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The Effect of Insolvency on International Mediation - The European and Spanish Perspectives

Research output: Contribution to journalArticle

Original languageEnglish
Number of pages16
JournalTransnational Dispute Management
Volume4
Early online date30 Nov 2017
Publication statusPublished - Nov 2017

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Abstract

This paper studies the effects that the opening of insolvency proceedings produces on international mediation clauses, procedures and agreements. This topic has remained vastly overlooked in the past, despite the increasing use of mediation to address insolvency situations. The analysis required is twofold. First, it is necessary to determine the law that will govern the substance of those effects. In this private international law stage, the European Insolvency Regulation constitutes the cornerstone of the system for cross-border insolvencies in every EU Member State and inspires the regime contained in the Spanish Insolvency Act. In both instruments, the lex fori concursus plays a central role and should override the solutions provided in the law of the place of mediation and the law governing the contract underlying the mediated dispute.

Assuming that this first analysis leads to the application of Spanish law, the article demonstrates that the Insolvency Act contains a very friendly treatment of mediation in the context of financial constraints. However, such regime does not eliminate the need to introduce numerous procedural adaptations to the mediation process, even if not apparent in the provisions of the Act. The paper explores the content of those adaptations and makes proposals to secure the protection of the collective interests present in the insolvency while respecting the core principles of the mediation process.

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