此存在不同做法,但一般而言破产不轻易影响《纽约公约》第5条下破产方的行为能力和仲裁协议的效力,但是否影响破产争议的可仲裁性和违背执行地的公共政策则因各国而异。并且,破产背景下裁决往往无法获得单独强制执行,而仅能以债权凭证效力通过债权申报方式与其他债权人一同获得执行。我国司法实践已涉及破产与国际商事仲裁裁决承认与执行的交叉问题,但立法尚处于空白状态。在疫情引发全球经济危机导致高破产率的背景下,尽快明确与处理二者竞合关系的原则与规则以指导司法实践十分必要。

In the recognition and enforcement of an international commercial arbitral award, the fact of insolvency should be taken into account in the application of Article 5 New York Convention when the country of execution is also the State where the insolvency proceedings were commenced or the State of recognition. A comparative analysis shows that there are different approaches in various jurisdictions, but in general insolvency does not readily affect the capacity of the insolvent party and the validity of the arbitration agreement under Article 5 New York Convention, but whether it affects the arbitrability of insolvency disputes and public policy varies from country to country. Moreover, awards in the insolvency context are often not enforceable on their own, but only by way of claims filing with other creditors as a proof of claim. The intersection of insolvency and the recognition and enforcement of international commercial arbitral awards has been addressed in Chinese judicial practice, but the legislation is still in limbo. Against the background of the global economic crisis caused by the Covid-19 and the high rate of bankruptcy, it is necessary to clarify the principles and rules for dealing with the competing relationship between insolvency and arbitration as soon as possible in order to guide judicial practice.