Posts Tagged set aside
Wiemer & Trachte v Tadzher: vis attractiva concursus leads to exclusive jurisdiction for the pauliana.
Two days ago the Court held in C‑296/17 Wiemer & Trachte. Following Wahl AG’s Opinion (which is not available in English), the Court has confirmed exclusive jurisdiction for set aside (pauliana) actions, of the courts of the Member State within the territory of which insolvency proceedings have been opened (COMI or secondary proceedings). Not therefore jurisdiction under the Brussels I Recast for the State of domicile of the defendant.
The need to avoid forum shopping (a strong leading principle in the insolvency Regulation) in particular, led Wahl AG and now the Court to insist on exclusive jurisdiction. The alternative reading (defended, I understand, inter alia by the Commission) relied on the altogether limiting wording of the relevant articles in the Regulation (both the previous and current versions), and also on an efficiency argument: particularly the insolvency practitioner ought to be able to forum shop so as to ensure the best outcome for the collective creditors (particularly by pursuing parties who have benefitted from avoidance actions, in their domicile). Wahl AG confessed sympathy for that practical reason (not unlike some of the arguments in the common law against say Owusu or West Tankers), yet emphasised the CJEU’s direction on vis attractiva concursus: rather a magnetic direction.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5 Heading 5.4.1. Chapter 2 Heading 184.108.40.206.1
Actio Pauliana, avoidance, C-133/78 Gourdain, C‑649/16, CJEU, Curia, ECJ, Faillissementspauliana, Gourdain, Insolvency, Jurisdiction, pauliana, related proceedings, set aside, vis attractiva concurcus, Wiemer & Trachte, Wiemer & Trachte v Tadzher
- ZX v Ryanair: Branch jurisdiction and voluntary appearance under Brussels Ia. 17/04/2019
- Ema Garp Fund v Banro Corp: Chapter 15 and international comity. 16/04/2019
- Zetta Jet: COMI, time of filing, forum shopping, ordre public in insolvency. A comparative law Fest in Singapore. 12/04/2019
- Modern Families. UK Supreme Court confirms CSR jurisdiction against mother and daughter in Lungowe v Vedanta and Konkola – yet with one or two important caveats. 10/04/2019
- Tanchev AG in Reitbauer: contract, pauliana and exclusive jurisdictional rules. Suggests restriction of CJEU Feniks to cases of fraus. 10/04/2019
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