Party Autonomy in International Property Law - Peace Palace Library

12. Party Autonomy and Insolvency Law
Under current Dutch law, an action brought by a foreign liquidator to
reverse a juridical act that is governed by a law different from the lex
concursus will only be successful if and to the extent that the challenged
act is also subject to reversal pursuant to the law governing the act. This
follows from a decision of the Hoge Raad of 24 October 1997 in a case
concerning an action brought by a German liquidator to reverse payments
made to a Dutch creditor. The Hoge Raad observed that:
‘In the opinion of the Hoge Raad present Dutch private international
law refers the action brought in the Netherlands by a foreign liquidator
to reverse a juridical act that has prejudiced the creditors to the
law governing the insolvency proceeding (the ‘lex concursus’), which
determines the existence and content of the powers of the liquidator.
However, the protection of legal certainty requires that due attention
is given to the circumstance that a Dutch counterparty of the insolvent
party – the party that has benefited from the challenged juridical
act performed by the insolvent debtor – does not have to be prepared
for an action aimed at reversal of the juridical act under foreign law,
to the extent that the juridical act itself is not governed by that same
law and such law imposes less strict requirements for the reversibility
of the juridical act than the law governing the juridical act itself (the
‘lex causae’). In the event the lex causae is different from the lex
concursus, the success of the action brought by the liquidator must
therefore be assessed not only in accordance with the rules of the latter
but also the rules of the lex causae, and will only lead to reversal
of the juridical act if the requirements of the lex concursus as well as
the lex causae have been met. Support for this approach can be found
in international developments, in particular the Convention on insolvency
proceedings that was concluded on 23 November 1995 and
has meanwhile been signed by the Netherlands.’ 17
The conflict rule thus presented by the Hoge Raad, which in my view
applies equally in the case of insolvency proceedings opened in the
Netherlands, 18 differs from the approach adopted in the EC Insolvency
Regulation in that the court must always examine the vulnerability of the
juridical act in accordance with its lex causae, and it places the burden
of proof on the liquidator. It is not a mere defence that may be invoked
17
HR 24 October 1997, NJ 1999, 316, comm. Th.M. de Boer (Gustafsen q.q. / ​
Mosk), JOR 1997 / 146, comm. H.L.E. Verhagen. Translation by the author.
18
Cf. Veder 2004 (footnote 7), p. 327.
P. M. Veder
273
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