17 Liquidator's Powers in Relation to Preferences and Fraudulent Transfers

(1) Subject to sub-article (2), the liquidator of an insolvent party to a netting agreement may not avoid or render ineffective:
(a) a payment, transfer, delivery, substitution or exchange of cash, collateral or any other interests or property under or in connection with the netting agreement from the insolvent party to the non-insolvent party; or
(b) an obligation under the netting agreement, or to which the netting agreement applies, of the insolvent party to make a payment, transfer, delivery, substitution or exchange of cash, collateral or any other interest or property; or
(c) a transaction entered into by the insolvent party in accordance with the terms of the netting agreement to give effect to the netting provided for by the agreement,
on the grounds of it constituting a preference by the insolvent party to the non-insolvent party.
(2) Sub-article (1) does not prevent a liquidator of an insolvent party from exercising a power to avoid or render ineffective a payment, transfer, delivery, substitution, exchange obligation or transaction of a kind referred to in sub-article (1) if there is clear and convincing evidence that the insolvent party:
(a) made the payment, transfer, delivery, substitution or exchange; or
(b) incurred the obligation; or
(c) entered into the transaction,

with actual intent to hinder, delay, or defraud a person to which the insolvent party was indebted or became indebted, on or after the date on which the transfer, delivery, substitution or exchange was made, the obligation was incurred or the transaction was entered into.
Derived (as from 19th October 2017).