Comparing Empirical Results of Transaction Avoidance Rules Studies

TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 003/2008

Tilburg University Legal Studies Working Paper No. 006/2008

24 Pages Posted: 4 Apr 2008 Last revised: 10 Dec 2010

See all articles by Gijs van Dijck

Gijs van Dijck

Maastricht University - Faculty of Law

Date Written: August 19, 2010

Abstract

Empirical legal research in the UK and in the Netherlands has provided data on the extent to which the transaction avoidance rules (avoidance powers, actio Pauliana) generate practical problems. This article's goal is to explore the similarities and differences of the data. To achieve this, existing empirical data found in the Dutch and the UK research are compared. From the comparison, it follows that the UK and The Netherlands share similar problems, i.e. there are no proceeds in a substantial number of cases in which the office-holder (or liquidator) encounters a suspect transaction, the majority of the disputes are conducted in the shadow of the law, proceeds are obtained more often from settlements than from proceedings, insufficient funds and evidence problems are experienced as major obstacles for successfully invoking the transaction avoidance rules, and a presumption or shift of burden of proof influences the outcome significantly.

Keywords: bankruptcy, insolvency, transaction avoidance, avoidance powers, pauliana, empirical

JEL Classification: K19, K39, G33

Suggested Citation

van Dijck, Gijs, Comparing Empirical Results of Transaction Avoidance Rules Studies (August 19, 2010). TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 003/2008, Tilburg University Legal Studies Working Paper No. 006/2008, Available at SSRN: https://ssrn.com/abstract=997585 or http://dx.doi.org/10.2139/ssrn.997585

Gijs Van Dijck (Contact Author)

Maastricht University - Faculty of Law ( email )

P.O. Box 616
Maastricht, 6200
Netherlands

HOME PAGE: http://https://www.maastrichtuniversity.nl/gijs.vandijck

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