At 59-60 the Court simply notes that all creditors were ‘contractually’ linked to Isabel C, and then applies Feniks to come to a finding of contractual relation between claimants and Mr Casamassima: without any reference to the fraus element (I had indeed suspected the Court would not so quickly vary its own case-law). Tanchev AG as I noted essentially suggested a limitation of Feniks to cases of fraus – arguably present here. Then, surprisingly (for it was not part of the questions asked the AG entertained it but that is what AGs do) the Court completes the analysis proprio motu with consideration of Article 7(1)’s forum contractus rule, with respect to claimants’ argument that the acknowledgement of debt by Isabel, cannot be used against them. (The Court refers to Komu, Schmidt, Weber). The issues at stake are far removed from the reasons which justify exclusive jurisdiction. They are right: A25(5) must not resurrect merits claims on much wider issues (claim for compensation of applicants’ debt, objections concerning the non-existence of a claim underlying a judicially ordered auction, and concerning the invalidity of the creation of the pledge for that claim under a loan agreement).Ĭourt and AG are also right in rejecting Article 24(1) jurisdiction.
The Court like the AG rejects jurisdiction on the basis of Article 24(5). Failing that, the anchor might be A24(1)’s locus rei sitae exclusive jurisdictional rule. In essence applicants are attempting to anchor their pauliana unto A24(5)’s enforcement jurisdiction. The CJEU held on Wednesday last week- no English version of the judgment is as yet available. I reviewed Tanchev AG’s Opinion in C‑722/17 Reitbauer here. Readers best refer to it to get insight into the complex factual matrix. Tanchev AG’s focus on fraus arguable reconciles both – but the Court did not follow. Ours (mine, below, and Michiel Poesen’s here) is the excessive stretch of the notion of contract. Michael’s point of view is that of the construction sector, and avoiding ‘debt dodging’.
#Actio pauliana adalah update
Update 18 July 2019 for an alternative view, see Michael McParland QC here. I realise the CJEU does not refer to scholarly sources yet surely it could have referred to the Giuliano-Lagarde report to shore up its conclusions so succinctly formulated.ĮU Private International Law, 3rd ed. Plender and Wilderspin, as well as McParland refer in support to the Guiliano-Lagarde report to the Rome Convention. Many scholarly sources support the same conclusion, and e.g. ‘Performance’ per A12 Rome I is held to include performance by a third party. At 31-32 however it upholds the effet utile of A16, which as ia confirmed in Vinyls Italia, is to protect the legitimate expectations of a party contracting with a counterparty who subsequently enters insolvency proceedings, that the contract will continue to be governed by the lex contractus, not the lex concursus. The CJEU, referring to Lutz and Nike, confirms the restrictive scope of A16 EIR. In technical terms: whether effective contractual performance by third parties, is part of A12(1)b Rome I’s concept of ‘performance’ of the contract being within the scope of the lex contractus. The core question is whether the impact of that lex contractus extends to payments made by third parties. Frerichs contend that on the basis of A16 European Insolvency Regulation (‘EIR’) 2015 (in fact, the A13 almost identical version of the EIR 2000), such as applied ia in C-54/16 Vinyls Italia), Dutch law, the charter party’s lex contractus per the Rome I Regulation, shields it from the German Pauliana. The liquidator seeks the repayment of that sum on the basis of the lex concursus, German law, insolvency pauliana. The application does not give any detail as to the circumstances of that ‘order’. In November 2010, Oeltrans paid Frerich the sum owed by Tankfracht, ‘on the order of Tankfracht’. Frerich was to transport goods by vessel for Tankfracht from the Netherlands to Germany. An inland waterway contract (a charter party) existed between Tankfracht and Frerich, established in the Netherlands, under which Tankfracht owed Frerich EUR 8 259.30. The Oeltrans group includes Tankfracht GmbH, also established in Germany. Insolvency proceedings had been opened in April 2011.
In C-73/20 Oeltrans Befrachtungsgesellschaft v Frerichs the CJEU held yesterday – no AG Opinion had been requested.Īpplicant ZM has been the liquidator in the insolvency of Oeltrans Befrachtungsgesellschaft, established in Germany. Update 28 April 2021 see Giles Cuniberti’s critique of the implications of A13 EIR (contract law trumps insolvency law) here.
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