The Effect of Bankruptcy on the Validity and Enforceability of an Arbitration Agreement

The study is dedicated to the analysis of the validity and enforceability of an arbitration agreement in bankruptcy. The main objective of the study is to propose improvements to Russian legislation and Russian judicial practice in terms of the approach to the validity and enforceability of an arbitration agreement in bankruptcy. The presence of two aspects of the validity of the arbitration agreement - reality and enforceability, as well as the goals and objectives of the study has determined the structure of the work. The first chapter is divided into 3 parts: in the first and second parts, the characteristic features of bankruptcy law and international commercial law are examined and contrasted. The conclusion is drawn about the opposite legal nature of these institutions. The third part provides an explanation of the main issues regarding the nature of the arbitration agreement. Chapter two is dedicated to the validity of the arbitration agreement and is also divided into 3 parts: a general description of the institution, classification of positions regarding the validity of the agreement in bankruptcy in various jurisdictions for various reasons, and positions held by Russian courts on the issues. That was found that imposition and changing of the stages of bankruptcy do not affect the validity of the arbitration agreement. It was also revealed that disputes that cannot be referred to bankruptcy arbitration concern are: the bankruptcy case itself and the disputes concerning contesting transactionы on bankruptcy grounds. In the third chapter, attention is paid to the issue of the implementation of the arbitration agreement in foreign and Russian legislation, structurally it will repeat the second one. On this issue, it was revealed that under Russian law, prohibit new monetary claims against a debtor in bankruptcy. They were classified and analyzed depending on the moment of opening of production and the stage of bankruptcy. Special attention was also paid to the issues of the unenforceability of the arbitration agreement on the basis of a shortage of funds of a party. On this issue, the approach of the Supreme Arbitration Court of the Russian Federation was analyzed and compared with foreign solutions. In conclusion, the author formulates the main conclusions based on the results of the study and draws up proposals for changing legislation and the proposed direction for the development of judicial practice.