The very people who ordinarily championed affirmative action as a cornerstone of a decent society — for giving a needed leg up to the systemically disadvantaged — had no trouble understanding the other dimension of the policy — an unfair preference for the unqualified.
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The map is scale-accurate and doesn't have a clearly defined center, unlike some maps that place the continent of origin in the "center of the world," so to speak, which gives unfair preference and perspective to whoever is making the map.
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The purpose of ISDS protections in NAFTA, or in any multilateral trade agreement, is to ensure that businesses investing abroad are not subject to unfair preference at the hands of local legal courts or jurisdictions in the event of a dispute over anything from tax payments to zoning rules.
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The case has caused questions to be raised if the wealthy receive unfair preference in the legal system, and compared to Ethan Couch, whose "affluenza" defense famously earned him probation.
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On 31 March 1933 the company's members pass a resolution to put the company into voluntary liquidation. The liquidators then sought to challenge the payment to the creditor as an unfair preference under section 265 of the Companies Act 1929 (which incorporated the unfair preference regime from section 44 of the Bankruptcy Act 1914). In the December 1933 the creditor repaid the sums to the liquidator. The debenture holder then contested that those sums were caught by the debenture, and should be paid to the debenture holder in preference to the general body of creditors.
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Most notably, the fraudulent transfer always reduces the net worth of the transferor while the preference does not. Also, it is not necessarily for the paying party to go into bankruptcy in order to have a transaction which is a fraudulent conveyance set aside in most legal systems, and most legal systems do not require intention to defraud in order to establish an unfair preference. There is not normally any requirement to prove an intention to defraud to recover assets under an unfair preference application. However, similar to fraudulent conveyance applications, unfair preferences are often seen in connection with asset protection schemes that are entered into too late by the putative bankrupt.
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The case is still treated as good law and authoritative as to the proposition that it states. However, in Re Yagerphone Ltd [1935] 1 Ch 392 the opposite conclusion was reached in relation to the proceeds of any action by the liquidator to set aside a transaction as an unfair preference.
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A liquidator may challenge transactions entered into in the twilight period prior to insolvency where such transactions constitute either an unfair preference or an undervalue transaction.Companies Law, section 145 and section 146. However there is no separate avoidance regime for voidable floating charges or for extortionate credit transactions. A liquidator can also pursue former directors (including shadow or de facto directors) and officers of the company for fraudulent trading (but not for mere insolvent trading).
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A transaction is an unfair preference if the company and the creditor are parties to the transaction and the transaction results in the creditor receiving from the company, in relation to an unsecured debt owed to the creditor, a greater amount than it would have received in relation to the debt in a winding up of the company. The liquidator will be required to prove the various elements in order to retrieve the monies paid out by the company. These include that: # there was a transaction between the company and a creditor; # the transaction was an insolvent transaction (that is the company was insolvent at the time of the transaction or the transaction caused the company to become insolvent); # the transaction occurred within six months of the relation back date or within four years of the relation back date if the transaction is with a related entity; and # the creditor received more than it would have in a winding-up of the company. If a transaction is held to constitute an unfair preference, the recipient will be required to repay the benefit received from the company to the liquidator for general distribution to all creditors.
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The liquidator will normally have a duty to ascertain whether any misconduct has been conducted by those in control of the company which has caused prejudice to the general body of creditors. In some legal systems, in appropriate cases, the liquidator may be able to bring an action against errant directors or shadow directors for either wrongful trading or fraudulent trading. The liquidator may also have to determine whether any payments made by the company or transactions entered into may be voidable as a transaction at an undervalue or an unfair preference.
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The usual reason why a bona fide purchaser would be protected is because it has no notice of the conveyance because it has not been recorded. Also, a lack of prompt recording of the transfer may create an unfair preference under some circumstances pursuant to 11 U.S.C. 547. Therefore, it behooves purchasers and mortgage lenders to record their deeds or mortgages, respectively, to prevent this outcome. Once an instrument affecting the title to real estate has been recorded, the law holds that everyone is deemed to know of its existence, even if they haven't searched the records in the recorder's office.
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In some countries, the assets are treated in the normal way, and may be taken by any secured creditors who have a security interest which catches the assets (characteristically, a floating charge).See Re Oasis Merchandising Services Ltd (1997) BCC 282, now superseded by legislation. However, some countries have "ring-fenced" recoveries of unfair preferences so that they are made available to the pool of assets for unsecured creditors. An unfair preference has some of the same characteristics as a fraudulent conveyance,In the United Kingdom, see section 423 of the Insolvency Act 1986 but legally they are separate concepts.
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Insolvency Act, Part XVII A liquidator may challenge transactions entered into in the twilight period prior to insolvency where such transactions constitute either an unfair preference, undervalue transaction, voidable floating charge or extortionate credit transaction.Insolvency Act, Part VII A liquidator can also pursue former directors (including shadow or de facto directors) and officers of the company for either misfeasance or insolvent trading.Insolvency Act, Part VIII The Insolvency Act also regulates receiverships, including administrative receiverships. Under British Virgin Islands law it is possible to appoint an administrative receiver pursuant to a floating charge over all or substantially all of a company's assets and undertaking.
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Re Yagerphone Ltd [1935] 1 Ch 392 was a United Kingdom insolvency law decision relating to unfair preferences and the proceeds of any claims by a liquidator for unfair preferences, and in particular determining the priority of claims between the general body of creditors and the holder of a floating charge. The case held that because the power to challenge a transaction as an unfair preference was a statutory right vested in the liquidator alone, the proceeds of any action were not "property of the company" and as such they were not caught be a floating charge which was expressed to include after acquired property (distinguishing Re Anglo-Austrian Printing & Publishing Union [1895] 2 Ch 891). Bennett J held that the proceeds were impressed by a statutory trust for the general body of creditors.
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Insolvent transactions are transactions entered into by a company whilst insolvent, or transactions entered into by the company the result of which caused the company to become insolvent. An insolvent transaction may be voidable when one of the following conditions apply: # It was entered into during the 6-month period immediately before the relation back day or during the period between the relation back day and the winding up; # it was an uncommercial transaction entered into during 2 years prior to relation back day; # it was a related entity transaction during the 4-year period prior to the relation back day; # it involved a situation where the company was a party to an unfair preference or uncommercial transaction in order to defeat, delay or interfere with the rights of any or all of its creditors and the transaction was entered into during the ten years immediately prior to the relation back day. There are two categories of insolvent transactions: unfair preferences, and uncommercial transactions.
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