Party Autonomy in International Property Law - Peace Palace Library

12.
Party Autonomy and Insolvency Law
P. M. Veder *
12.1. Introduction
The theme and title of this contribution is ‘Party Autonomy and Insolvency
Law’. Why this theme? Does insolvency law in any way influence
the debate on whether to accept party autonomy in international property
law?
Of course, the question as to whether a person has merely a personal
claim against an insolvent debtor or instead a proprietary interest in the
debtor’s property can mean the difference between recovering nothing at
all or achieving a substantial, if not full, recovery. However, the role of
insolvency law as such in the debate on whether to accept party autonomy
in international property law is, I think, somewhat limited.
Insolvency of one of the parties to a transaction does not alter the law
applicable to their relationship. Nor does the mere fact that insolvency
proceedings have been opened in respect of one of the parties to a transaction
in principle alter the rights and obligations emanating from their
relationship. However, insolvency law may influence the extent to which
and the conditions under which these rights and obligations can be enforced
during or after the debtor’s insolvency.
As regards proprietary (security) rights in assets, insolvency law takes
such rights as it finds them. Whether a proprietary (security) right exists,
and what its contents are, is not a matter of insolvency law but one of
(international) property law. What insolvency law does is regulate how
such rights can be enforced within the framework of an insolvency proceeding.
Of course, in regulating the position of, in particular, security
rights in insolvency, legislators make policy choices: for instance, with
respect to safeguarding or strengthening the interests of the general body
*
Michael Veder is professor of law at the Molengraaff Institute of Private Law,
Utrecht School of Law, and attorney at RESOR N.V. in Amsterdam.
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