European Court of Justice in NK v BNP case (C-535/17): Tortious suit brought by liquidator against a
In the NK v BNP case, the ECJ ruled on February 6th 2019 that a claim, brought by a liquidator against a third party having acted wrongfully towards the creditors, based on tort, is governed by the Brussels I Regulations and not by the Insolvency Regulation.
This means that international jurisdiction over this type of claim is broadly determined by the defendant's seat (EU Brussels I Regulation) rather than by the place of bankruptcy proceedings (EU Insolvency Regulation).
In the present case, the Dutch liquidator had brought a so-called 'Peeters/Gatzen' action against the Belgian bank BNP Paribas Fortis for not preventing funds from disappearing out of the bankrupt company. This "Peeters/Gatzen" claim under Dutch law is very similar to the Belgian claim for compensation for collective damage. As is the case with a "bankruptcy Paulina," the proceeds of such a P/G claim fall into the bankrupt estate. However, the ECJ, following the opinion of Advocate General Bobek, ruled that although an action is brought by the liquidator after the opening of insolvency proceedings and that that liquidator acts in the interests of creditors does not, in substance, alter the legal nature of that action, which is separate from the insolvency proceedings and remains subject in substance to rules of ordinary law.
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