The harmonisation of transaction avoidance in the <scp>EU</scp> (1st edition). By OrianaCasasola, Cheltenham: Edward Elgar. 2023. pp. 230. £90. ISBN: 978‐1‐80392‐837‐1, Hardback

Differences in transaction avoidance laws in EU member states have long undermined prospects for avoidance, leading to possible unfairness in the distribution of the debtor's estate, and making these provisions an obvious candidate for inclusion in a selective approach to harmonisation of insolvency law.1 Nonetheless, this area of law presents considerable complexities, given differences in the laws of different EU member states that make the design of a harmonised set of avoidance laws a difficult process both in the design of relevant provisions and in their adoption. This excellent new text offers a fresh perspective on how an EU approach to transaction avoidance may be developed, possibly more easily, whilst stopping short of full harmonisation. The text begins with an outline of the reasons why avoidance laws are necessary and important to insolvency systems. There then follows an examination of the EU approach to harmonisation of insolvency law to date, including the presently unsatisfactory approach to transaction avoidance in the EU Insolvency Regulation (Recast) [2015] OJ L141/19. Whereas Article 6 provides that the matters for which the main insolvency proceedings have jurisdiction include avoidance laws and Article 7 contains an applicable law rule that the law of the state of the opening of proceedings shall apply to avoidance actions, Article 16 enables a person who benefited from a detrimental act to argue that the act is subject to a law other than that of the state of opening of proceedings and that the law of that member state does not contain means for the transaction to be challenged. This Article 16 exception has led to potential loopholes as, effectively, the transaction must be voidable both under the law of the state in which the insolvency proceedings were opened and under the law to which the act was subject. A law with a narrow scope for avoidance, such as that of England and Wales, could (pre-Brexit) effectively be used as a safe harbour.2 As well as highlighting the relevant provisions, there is an insightful discussion in the book of the case law that has addressed ambiguities in the original Regulation and the Recast. Remaining areas of ambiguity as to jurisdiction and conflict of laws in relation to transaction avoidance claims are identified. The book also discusses current differences in the avoidance laws among different jurisdictions, with a detailed examination of the laws applicable in England and Wales, Germany and Italy. The comparative chapters sensibly focus on the three main types of avoidance laws: preferences, transactions detrimental to creditors and gratuitous acts in the three selected jurisdictions. They adopt a thematic approach that looks at objective and subjective criteria, among other factors. There are two chapters: one that discusses the avoidance provisions available in insolvencies and another which deals with private law claims. In focusing on the main types of avoidance laws, it leaves aside other “outlier” laws that might enable transaction avoidance in the three jurisdictions. Although it might have been desirable to see a greater range of jurisdictions and avoidance provisions being considered this was not arguably necessary for this text, given scholarship elsewhere,3 as it enabled a greater depth of discussion of the book's key proposal, whilst also keeping the text to a manageable size. There then follows the book's major contribution, a suggested original approach that might be adopted to address transaction avoidance most effectively in the EU, stopping short of full harmonisation and avoiding the presently messy private international law approach under the Recast. The proposal for partial harmonisation focuses on categorisation of transactions of either a domestic or a cross border nature, focusing harmonisation efforts on the latter. This is an approach which appeals on the basis of key EU principles of subsidiary and proportionality, given that domestic cases would not be impacted. The book sets out a clear approach to identification of cases of a cross border character based on a contractual approach and considers how a harmonised approach can be reconciled with party autonomy. It includes a suggested approach to implementation as well as draft texts of relevant provisions. The text concludes with a critical review of the proposed EU directive on minimum harmonisation of certain substantive areas of insolvency law, including transaction avoidance. This thoroughly researched and referenced text would provide excellent reading material for anyone interested in harmonisation of transaction avoidance laws, both in the EU and beyond, as its approach could be considered as a model for other economic groupings.

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