🇬🇧Cross-Border Insolvency and Avoidance of Prior Transactions

Insolvency is not an event that happens to a company; it is a legal regime that switches on and changes who owns what. The moment a collective procedure opens, the debtor's assets become an estate administered for all creditors together, the people who ran the business lose the power to deal with those assets, and an office-holder — a liquidator, an administrator, a trustee — steps in with statutory powers the previous owner never had. Two of those powers are the reason this page exists. The office-holder can look backwards, at what the debtor did in the months or years before the procedure opened, and unwind transactions that moved value out of reach of creditors. And where the debtor, its assets or its counterparties sit in more than one country, the office-holder can reach across borders through recognition regimes that give a foreign insolvency effect at home.

The practical consequence is the one most planning gets wrong. A transfer that looked final — an asset signed over to a family holding company, a fresh mortgage granted to a friendly lender, a guarantee given for a sister company — is not final while it sits inside an avoidance look-back window. And a structure abroad is not a wall. It raises the cost and lowers the odds of recovery, exactly as an asset-protection design is meant to; it does not place assets beyond the reach of a well-advised office-holder or a creditor who litigates in the right forum.

Four exits people call "closing the company"

The vocabulary is treated as interchangeable and is not. Insolvency, liquidation, wind-down and dissolution describe different things — a financial condition, a class of procedure, a solvent management exercise and a registry act — and only one of them triggers the avoidance and cross-border machinery. Getting the label right is the first analytical step, because it fixes who controls the assets and whether the clock on clawback is running at all.

Read the table as a switch. Only liquidation and its administration-style cousins put an office-holder in charge with power to reopen the past; a rescue procedure sits deliberately in between, rewriting what creditors will be paid going forward without handing anyone the clawback toolkit. That is what makes the English restructuring plan powerful and narrow at once: under Companies Act 2006 s.901G the court can bind a whole dissenting class — cross-class cram down — where the plan has been agreed by 75% in value of at least one class that would receive a payment or has a genuine economic interest in the relevant alternative, and where no member of the dissenting class would be any worse off than in that relevant alternative. It changes the future of the balance sheet, not its past. A solvent wind-down pays creditors in full and leaves nothing to challenge — which is exactly why the honest exit route, taken early, is the one that avoids the whole problem. For regulated firms holding client money the distinction is sharper still and carries its own special-administration regime, set out in the piece on licence withdrawal and wind-down. The general lesson holds across all of them: the label chosen determines whether the past is safe or open.

Debtor, estate and the office-holder

Every insolvency question begins with two identifications that planning routinely blurs: who is the debtor, and whose estate the disputed asset falls into. A group is not one debtor. Each company is a separate legal person with its own creditors and its own estate; an individual shareholder is a third. When an operating subsidiary fails, its estate is built from its assets, and the parent's assets are outside it unless a specific doctrine — a guarantee, a lifting of the veil, a contribution or wrongful-trading order against directors — pulls them in. The reverse is equally true: the failure of a holding company does not, by itself, sweep in the assets of a solvent trading subsidiary; what falls into the parent's estate is its shares in the subsidiary, not the subsidiary's own property.

On the opening of the procedure the debtor's beneficial interest in its assets is committed to the estate for distribution, and the directors' or the individual's power to deal with those assets passes to the office-holder. That displacement is what makes the office-holder, not any single creditor, the person who decides which past transactions to attack — and, in a cross-border case, the "foreign representative" who seeks recognition abroad. A creditor generally cannot run its own clawback claim in a company insolvency; it must persuade the office-holder to act, or in some systems fund the action. The single exception worth flagging is the UK's transaction-defrauding-creditors action, which a victim can bring in its own name.

Before the procedure: when the directors' duty turns to creditors

The look-back windows below are only half of the exposure. The other half runs against the directors personally, and it starts before any procedure opens. Companies Act 2006 s.172(1) tells a director to promote the success of the company for the benefit of its members as a whole; s.172(3) makes that duty "subject to any enactment or rule of law requiring directors, in certain circumstances, to consider or act in the interests of creditors of the company". That reservation is why a dividend, a bonus or an intra-group transfer that was unremarkable in January can be a breach of duty in June, while the company's ordinary governance — the subject of company lifecycle — carries on unchanged around it.

