Examination of Transactional Avoidance in the Context of European Insolvencies
April 2015 - July 2016
When a debtor enters formal insolvency proceedings, such as liquidation or bankruptcy, the person who administers the insolvent's affairs will examine what transactions were made before the commencement of the insolvency proceedings. This is done with the aim of being able to have transactions set aside and any property or money that was given to third parties pursuant to the transactions is returned to the insolvent’s estate, thereby meaning that creditors will receive a greater payout from the estate.
The study considers the law concerning the right of liquidators and other insolvency practitioners to challenge transactions that were entered into before insolvency proceedings were commenced against a debtor and examines the position that exists in the Member States of the EU and particularly difference and commonalities that one finds in different States. It also investigates what problems exist for liquidators when seeking to challenge transactions that were made in a Member State other than where the debtor is subject to proceedings and where the estate is being administered.
Particular focus is given to how to resolve these problems and whether the harmonisation of the avoidance rules in EU Member States could be possible and if so, what form would the rules take.