Actio pauliana is an instrument of protecting of the creditors in the event of
debtor’s fraudulent transfers of assets which render him unable to satisfy creditors. The
question of the law applicable to actio pauliana has not been dealt with in Rome I nor in
Rome II Regulation. There is no specific rule in the Polish new Act on Private International
Law of 2011 either. At the same time, the particular features of this instrument —
i.e. the fact that it is linked to contract, tortious liability, property law and enforcement of
claims — make it difficult to be classified within the existing conflict of laws rules.
In the doctrine and case there are many diverse proposals to solve this issue. The
authors present seven different methods used in order to ascertain law applicable to actio
pauliana. They are the following: the law applicable to protected claim, the law applicable
to fraudulent transfer, tortious classification, the law of the state where transferred
assets are located, the law of the state where the main interests of debtor are centred,
the closest connection test and the cumulative or parallel application of two or more
legislations.
After examining the existing propositions, authors take a view that it is inevitable
to differentiate between various elements of actio pauliana, and to subject them to either
the law applicable to protected claim or to fraudulent transfer. It is nevertheless suggested
that the law applicable to protected claim should play a leading role, although it may
be necessary to allow for the intervention of the law applicable to fraudulent transfer, if
this would be justified by the need to protect expectations of third parties
