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Actio Pauliana Outside Bankruptcy and the Brussels Convention

Published online by Cambridge University Press:  21 May 2009

U. Göranson
U. Göranson
Affiliation:
Professor of Comparative and International Private Law at Uppsala University, Sweden.
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Extract

It was Bert Voskuil, ten years ago when on a research semester at the Law Faculty of Uppsala University, who first introduced me to Dutch law, in Sweden a far too neglected area of comparative research. After a number of discussions or rather explanatory remarks from Bert Voskuil's side on the concept of levering (traditio), which was then my primary topic of interest, he also mentioned the important role in Dutch law of the actio Pauliana. I looked quite bewildered, since outside bankruptcy, this institution is, strangely enough, unknown in Scandinavian law. It caught my interest, and in a later work I made an effort to present it to the Swedish legal audience. Sweden is still outside the Community and barred from cooperation under the Brussels Convention. We are, however, on the point of ratifying the parallel Lugano Convention signed in 1988 by EEC and EFTA States. The choice of topic for mis Liber Amicorum, thus, came easily: some reflections on the actio Pauliana in European procedural law.

Type
Research Article
Information
Netherlands International Law Review , Volume 39 , Special Issue S1: Law and Reality , October 1992 , pp. 89 - 104
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. The Brussels Convention 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

2. The European history and the subsequent Dutch development was excellently treated by J.A. Ankum in two volumes De geschiedenis der ‘actio Pauliana’ [The history of the ‘actio Pauliana’] and De Pauliana buiten faillissement in het Nederlandse Recht sedert de Codificatie, [The Pauliana outside bankruptcy in the law of the Netherlands since the codification] (both 1962). Far a later overview, see, e.g., Göranson, U., Återvinning utom konkurs [Actio Pauliana outside bankruptcy] (1989).Google Scholar

3. A comprehensive overview of several methods with numerous references is given, e.g., by Kegel, G., Internationales Privatrecht, 6th edn. (1987) § 7.Google Scholar

4. Arts. 3:45–48 NBW.

5. For a short reference to German and Austrian literature on the subject, see infra n. 19.

6. See Art 1 for the actions which are excluded from the application of the Convention. Any doubt concerning the extension of the provisions therein on insolvency proceedings is dispelled by the fact that the European Court has handled a case concerning the actio Pauliana, Reichert v. Dresdner Bank, [1990] ECR I–27. A second reference to the Court has been made in the same case, now under Arts. 5(3), 24, or 16(5), [1991] LL.Pr. 241; no opinion of the Advocate-General was delivered as of December 1991. Cf., however, infra n 51.

7. The only exclusion, unless mere is prorogation, to the rule that the courts of the defendant's domicile always have jurisdiction, is found in the exclusive jurisdiction rules in Art 16.

8. On the independent interpretation of Art. 6(1), see Kalfelis v. Schröder, [1988] ECR 5565.

9. Reichert v. Dresdner Bank, [1990] ECR 1–27.

10. The relevant parts of Art. 5 read:

‘A person domiciled in a Contracting State may, in another Contracting State, be sued 1. in matters relating to a contract, in the courts for the place of performance of the obligation in question; … 3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred;’

11. E.g., De Bloos v. Bouyer, [1976] ECR 1497; LTU v. Eurocontrol, [1976] ECR 1541; Bier v. Mines de potasse d'Alsace, [1976] ECR 1735; Industrial Diamond Supplies v. Riva, [1977] ECR 2175; Bertram! v. Ott, [1978] ECR 1433; Gourdain v. Nacder, [1979] ECR 733; Somafer v. Saar-Ferngas, [1978] ECR 2183; Peters v. ZNAV, [1983] ECR 987; Kalfelis v. Schröder, [1988] ECR 5565; Reichert v. Dresdner Bank, [1990] ECR 1–27; Dumez v. Helaba, [1990] ECR 1–49.

