Rethinking the legitimacy of expectations: Speculative crossclaims, fraudulent transactions, and the immunity rules of the European Insolvency Regulation: Finnish (and some Swedish) perspectives
Bibliographic record
Abstract
Abstract As a general principle of the law of the European Union, legitimate expectations should be respected as much as possible. The EU Regulation on Insolvency Proceedings (recast) (EIR) aims to achieve this goal by providing a comprehensive set of rules governing the choice of law in cross‐border insolvency cases. Despite the academic criticism targeted at these rules, they remained intact in the recast EIR. The basic problem discussed in this article is that according to the prevailing regime created by the EIR, the expectations of the general body of creditors might be ignored, regardless of whether the expectations of the counter party—the favored creditor or any other contracting party of the debtor—are actually illegitimate. The purpose of this article is to evaluate this discrepancy and to propose means that might allow for its rejection at both the theoretical and practical levels. It will also be argued that the CJEU's judgment in Vinyls Italia (C‐54/16) is insufficient to tackle the basic problem, even though the abuse of the freedom of the choice of law was clearly rejected by the CJEU. The problem discussed in this article is not the abusive choice of the applicable law, but the fraudulent character of the transaction concluded under said law. Furthermore, it seems highly unlikely that the public policy exception (ordre public) would resolve the basic problem, as immunity protection, provided by the various leges causae, is adopted as an integral part of the EIR, with no exceptions for fraudulent or otherwise inappropriate transactions or arrangements. Therefore, immunity protection is part of the public policy of the EU itself. To conclude this article, it is suggested that immunity protection not be revoked but limited only to crossclaims and transactions with no speculative, fraudulent, or otherwise inappropriate motives. This would most likely require a new preliminary ruling of the CJEU. To concretize the problems discussed in this article, the choice of law rules of the EIR regarding creditors' right to set‐off and transaction avoidance are evaluated and applied in the context of the insolvency law of Finland, and, to the extent the basic principles of the national laws are similar, the insolvency law of Sweden.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.022 | 0.039 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.001 |
| Science and technology studies | 0.007 | 0.051 |
| Scholarly communication | 0.023 | 0.017 |
| Open science | 0.004 | 0.006 |
| Research integrity | 0.017 | 0.011 |
| Insufficient payload (model declined to judge) | 0.003 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".