Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
by the beneficiary of the challenged act. In the proposals for a reform of
Dutch insolvency law that were presented to the Dutch government in
November 2007, a conflict rule that is more in tune with Article 13 EIR
has been suggested. 19 These proposals have not as yet led to any preparation
for legislation.
Article 339 of the German Insolvenzordnung contains a rule similar to that
of Article 13 EIR:
‘A juridical act can be reversed if the conditions for reversal of the
insolvency law of the State where the insolvency proceeding is opened
have been fulfilled, unless the other party provides proof that the juridical
act is governed by the law of another State and the juridical
act is in no way subject to reversal under that law.’ 20
Belgium has also incorporated a rule similar to Article 13 EIR in Articles
119 (4) and 121 (2) of its Act on private international law of 2004: 21
‘Art. 119. § 1. The insolvency proceeding opened in accordance with
article 118, § 1, second paragraph, and its effects are governed by Belgian
law. Belgian law determines the conditions for opening the proceeding,
its conduct and closure. It determines in particular the issues
referred to in article 4, § 2, (a)-(m) of the insolvency regulation.
(…)
§ 4. In deviation from § 1:
1° if the person who benefited from an act detrimental to all the creditors
proves that that act is governed by the law of another State and
that that law does not allow any means of challenging that act in the
relevant case, the voidness, voidability or unenforceability of legal acts
detrimental to all the creditors is governed by the law of that State;
(…)
Art. 121. § 1. A foreign judicial decision concerning the opening, conduct
or closure of an insolvency proceeding, and that has not been
19
Cf. Art. 10.4.9 Voorontwerp Insolventiewet, published in S.C.J.J. Kortmann
and N.E.D. Faber, Geschiedenis van de Faillissementswet, Voorontwerp Insolventiewet,
Serie Onderneming en Recht, deel 2-IV, Deventer: Kluwer,
2007.
20
Translation by the author.
21
Wet van 16 juli 2004 houdende het Wetboek van internationaal privaatrecht,
Staatsblad 27 juli 2004, p. 57344 et seq.
274
P. M. Veder
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