12. [1990] ECR 1–27.

13. Peters v. ZNAV, [1983] ECR 987.

14. See Schack, H., Internationales Zivilverfahrensrecht (1991) Rn 261 et seq. with further references.Google Scholar

15. Cf., Effer v. Kantner, [1982] ECR 825, in which the defence that the contract was void did not lead to the declining of jurisdiction.

16. See supra section 3.

17. Some jurisdictions, however, recognize the right to set aside also dispositions of a noncontractual nature, e.g., within die field of succession.

18. In a case where the demand for compensation was based on contract, tort and enrichment, Kalfelis v. Schröder, [1988] ECR 5565, the Advocate-General came to the conclusion that the contract aspect had supremacy, p. 5577. Thus, only Article 5(1) should ‘determine the jurisdiction of the court, since the matters relating to contract will “channel” all the aspects of the dispute’, cf., infra n. 22.

19. Schack, , op. cit, supra n 14, Rn 988Google Scholar; Verschraegen, B., ‘Die intemationale Gläubigeranfechtung aufierhalb des Konkurses’, ZfRV (1986) p. 272 at p. 288Google Scholar (with detailed overview of earlier literature); Hansen, H., ‘Internationalprivatrecht der Gläubigeranfechtung’, ZIP (1981) p. 569 at p. 572 et seq.Google Scholar; Schmidt-Räntscn, J., Die Anknüpfung der Gläubigeranfechtung auβerhalb des Konkursverfahrens (1984) p. 123 et seq.Google Scholar

20. Even if the Rome Convention allows dipeçage, Art 4(1) in fine, the hostility towards the method as such is strong in many jurisdictions; see, e.g., England: Lasok, D. and Stone, P.A., Conflict of Laws in the European Communities (1987) p. 361Google Scholar et seq.; Sweden: Bogdan, M., Svensk internationell privat- och processrätt [Swedish Private International Law], 3rd edn. (1987) p. 217.Google Scholar

21. It should be noted that a new case on this issue is pending before the Court, see infra n 51.

22. Kalfelis v. Schröder, [1988] ECR 5565. The defendants were sued in contracts, torts and enrichment after having caused losses in future transactions. The Court's ruling concerned whether the forum delicti, other than the forum contractus, had jurisdiction. An interesting line of reasoning was presented by the Advocate-General, p. 5577, leading from an interpretation of Peters v. ZNAV, [1983] ECR 987 to the conclusion that the base of the other grounds was ‘for the most part’ the non-performance of the contractual obligations. The Court, to the contrary, applied a more restrictive attitude to the special jurisdiction laid down in Art. 5 and ruled that die national court has jurisdiction only over a case in so far as it is based on either contract or tort, cf., supra n. 18.

23. Even if totally objective rules can be found in domestic laws also on actio Pauliana outside bankruptcy, frequent as they are within, there is still a similarity with tort, since strict liability is recognized in some circumstances.

24. Kalfelis v. Schroder, [1988] ECR 5565 and more explicit in Dumez v. Helaba, [1990] ECR 1–49, both sued in contract with accessory tortious grounds.

25. This restriction was not clearly pointed out by the Court in Kalfelis v. Schröder, [1988] ECR 5565, only indicated by the unclear phrase ‘in certain circumstances’.

26. Kalfelis v. Schröder, [1988] ECR 5565; Dumez v. Helaba, [1990] ECR 1–49; cf., infra n. 45 et seq.

27. Reichert v. Dresdner Bank, [1990] ECR 1–27, applying Sanders v. van der Putte, [1977] ECR 2383; Dijnstee v. Goderbaurer, [1983] ECR 3663; Rösier v. Rottwinkel, [1985] ECR 99.

