词条 | Anti-deprivation rule |
释义 |
The anti-deprivation rule (also known as fraud upon the bankruptcy law) is a principle applied by the courts in common law jurisdictions (other than the United States){{efn|which has its own statutory rules barring ipso facto clauses in the event of bankruptcy}} in which, according to Mellish LJ in Re Jeavons, ex parte Mackay,[1] "a person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws." Wood VC had earlier observed{{efn|relying on {{cite CommonLII|litigants=Higinbotham v Holme|link=|reporter=ER|year=1812|num=249|volume=34|firstpage=451|parallelcite=19 Ves Jun 88|date=6 May 1812|courtname=|juris=}}}} that "the law is too clearly settled to admit of a shadow of doubt that no person possessed of property can reserve that property to himself until he shall become bankrupt, and then provide that, in the event of his becoming bankrupt, it shall pass to another and not to his creditors."[2] General schemeIt arises from the general principle (known as the "rule against repugnancy" in property law) that a grantor may not derogate from his own grant by giving an absolute interest in an asset and then providing for it to be clawed back otherwise than for fair value in stated eventualities, including (but not limited to) bankruptcy and winding up.{{sfn|Goode|2011|p=218}} This is considered to consist of several branches: {{Tree list}}
96. The relationship between the anti-deprivation principle and the pari passu rule is both dependant and autonomous. The former is concerned with contractual arrangements which have the effect of depriving the bankrupt estate of property which would otherwise have formed part of it. The pari passu rule governs the distribution of assets within the estate following the event of bankruptcy. It therefore invalidates arrangements under which a creditor receives more than his proper share of the available assets or where ... debts due to the company on liquidation were to be dealt with other than in accordance with the statutory regime.[6] }} In 2012, the Chancery Division, in assessing the football creditors rule, held that it was valid and did not violate either the anti-deprivation rule or the pari passu rule. In his judgment, Richards J, relying on Belmont Park, declared:[7]
Aspects of the ruleWith respect to the anti-deprivation rule, Patten LJ has observed that "the individual bankrupt or insolvent company may not contract at any time, either before or after the making of the bankruptcy or winding-up order, for its property subsisting at that date to be disposed of or dealt with otherwise than in accordance with the statute."[8] It is argued that this rule can therefore be subdivided into two branches: the "insolvency-triggered deprivation" rule looks to disposals, and the "contracting out" rule to dealings.{{sfn|Worthington|2011|p=27}} These subrules target two distinct strategies that a debtor might pursue:{{sfn|Worthington|2011|p=27}}
All these anti-avoidance rules are, however, subject to the very large exception that creditors remain able to jump up the priority queue, through the creation of a security interest. Scope of applicationCertain types of arrangements are not considered to offend the rule:
Other types are normally considered to offend:
Contracting outThis case arises infrequently, but it did so notably in British Eagle International Air Lines Ltd v Compaigne Nationale Air France.[9] Several principles arise from it:{{sfn|Worthington|2010|pp=32{{endash}}33}}
In Lomas v JFB Firth Rixson Inc[5] it was argued that certain provisions in standard form ISDA Master Agreement might offend against the rule; specifically that if an Event of Default (as defined) suspended the right of the Defaulting Party to receive payment indefinitely, then that would mean that if the Non-Defaulting Party went into liquidation, the operating effect of the provision was to deprive the company's creditors of assets as a consequence of it going into liquidation. However the Court of Appeal considered the principles outlined in Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd,[3] and held that "If this is the touchstone then it is difficult to see how Section 2(a)(iii) of the Master Agreement can be said to offend against the anti-deprivation principle. ... There is no suggestion that it was formulated in order to avoid the effect of any insolvency law or to give the non-defaulting party a greater or disproportionate return as a creditor of the bankrupt estate."[10] Insolvency deprivationThis subrule has been described by Cotton LJ as holding that "there cannot be a valid contract that a man's property shall remain his until his bankruptcy, and on the happening of that event shall go over to someone else, and be taken away from his creditors."[11] This is considered to be a true anti-deprivation rule,{{sfn|Worthington|2010|p=33}} and several issues arise from it:{{sfn|Worthington|2010|pp=33{{endash}}35}}
The Canadian courts have extended this further, declaring that termination clauses that are triggered where non-payment of obligations is indirectly caused by the debtor's insolvency should be deemed to have been caused by the insolvency.[14] Further reading
Notes{{notelist}}References1. ^(1873) LR 8 Ch App 643 2. ^{{cite CommonLII|litigants=Whitmore v Mason|link=|reporter=ER|year=1861|num=960|volume=70|firstpage=1031|pinpoint=|parallelcite=2 J&H 204|date=18 November 1861|courtname=|juris=}} 3. ^1 {{cite BAILII|litigants= Belmont Park Investments PTY Ltd v BNY Corporate Trustee Services Ltd & Anor|link=Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd|court=UKSC|year=2011|num=38|parallelcite= [2012] 1 AC 383|pinpoint=par. 1|date=27 July 2011|courtname=|juris=}} 4. ^Belmont Park, par. 79 5. ^1 {{cite BAILII|litigants=Lomas v JFB Firth Rixson Inc |court=EWCA |year=2012 |num=419 |date={{date|2012-04-03}}|courtname=}} 6. ^Lomas, at para 96. 7. ^{{cite web|title = Pari passu rule on insolvency clarified and limited|url = http://www.linklaters.com/pdfs/mkt/london/Football_creditor_rule.pdf|publisher = Linklaters|date = 29 May 2012}}, discussing {{cite BAILII|litigants= HM Revenue and Customs v The Football League Ltd & Anor|link=|court=EWHC|division=Ch|year=2012|num=1372|parallelcite=|para=73{{endash}}104|date=25 May 2012|courtname=|juris=}} 8. ^{{cite BAILII|litigants= Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd & Anor|link=|court=EWHC|division=Ch|year=2009|num=1912|parallelcite= [2010] Ch 347 |pinpoint=par. 113|date=28 July 2009|courtname=|juris=}} 9. ^[1975] 1 WLR 758 10. ^Lomas, at paragraph 87. 11. ^Ex parte Jay, In re Harrison (1880) 14 Ch D 19, at 26 12. ^Ex parte Newitt, re Garrud (1880) 16 Ch D 522 13. ^In re Detmold (1889) 40 Ch D 585 14. ^{{cite web|title = Beware Contractual Provisions triggered (even indirectly) by a Party’s Insolvency|author = Anthony Alexander|url = http://www.canadianappeals.com/2013/03/06/the-second-opinion-beware-contractual-provisions-triggered-by-a-partys-insolvency/|date = 2013-06-06|publisher = McCarthy Tétrault|accessdate = 2013-11-04}}, discussing {{cite CanLII|litigants=Aircell Communications Inc. v. Bell Mobility Cellular Inc.|link=|year=2013|court=onca|num=95|format=|pinpoint=|parallelcite=|date=2013-02-14|courtname=|juris=}}, which extended upon {{cite CanLII|litigants=C.I.B.C. v. Bramalea Inc.|link=|year=1995|court=onsc|num=7420|format=canlii|pinpoint=|parallelcite=|date=1995-12-13|courtname=auto|juris=}} 2 : Insolvency|Bankruptcy |
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