Moreover,
as the relevant BIT remains in force, and
as the contracting states have not taken any other relevant action either, the tribunal can not work from the premise that Achmea renders the BIT
void or inapplicable
as a
matter of international
law.
However, the third paragraph
of recital 12 complicates
matters as it provides that where a member state court exercising jurisdiction under the Brussels I (recast) or national
law has determined that an arbitration agreement is null and
void, inoperative or incapable
of being performed, the court's judgment on the substance
of the
matter can be recognised or enforced in accordance with Brussels I (recast)(although this is expressed
as without prejudice to the competence
of member state courts to decide on recognition and enforcement
of arbitral awards in accorded with the New York Convention which «takes precedence over» Brussels I (recast)-RRB-.
There are basically two kinds
of transactions covered, those with an intent to defraud creditor which can be
void even if you are solvent at the time, and those that are fraudulent
as a
matter of law without regard to intent because they transfer property for less than reasonably equivalent value at a time when someone is, or imminently will be, insolvent.