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Comparing empirical results of transaction avoidance rules studies

✍ Scribed by Gijs van Dijck

Publisher
John Wiley and Sons
Year
2008
Tongue
English
Weight
172 KB
Volume
17
Category
Article
ISSN
1180-0518

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✦ Synopsis

Abstract

Empirical legal research in the United Kingdom (UK) and in The Netherlands (NL) has provided data on the extent to which the transaction avoidance rules (avoidance powers, actio Pauliana) generate practical problems. This paper's goal is to explore the similarities and differences of the data. To achieve this, existing empirical data found in Dutch and UK research are compared. From the comparison, it follows that the UK and NL share similar problems, that is 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. Copyright Β© 2008 John Wiley & Sons, Ltd.

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