Comparing Empirical Results of Transaction Avoidance Rules Studies

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