Comparing empirical results of transaction avoidance rules studies

G. van Dijck

Research output: Contribution to journalArticleScientific

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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.
Original languageEnglish
Pages (from-to)123-141
Number of pages19
JournalInternational insolvency Review
Volume17
Issue number2
Publication statusPublished - 2008

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transaction
Netherlands
Law
evidence
Avoidance
Empirical results
The Netherlands
Empirical data
Burden
Dispute

Cite this

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Comparing empirical results of transaction avoidance rules studies. / van Dijck, G.

In: International insolvency Review, Vol. 17, No. 2, 2008, p. 123-141.

Research output: Contribution to journalArticleScientific

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AB - 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.

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