The interplay between ADR and insolvency proceedings is drawing attention nowadays as never before. Whether the focus is on arbitration, mediation, or other ADR instruments, the question is: to what extent do insolvency and insolvency proceedings negatively affect the use of ADR or, conversely, may profit from it? The trend is to reduce obstacles and let ADR encroach on insolvency issues. However, national laws vary from each other in this respect. This triggers fragmentation when it comes to assessing comparatively the use of ADR in insolvency and pre-insolvency situations, or regulatory clashes when insolvency proceedings are opened in a State while ADR should be carried out, or are pending, or are concluded in another State with different sensitivity to their interplay with insolvency. On the other hand, Regulation (EU) 2015/848, the 2019 Restructuring Directive and the Mediation Directive offer the basis for identifying at least general principles of coordination between ADR and insolvency proceedings in the EU law. Treatment of arbitration, mediation in group insolvency, and negotiation in preventive restructuring frameworks are illustrative examples.
ADR and EU Cross-border Insolvency
Antonio Leandro
2025-01-01
Abstract
The interplay between ADR and insolvency proceedings is drawing attention nowadays as never before. Whether the focus is on arbitration, mediation, or other ADR instruments, the question is: to what extent do insolvency and insolvency proceedings negatively affect the use of ADR or, conversely, may profit from it? The trend is to reduce obstacles and let ADR encroach on insolvency issues. However, national laws vary from each other in this respect. This triggers fragmentation when it comes to assessing comparatively the use of ADR in insolvency and pre-insolvency situations, or regulatory clashes when insolvency proceedings are opened in a State while ADR should be carried out, or are pending, or are concluded in another State with different sensitivity to their interplay with insolvency. On the other hand, Regulation (EU) 2015/848, the 2019 Restructuring Directive and the Mediation Directive offer the basis for identifying at least general principles of coordination between ADR and insolvency proceedings in the EU law. Treatment of arbitration, mediation in group insolvency, and negotiation in preventive restructuring frameworks are illustrative examples.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