28. On the obligation: De Bloos v. Bouyer, [1976] ECR 1497; Ivenel v. Schwab, [1982] ECR 1891; Schenavai v. Kreischer, [1987] ECR 239. On the conflict based determination of the place of performance: Zelger v. Salinitri, 1 [1980] ECR 89. Some references to the wide literature may be given: Kropholler, J., Europäisches Zivilprozeβrecht, 3rd edn. (1991)Google Scholar Art. 5, Rz 7 et seq.; Lasok, and Stone, , op. cit., supra n. 20, p. 216Google Scholar et seq.; Schack, , op. cit., supra n. 14, Rn 265 et seq.Google Scholar

29. Rev.crit.dr.int.priv. (1991) p. 151, para. 12.

30. The translation problems are clearly shown here: According to the report in [1990] ECR I–27 the action ‘is based on the creditor's personal claim against the debtor’ but according to the report published in the new periodical International Litigation Procedure, [1990] I.L.Pr. 105, the action ‘arises from the claim, viz. the creditor's right in personam against his debtor’; none of these translations is very successful but they reflect the difficulties when trying to dress the Civil law concepts of contractenrecht and zakenrecht in a Common law costume.

31. The action has ‘pour objet de protéger le droit de gage dont peut disposer le [creancier] sur le patrimoine du [débiteur]’, see supra n. 29.

32. Cf., the ruling of the Court in Kalfelis v. Schröder, [1988] ECR SS65, supra n. 22, that the national court seised is competent to entertain only the claim that gives jurisdiction.

33. The ruling in Reichert v. Dresdner Bank, [1990] ECR 1–27.

34. Cf., supra section 3 and n. 19.

35. Cf., Kalfelis v. Schroder, [1988] ECR 5565.

36. Bier v. Mines de potasse d'Alsace, [1976] ECR 1735.

37. It should be noted mat mere is not enough similarity between the creditor in an actio Pauliana and a person suffering indirect loss from harm caused to one of his debtors, die latter situation being addressed by the Court in Dumez v. Helaba, [1990] ECR 1–49.

38. [1990] ECR 1–27.

39. Bier v. Mines de potasse d'Alsace, [1976] ECR 1735, using the expression ‘where the damage occurs’.

40. On the split opinion whether there is jurisdiction at the place of business in a case of purely financial loss, see Dumez v. Helaba, [1990] ECR 1–49, per the Advocate-General at p. 70. The plaintiff in that case argued for jurisdiction at his place of business although he only suffered indirectly from the event which directly caused harm to his debtors in another state.

41. See, e.g., Schack, , op. cit., supra n. 14, Rn 305Google Scholar, and the Advocate-General in Dumez v. Helaba, [1990] ECR 1–49, at p. 67 et seq., bom with further references.

42. [1990] ECR 1–49.

43. Reichert v. Dresdner Bank, [1990] ECR 1–27 at p. 32.

44. The Commission, ibid., also mentions the possibility of founding jurisdiction on Art 24, since ‘some authors’ consider mat the actio Pauliana ‘falls within the category of protective measures’. Such a classification was, hitherto, unknown to the present author; the similarities seem to be very artificial.

45. A recent interesting overview and an analysis of French theories are presented by B. Ancel in a note to Reichert v. Dresdner Bank, Rev.crit.dr.int.priv. (1991) p. 151 at p. 156 et seq.

46. Dumez v. Helaba, [1990] ECR 1–49, para. 16: ‘only by way of exception … special jurisdiction [is attributed] in certain cases’.

47. Ibid., para. 17.

48. See supra section 3 and n. 19.

49. Kalfelis v. Schröder, [1988] ECR 5565.

50. Reichert v. Dresdner Bank, [1990] ECR 1–27.

51. After a second reference in the case Reichert v. Dresdner Bank the question of special jurisdiction under Art. 5(3) is pending before the Court. During the course of publication of this contribution, the ruling of the Court was delivered, stating that the actio Pauliana is not within the scope of Art. 5(3), see [1992] I.L.Pr. 202; the full text of this judgment has not been available to the present author during the time of proof-reading.