Party Autonomy in International Property Law - Peace Palace Library

12. Party Autonomy and Insolvency Law
the reversal of juridical acts that have been performed in a particular
period prior to the opening of insolvency proceedings (or the moment
determined by the court that the debtor was in fact insolvent): a ‘période
suspecte’. Timeframes and conditions may differ depending on the nature
of the juridical act concerned. Jurisdictions also differ with respect to the
question of whether action must be taken by the administrator to obtain
the invalidation of the prejudicial acts or whether the decision to open
insolvency proceedings automatically entails invalidation.
Given these differences in national substantive law, it is therefore important
to establish which law governs such avoidance actions in an international
context.
12.2.2. Lex concursus applies; ‘veto’ of the lex causae
The law applicable to avoidance actions is determined by Articles 4 (2)
(m) and 13 EIR. This applies both to main and territorial (secondary)
proceedings. 7 Pursuant to Article 4 (2) (m) EIR, the lex concursus determines
the rules relating to the voidness, voidability, or unenforceability of
juridical acts detrimental to all the creditors. The lex concursus determines
the conditions for reversal of a juridical act, the manner in which such
reversal operates – e.g. by operation of law or requiring action from the
liquidator (either in court or outside of court proceedings) – and the legal
consequences thereof.
If under the lex concursus a juridical act is not subject to reversal, the
liquidator cannot challenge the act successfully even if it is subject to
reversal under the law governing the act concerned. If for example the act
concerns a transfer or encumbrance of assets situated in a Member State
where the debtor has an establishment within the terms of Article 2 (h)
Maxwell, 2007, p. 458 et seq. See also the UNCITRAL Legislative Guide on
Insolvency Law, part II, par. 148-203.
7
The division of powers between the liquidators in main and territorial proceedings
to institute avoidance actions will not be further dealt with in this
paper. On this issue, see for example P.M. Veder, Cross-Border Insolvency
Proceedings and Security Rights, Kluwer Law International, 2004, p. 309-
311. The issue of jurisdiction in respect of avoidance actions will also not be
addressed in this paper. In this respect, reference is made to ECJ 12 February
2009, Case C-339 / 07 (Seagon q.q. / ​Deko Marty).
P. M. Veder
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