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In its interpretation of article 13 of the Insolvency Regulation, Stefan Ramel, a barrister at Guildhall Chambers, explains why the recent Nike decision is a positive and welcome judgment from the Court of Justice.
Nike European Operations Netherlands BV v Sportland Oy C-310/14  All ER (D) 151 (Oct)
The Court of Justice gave a preliminary ruling deciding, among other things, that article 13 of the Regulation (EC) 1346/2000 (the Insolvency Regulation) should be interpreted as meaning that its application was subject to the condition that, after taking account of all the circumstances of the case, the act at issue could not be challenged on the basis of the law governing the act (lex causae).
This case involved an attempt by a Finnish insolvency practitioner (IP) to set aside a number of payments made to a Dutch concern in the months leading up to the formal insolvency of a Finnish entity. The claim was based on Finnish transaction avoidance insolvency laws.
The Dutch company was Nike European Operations Netherlands BV. The Finnish entity was Sportland Oy. The companies were bound by a Dutch law governed franchise contract whereby Nike supplied goods to Sportland. By early 2009, Sportland owed Nike close to €200,000. Between 10 February and 20 May 2009, Sportland settled its debt by way of ten payments to Nike.
However, on 5 May 2009 a petition to open insolvency proceedings against Sportland was presented to the Finnish courts, and a few weeks later, on 26 May 2009, main insolvency proceedings were opened against Sportland. Finnish insolvency law contains provisions designed to unwind certain pre-insolvency transactions—para 10 of the law on recovery of assets, the ‘takaisinsaannista konkurssipesään annettu laki’.
At this point, it is necessary to refer to two provisions contained in the Insolvency Regulation. Article 4 contains provisions setting out the law which
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