The Role of Fraudulent Transfer Rules in Corporate Insolvency

Abstract

The author goes beyond the well-known topic of US-type fraudulent transfer rules as an alternative to the European legal capital rules and deals with the role played in company law by fraudulent transfer provisions and, more generally, by insolvency law rules that work in a functionally comparable way. After an analysis of some tendencies at work especially in Europe the writer puts forward the idea that avoidance is not simply enforcement but expresses - as a substantive law device - an evaluation, not so much of the result of the debtor's behaviour as the debtor's behaviour in itself (and on its "correctness" and/or on its "reasonability"), in order to counterbalance - by virtue of its compulsory nature - company law that is becoming increasingly less mandatory.