When the switch happens, and what it is not. In BTI 2014 LLC v Sequana SA (UK Supreme Court, 5 October 2022, [2022] UKSC 25) the court answered both halves of the question. There is no free-standing duty owed to creditors: the rule in West Mercia creates no new duty but modifies the established fiduciary duty to act in good faith in the interests of the company, so that creditors' interests enter — and as insolvency becomes inevitable, dominate — the balance. And it engages later than the widest formulation argued for: the trigger is that the company is insolvent or bordering on insolvency, or that an insolvent liquidation or administration is probable, not a mere real but non-remote risk of insolvency at some future point. The reading is unforgiving in both directions. A board that keeps distributing on the shareholders' arithmetic after that point is exposed; a board that freezes at the first bad quarter has misread the test.

If the company does go under, two personal liabilities follow. Insolvency Act 1986 s.214 lets the court order a director to contribute to the assets where, before the winding up began, he knew or ought to have concluded that there was no reasonable prospect that the company would avoid going into insolvent liquidation or insolvent administration; s.214(3) is a defence for the director who took every step to minimise the potential loss to creditors that he ought to have taken, measured by s.214(4) against both a reasonably diligent person with the general knowledge and experience the function requires and that particular director's own knowledge and experience. Fraudulent trading under s.213 is narrower and graver: knowing participation in carrying on the business with intent to defraud creditors. And since 1 October 2015 the office-holder has not needed money of his own to run any of this — s.246ZD, inserted by the Small Business, Enterprise and Employment Act 2015, lets him assign or sell the causes of action under ss.213, 214, 238, 239, 244 and 245 to a third party, which is how an empty estate still funds a clawback claim and why "the liquidator cannot afford to sue" is a weak assumption for a counterparty to plan around.

Where the case runs: COMI, main and secondary proceedings

A company incorporated in one country, managed from a second and holding assets in a third cannot be wound up everywhere at once without chaos, so the modern regimes fix a centre for the main proceeding and let ancillary proceedings run alongside it. The anchor concept is the centre of main interests (COMI) — the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties. For a company there is a rebuttable presumption that COMI is the registered office; the presumption is displaced only by objective factors showing the real head-office functions sit elsewhere, the test the Court of Justice set in Eurofood and refined in Interedil.

The EU's recast Regulation (EU) 2015/848 shows the architecture cleanly. Main proceedings open in the Member State of the debtor's COMI (Article 3(1)) and reach the debtor's assets worldwide; they are recognised automatically in every other Member State (Article 19). Secondary proceedings may open in any Member State where the debtor has an establishment — a place of operations with people and assets — but they bite only on the assets located there (Article 3(2)). The point of the split is coordination, not competition: the secondary proceeding protects local creditors and local assets while the main proceeding steers the whole.

Recognition of a foreign proceeding

Outside the EU the coordinating instrument is the UNCITRAL Model Law on Cross-Border Insolvency (1997), enacted, on UNCITRAL's own count, in 63 States across 66 jurisdictions — including the United States (2005), Great Britain (2006), Canada (2005), Australia (2008) and Japan (2000). Britain adopted it through the Cross-Border Insolvency Regulations 2006; the United States enacted it as Chapter 15 of the Bankruptcy Code. Both use the same vocabulary as the EU regime: a foreign proceeding is recognised as a foreign main proceeding where it is pending in the country of the debtor's COMI, or a foreign non-main proceeding where the debtor merely has an establishment.

What recognition does depends on which kind it is. Under Chapter 15, recognition of a foreign main proceeding brings automatic effects: 11 U.S.C. § 1520 applies the section 362 automatic stay to the debtor and to property within US territorial jurisdiction, and restricts transfers of that property. Recognition of a non-main proceeding brings no automatic stay; relief is discretionary and tailored by the court (§ 1517 sets the recognition test, with the registered-office presumption for COMI in § 1516(c)). The British version works the same way: on recognition of a foreign main proceeding the Schedule 1 Article 20 moratorium applies automatically, staying actions and suspending the debtor's right to dispose of assets.

Which law decides the clawback, and who may bring it

Recognition answers where the case runs. It does not answer the two questions an avoidance claim actually turns on: whose clawback rules apply to the transfer, and whether the foreign office-holder may use the local ones. The general machinery for getting a foreign judgment or award recognised and executed is a separate discipline, set out in cross-border disputes and enforcement; what follows is the part of it that only insolvency has.

