Actio Pauliana

RESUMEN: Las particularidades de la denominada acción pauliana o acción revocatoria, como instrumento de garantía del acreedor para solicitar la revocación de un contrato, acto o negocio jurídico que el deudor haya podido realizar en su perjuicio, plantea desde el punto de vista del Derecho internacional privado cuestiones de competencia judicial internacional en supuestos de litigación transfronteriza. Precisamente la reciente sentencia del Tribunal de Justicia de la Unión Europea, dictada el pasado 4 de octubre de 2018 en el asunto Feniks (C-337/17), viene a resolver una cuestión prejudicial plateada sobre la aplicación a este tipo de acciones de las normas sobre competencia desde el punto de vista institucional, esto es, en el marco del Reglamento Bruselas I bis. El Tribunal de Justicia, contradiciendo en parte su previa jurisprudencia, admite la aplicación el fuero del lugar de cumplimiento de las obligaciones contractuales, contenido en el artículo 7.1 letra a), como alternativa al fuero general del domicilio de deudor del artículo 4. Además de las evidentes consecuencias prácticas dentro de la Unión, esta nueva doctrina puede plantear cuestiones de seguridad jurídica desde el punto de vista del deudor, en relación con la necesaria previsibilidad de los fueros de competencia. ABSTRACT: The so-called actio pauliana is an instrument of guarantee of the creditor to request the revocation of a contract, act or legal transaction that the debtor may have done to his detriment, which raises some jurisdiction issues in cases of cross-border litigation. Nowadays this issue has regained relevance because of the recent ruling of CJEU (Case C-337/17 Feniks; Judgment of 4 October 2018). The CJEU has resolved whether that type of action is covered by the rule of international jurisdiction provided for in Article 7(1)(a) of Brussels I Regulation Recast. The Court of Justice admits the application of the rule of the performance´s place of the contractual obligations, contained in article 7.1 a), as an alternative to the general rule of the defendant’s domicile (article 4). This ruling contradicts part of its prior jurisprudence and the practical consequences of it are very significant in the field of judicial cooperation in civil and commercial matters within EU. The global assessment of the ruling necessarily varies depending on the position taken as a reference, that is, from the debtor or the creditor point of view. In particular, from debtor´s approach this ruling is founded in presumptions of predictability which can not be given.

The article searches the historical roots of the institute of the revocation of the refusal of heritage by the creditors of the heir, established as in Bulgarian civil law (Art. 56 of the Inheritance Act) as in some other European legislations. It was made an analysis of the system of acquisition of heritage in Ancient Rome by the different categories of heirs in the different historical periods. On the bases on this, was made a conclusion which categories of heirs could refuse a heritage, which theoretically can be attacked by their creditors. Based on literary analysis a thesis is argumented that the institute of revocation was not established in Roman private law. The refusal of heritage could not been attacked with Actio Pauliana either. Roman law provided means for protection to the interests of creditors of the testator, but not for the creditors of the heir. On the contrary, according to Bulgarian legislation each refusal of heritage can be attacked under the conditions of art. 56 of the Inheritance Act. The law requirements for this revocation are indicated in short.  It is concluded that the roots of this institute have to be searched in a later historical period.
Key words: acceptance of heritage; refusal of heritage; revocation of the refusal of heritage; creditors of the heir

The actio pauliana is a rara avis within Private Law, the principle of which is to uphold sound private relationships. The principle, however, is called into question by acts of fraudulent transfer - the challenging of a valid and effective act in order to recover a creditor’s losses involves two conflicting interests that makes identification of the law applicable to the actio pauliana a difficult question to solve. This paper deals with this longstanding
problem by examining new EU conflict of laws instruments, which provide the basis for determining the allocation of a debtor’s insolvency among his creditors.

In the words of Alan Greenspan, ‘Corruption, embezzlement, fraud, these are all characteristics which exist everywhere. What successful economies do is keep it to a minimum. No one has ever eliminated any of that stuff’. This paper contributes to a comparative analysis of the laws related to the fraudulent conveyances or being precise Paulian action provided in the English and Pakistani Laws. In the beginning, it opens up with a brief insight into what Paulian action really means and its after-effects. Gradually, it builds its focus upon the English law regarding Paulian action. The Statute of 13 Elizabeth becomes the proverbial measuring stick as the paper helpsdescribe the historical background along with the need for such an Act in the context of England. Afterwards, it looks upon the courts praxis since the enactment of such laws where Twynes’ case continues toact as precedent for future cases. The paper then provides for an in depth study into Pakistani laws on Paulian action. It is understood that a combination of few Acts suffice the search into such laws. The historical Transfer of Property Act, 1882 enacted by the British during their rule in the subcontinent provides impetus to other laws in vogue for satisfying laws regarding fraudulent transfers in Pakistan. The surge does not end here, it continues to explore the judicial practice regarding such laws in the context of Pakistan where it reflects upon who bears the onus of proof and how to prove fraudulent intention on the part of the debtor. Thus, leading to the conclusion of the paper by briefly analyzing both the laws.


Keywords: Paulian Action; Fraud; Creditor-debtor relationship; Third-parties; English and Pakistani Law; Courts Praxis.