ISBN:  Unavailable

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Page count: 52

This study allows to suggest two different solutions to ascertain the law applicable to transactions defrauding creditors in legal actions filed outside insolvency proceedings. A national conflict of laws rule may well prescribe the application of the lex fori as occurs in the Swiss legal order. This solution guarantees legal certainty within a national legal system and is consistent with the purely unilateral perspective inherent to any such system. Yet, a supranational rule - for example a European Union rule - can authoritatively draw the frontiers of each national law's empire. In our opinion, such a rule could and should be more flexible and take into account the need for judicial evaluation of good faith on a case-by-case basis. The goal of respecting and preserving the legitimate expectations of the parties in good faith has the utmost importance regarding the pauliana. Predictability does not derive automatically from written and exhaustive rules. Predictability means that the party in good faith, whose behavior is consistent with the law governing her rights and obligations, is certain that her struggle for justice in a European Court will be successful.