On the first question the EU regime is explicit. Article 7(1) of Regulation (EU) 2015/848 makes the law of the State in which proceedings are opened — the lex concursus — the law of the proceedings and their effects, and Article 7(2)(m) puts "the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to the general body of creditors" squarely inside it. A transfer made by a Cyprus company whose main proceedings open in Cyprus is therefore tested by Cypriot avoidance law, wherever the recipient sits. Article 16 then gives the recipient one escape, and only one: the challenge fails if he proves both that the act is subject to the law of another Member State and that that law allows no means of challenging it in the case at hand. Two limbs, both carried by the defendant — not an invitation to pick the friendlier of two systems.

On the second question the American answer is a trap for foreign office-holders and worth memorising. Recognition under Chapter 15 does not put the US avoidance powers into the foreign representative's hands: 11 U.S.C. § 1521(a)(7) authorises the court to grant "any additional relief that may be available to a trustee, except for relief available under sections 522, 544, 545, 547, 548, 550, and 724(a)" — and that exception is the whole toolkit. Section 1523(a) gives the standing back, but only "in a case concerning the debtor pending under another chapter of this title": a full Chapter 7 or Chapter 11 case has to be running alongside the recognition. A foreign representative who wants to attack a US preference must therefore either file a plenary case in the United States or sue under the law of the main proceeding. Where a plenary US case does exist its reach is global from the first day — § 541(a) builds the estate out of the debtor's property "wherever located and by whomever held". The British arrangement is the mirror image: Article 23 of Schedule 1 to the Cross-Border Insolvency Regulations 2006 gives a recognised foreign representative standing to bring the English avoidance actions directly, and s.426 of the Insolvency Act 1986 keeps a separate, older channel open — under s.426(4) UK courts assist courts elsewhere in the United Kingdom and in a "relevant country or territory", which s.426(11) defines as the Channel Islands, the Isle of Man and any territory designated by the Secretary of State, and under s.426(5) the assisting court may apply the insolvency law of either jurisdiction.

A debt in English law does not die abroad. In Bakhshiyeva (Foreign Representative of the OJSC International Bank of Azerbaijan) v Sberbank of Russia (Court of Appeal, 18 December 2018, [2018] EWCA Civ 2802) the foreign representative of an Azerbaijani bank's restructuring asked the English court for an indefinite moratorium under Article 21 of the 2006 Regulations, so that creditors holding English-law debts could not enforce once the Azeri proceeding had closed. The Court of Appeal refused and restated the rule in Antony Gibbs: a debt governed by English law is not discharged by a foreign insolvency proceeding unless the creditor submitted to it, and the Model Law, being procedural, coordinates proceedings rather than substituting one system's substantive law for another's. The planning consequence is concrete. A restructuring at home can bind everything except the English-law paper; creditors on English-law facilities keep a claim that outlives the foreign plan, and a debtor who needs them bound must get them to submit, run an English procedure — a scheme or a Part 26A plan — or accept that the discharge has a hole in it exactly where the syndicated debt is.

The gap Rubin left has an off-the-shelf answer that Britain has not taken. On 2 July 2018 UNCITRAL adopted a second instrument, the Model Law on Recognition and Enforcement of Insolvency-Related Judgments, aimed precisely at judgments that arise as a consequence of, or are materially associated with, an insolvency proceeding — the class avoidance judgments belong to. The Insolvency Service consulted on enacting it together with the Model Law on Enterprise Group Insolvency; in the Government response of 10 July 2023 the enterprise-group instrument was accepted for implementation at the earliest opportunity, while on the judgments instrument the Government said it would first "undertake further work to determine how legal certainty can be maintained", respondents having raised the interaction with the rule in Gibbs. Until that changes, Rubin is still the English answer, and an office-holder planning a cross-border clawback should budget for suing where the defendant actually is.

The stay, and how claims rank

Recognition or the opening of a domestic procedure brings a stay (moratorium): individual enforcement stops, and creditors are channelled into the collective process instead of racing each other to the assets. The stay is what converts a scramble into an orderly distribution — but it does not rewrite the order in which value is shared out, and that order is where most of the money is decided.

Creditors are not equal, and the ranking is the spine of every insolvency. Assets are applied in a fixed waterfall, and a creditor's position in it — not the size of the debt — determines recovery.

