Security rights, the European Insolvency Regulation and Concerns about the Non-application of Avoidance Rules

This paper addresses debtors who have entered insolvency proceedings in a Member State of the EU so that the European Regulation on Insolvency Proceedings applies, and before the opening of insolvency proceedings they granted some form of security to another party. The paper analyses the issues that are relevant to determining whether the granting of security prior to the advent of insolvency proceedings under the Regulation can be avoided and it examines the extent to which pre-insolvency transactions involving security would be protected by Articles 5 and 13 of the Regulation. It then analyses the concerns that might be articulated in relation to the application of Article 13 and what options are available to the EC to address these concerns.