Two features of the waterfall drive the scenarios below. First, security genuinely changes the class: a creditor who holds valid security over an asset is paid from it ahead of everyone else, which is precisely why a debtor sliding towards insolvency is tempted to grant late security to a favoured lender — and precisely why the law polices it. Second, set-off is mandatory and runs before distribution: where the debtor and a creditor owe each other mutual sums, the account is netted and only the balance is a claim (or an asset). In England this is automatic and cannot be contracted around: rule 14.25 of the Insolvency (England and Wales) Rules 2016 requires that an account be taken of what the company and the creditor owe each other in respect of their mutual dealings, that the sums due one way be set off against the sums due the other, and that only the balance is provable in the winding up — or payable to the liquidator, where the balance runs the company's way; rule 14.24 does the same in administration. In the US 11 U.S.C. § 553 preserves the right but claws back positions improved by setting off within 90 days of the petition while the debtor was insolvent. Set-off can turn an unsecured creditor into one that recovers in full — up to the amount it owes.

Avoidance: unwinding what happened before

Here is the heart of the regime. Insolvency law does not take the debtor's balance sheet as it finds it on the opening day; it reaches back and reverses transactions that, in the run-up, moved value to some creditors or third parties at the expense of the general body. The grounds are distinct, they are not interchangeable, and each carries its own look-back period and its own thing to prove. Confusing them is the most common analytical error in this area, so the following keeps them apart.

Transactions at an undervalue

The debtor gave something away, or sold it for significantly less than it was worth. In England, section 238 of the Insolvency Act 1986 lets the office-holder undo a transaction at an undervalue entered into within 2 years before the onset of insolvency, provided the company was insolvent at the time or became so as a result (presumed where the counterparty was connected). No bad intent is required — the imbalance itself is the wrong; a defence exists for a transaction entered into in good faith to carry on the business with reasonable grounds to think it would benefit the company. The US analogue is the constructive-fraud branch of 11 U.S.C. § 548(a): a transfer for less than reasonably equivalent value while the debtor was insolvent or left with unreasonably small capital, reachable within 2 years — extended in practice to roughly 4 years or more because § 544(b) lets the trustee borrow a real unsecured creditor's rights under state voidable-transactions law.

Preferences

The debtor paid, or gave security to, one creditor and thereby put it in a better position than it would have had in the insolvency. Section 239 attacks a preference, but with a crucial extra ingredient: the company must have been influenced by a desire to prefer that creditor — a subjective test that ordinary commercial pressure to pay a demanding creditor usually defeats. The look-back is 6 months, extended to 2 years where the creditor is a connected person, and the desire is presumed for connected persons. The US preference power in § 547 drops the intent question entirely and runs on mechanics: a transfer to a creditor on account of an antecedent debt, while insolvent, within 90 days before the petition — or one year for an insider — that lets the creditor receive more than it would in a Chapter 7. Its defences (payment in the ordinary course of business, contemporaneous new value) do the filtering that the English "desire" test does.

Late security and floating charges

A special case of preference deserves its own line because it recurs constantly: security granted late for money that was already owed. Section 245 makes a floating charge created within 12 months before the onset of insolvency invalid — 2 years if granted to a connected person — except to the extent of new money or value actually provided at or after its creation. The logic is exact: a floating charge for fresh funding survives; a floating charge dressed up to secure a stale debt collapses, because it converts an unsecured creditor into a secured one for nothing new. Fixed charges and security for genuinely contemporaneous lending are outside this section, though a fixed security for an old debt can still be attacked as a preference.

Transfers to defraud creditors

The most serious ground has the widest reach and, tellingly, no fixed time limit. Section 423 lets a court unwind a transaction at an undervalue entered into for the purpose of putting assets beyond the reach of a person who is making, or may make, a claim — deliberate asset-stripping. There is no look-back period at all, and, uniquely, a victim of the transaction can bring the claim without waiting for an insolvency or an office-holder. Its US counterpart is the actual-fraud branch of § 548(a)(1)(A) — a transfer made with actual intent to hinder, delay or defraud — with a dedicated 10-year reach-back under § 548(e) for transfers into a self-settled trust of which the debtor is a beneficiary, aimed squarely at asset-protection structures funded too late.

Two grounds people forget: post-petition dispositions and extortionate credit

Between the last safe day and the opening of the procedure there is a stretch in which the company is still trading and its bank is still paying out — and in a compulsory winding up that stretch is not neutral ground. Section 127 of the Insolvency Act 1986 makes any disposition of the company's property, any transfer of its shares and any alteration in the status of its members made after the commencement of the winding up void unless the court orders otherwise; and by s.129(2) a winding up by the court is deemed to commence at the time the petition was presented, not when the order is made. Nothing has to be proved about intent, value or connection. The payment is simply void, and the recipient — including the bank that kept honouring instructions after presentation — is asked to give it back unless a validation order was obtained. That is why a company served with a petition stops paying and applies to the court instead of trading through, and why a supplier who knows a petition is out should want the validation order before banking the money.

The second forgotten ground attacks the price of credit rather than the movement of an asset. Section 244 lets the office-holder reopen a transaction involving the provision of credit to the company entered into in the three years ending with the day the company entered administration or went into liquidation, where, having regard to the risk accepted by the person providing the credit, its terms required grossly exorbitant payments or otherwise grossly contravened ordinary principles of fair dealing. It carries no insolvency-at-the-time requirement and no connected-person gloss, and its window is longer than either the preference or the floating-charge window — which makes it the natural ground against a rescue lender whose pricing outran its risk. How that lending is documented, secured, perfected and ranked before any of this arises is the subject of private credit and security interests.

The table repays a second reading: the shorter, mechanical grounds (preference, undervalue, floating charge) are limited in time and forgiving of honest commercial dealing, while the intent-based ground (defrauding creditors) is the one with no clock — which is why timing protects an honest transfer but never a dishonest one.

The counterparty's side: what protects a recipient

Everything above is written from the office-holder's chair. The person who needs these rules most is usually sitting opposite: the buyer who paid a fair price, the lender who took the charge, the supplier who was finally paid. Avoidance is not confiscation. Each system pairs its clawback powers with defences, with limitation periods, and with a stopping point beyond which value that has moved on is left alone.

In England the protection sits in s.241(2) of the Insolvency Act 1986. An order under s.238 or s.239 must not prejudice an interest in property that was acquired from a person other than the company in good faith and for value, and must not require such a person to pay unless he was a party to the transaction or the preference was given to him as a creditor. Good faith is where the section bites back: s.241(2A) presumes its absence where the acquirer had notice both of the relevant surrounding circumstances and of the relevant insolvency proceedings, or where he was connected with, or an associate of, the company or the party to the challenged transaction; subsections (3) to (3C) fix when notice of the proceedings is taken to arise — in administration, in an administration that turns into a liquidation, and in a winding up. The design is deliberate. The outsider who bought from a purchaser rather than from the debtor, paid, and knew nothing, keeps the asset; the connected acquirer starts from the opposite presumption and has to displace it.

The US Code splits the same idea across three provisions. Section 548(c) lets a transferee who took for value and in good faith keep a lien on, or retain the interest in, what was transferred, to the extent of the value given. Section 550(a) then decides from whom the trustee may recover — the initial transferee, the entity for whose benefit the transfer was made, or any later transferee — and § 550(b) shields the later links: no recovery from a transferee who takes for value, in good faith and without knowledge of the voidability of the transfer avoided, nor from a good-faith transferee of that transferee. Two clocks bound the exercise: § 546(a) requires the avoidance action to be commenced by the later of two years after the order for relief or one year after the appointment of the first trustee, and § 550(f) allows one year after a transfer is avoided to recover on it. The pressure point is § 502(d): the court must disallow the claim of any entity from which property is recoverable under §§ 542, 543, 550 or 553 until it has paid or turned over what it owes — so a recipient cannot keep the preference and still prove in the estate for the rest.

One transfer, not the chain it travelled through. Payments that ran through a bank or a clearing house have their own carve-out. Section 546(e) protects settlement payments and transfers made in connection with a securities contract by or to a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant or securities clearing agency, and shields them from every avoidance ground except actual fraud under § 548(a)(1)(A). For years defendants read the harbour as covering any payment that had passed through a bank acting as a conduit. In Merit Management Group, LP v. FTI Consulting, Inc. (US Supreme Court, 27 February 2018, No. 16-784) the Court closed that reading unanimously: the only relevant transfer for the purposes of the § 546(e) safe harbour is the transfer that the trustee actually seeks to avoid — in that case the overarching payment from the debtor to the shareholders being bought out — and the fact that the money moved through financial institutions as intermediaries does not bring it inside the harbour. The holding reaches well beyond securities trading: it is the reason a leveraged buy-out settled through a paying agent can still be attacked as a constructively fraudulent transfer.

Read the table from the left column rather than from the jurisdiction: what protects a recipient is almost never the label on the transaction and almost always the combination of value given, good faith, and distance from the debtor. Value without good faith fails in both systems; good faith without value fails in both; and connection to the debtor destroys the presumption of good faith in England while stretching the exposure window in both.

The event timeline: counting backwards

Because every avoidance power is measured backwards from a fixed point — the "onset of insolvency" in England, the petition date in the US — the analysis is really a timeline. The office-holder marks the trigger date and then draws the windows back from it; anything a debtor did inside a window is at risk according to that window's rule.

The single most important thing the timeline shows is that being a connected person or insider roughly doubles or extends every window, and reverses the burden of proof on insolvency. A transaction with an outsider that is safe at seven months is wide open if the counterparty is a director, a shareholder or an affiliated company.

The four scenarios

Each of these is a recurring real question, and each is solved by the same two-step: name the debtor and the estate, then match the step to the right avoidance ground. The scenarios are illustrative; figures and facts in any real case change the outcome.

An asset was transferred to a related party before insolvency

A company, months before failing, transfers a property to a shareholder's holding company for a nominal price. The debtor is the transferring company; the property has left its estate. If the price was significantly below value, this is a transaction at an undervalue — s.238 in England (2 years, and because the counterparty is connected, insolvency is presumed), § 548 constructive fraud in the US (2 years, longer via § 544(b)). If the purpose was to defeat a known or anticipated claimant, it is additionally a transaction defrauding creditors under s.423 with no time bar at all. The related-party identity does the damage twice over: it extends the clock and it lets the office-holder presume the elements the debtor would otherwise force him to prove.

Late security was granted for an old debt

A struggling company grants a lender a charge to secure a loan advanced two years earlier, with no new money changing hands. The debtor is the company; the question is whether the lender has vaulted from unsecured to secured. If the security is a floating charge, s.245 invalidates it — 12 months back, 2 years if the lender is connected — save for value given at or after creation, and here there is none. If it is a fixed charge or a payment, it is a preference under s.239, provided the company was influenced by a desire to prefer (presumed if the lender is connected); in the US it is a § 547 preference on the 90-day / one-year clock with no intent to prove. Either way, security taken for a stale debt on the eve of insolvency is the paradigm case the avoidance rules exist to reverse.

A guarantee was given for another group member

An operating subsidiary guarantees, or grants security for, the debts of a sister company or the parent. Two debtors, two estates, and the trap is to treat the group as one. If the subsidiary later fails, the office-holder asks what the subsidiary received for taking on that liability. A guarantee of another entity's debt for no corporate benefit to the guarantor is vulnerable as a transaction at an undervalue — the subsidiary incurred an obligation and got nothing of equivalent value back — and, if it favoured a group creditor, as a preference. Upstream and cross-stream guarantees are the classic exposure, and in tiered ownership they are a designed feature rather than an accident — see holding structures for how the tiers are put together. The parent's failure does not reach into the subsidiary, but the subsidiary's own guarantee can pull the subsidiary's assets towards the group's creditors, and that giving-away is what avoidance attacks.

Client property is held by an insolvent intermediary

A broker, custodian, exchange or payment firm fails while holding assets or money that belong to clients. Here the decisive question is prior to avoidance: whose asset is it? If client assets are genuinely segregated and held on trust or in a properly identified client account, they are not part of the intermediary's estate at all — they belong to the clients and are returned, not distributed. If they were commingled, mis-recorded or never segregated, the client drops into the queue as an ordinary unsecured creditor for a money claim and shares the shortfall pro rata. The line between "my property, returned" and "my claim, in the pool" is drawn by the custody structure and the records, not by the label on the account — the mechanics for securities are set out in securities custody, and for regulated client money in licence wind-down. No offshore wrapper changes the answer: what protects the client is segregation and title, tested at the moment of failure.

Private planning, transfer and assurance are three different questions

The scenarios converge on a single discipline that asset-protection marketing consistently collapses. Private planning done early — before any claim is foreseeable, with assets genuinely given up — is legitimate and hard to unwind; its whole strength is that it predates the creditor and survives the look-back. A transfer made once a claim is in view is the opposite: it is the very thing s.423 and § 548's actual-fraud branch exist to reverse, and it converts a defensive structure into evidence of intent. And an assurance — a guarantee or a security — is not a transfer of value away at all but a promise that creates a new liability or a new priority, tested as a preference or an undervalue in the guarantor's own estate. The three are governed by different rules and different clocks, and a plan that treats them as one thing fails at whichever of them it got wrong.