Articles de revues sur le sujet « Avoidance actions in insolvency proceedings »

Upon a request for a preliminary ruling on the articulation between Article 13 of the European Insolvency Regulation n° 1346/2000 and Article 12(1)(b) of Rome I Regulation, the Court of Justice of European Union has confirmed in a decision on April 22, 2021 that a payment made in perfor-mance of a contract by a third party is subjected to the law applicable to that contract and not to the law of the Member State opening the insolvency proceedings where the payment is challenged by an avoidance action. The decision raises some reflections on the correlation between the European Insolvency and Rome I Regulations as well as the effectiveness of avoidance action in insolvency proceedings.

AbstractWith the development of the internal market, the need to establish rules ensuring the protection of creditors in insolvency proceedings with a cross-border effect is increasing. Mechanisms at national level are difficult to provide the desired protection for foreign creditors. Since 26.06.2017 EU has a new Regulation 848/2015 which repeals the current Regulation 1346/2000. Despite the radical changes, it is attempting to implement this legislative act, the main objective of insolvency proceedings remains unchanged, namely, to achieve fair satisfaction of creditors. One of the mechanisms for the realisation of this objective are avoidance actions with international element for filling the insolvency estate. In view of the specifics of the procedure, the standard civil law mechanisms such as the Actio Pauliana are not impossible but are extremely inadequate and difficult to prove. In the practice of the Member States, many issues arise concerning the determination of jurisdiction and applicable law, creation of preconditions for the abuse in searching the most favourable legal system (forum shopping), there are differences in the so-called ‘suspicious periods’ and transactions concluded with affiliates. On this basis a fundamental jurisprudence of the CJEU has been enacted, the achievement of which will be the subject of this paper.

AbstractCross-border transactions and resultant legal proceedings often cause problems. One major problem is knowing which law should govern the transaction and any legal proceedings. Cross-border insolvencies in the EU are subject to the European Regulation on Insolvency Proceedings (EIR) but this legislation does not determine which substantive insolvency law rules apply in a given insolvency. There are many differences in the insolvency rules applicable in the various EU Member States and this has caused concern in relation to the avoidance of transactions entered into by an insolvent prior to the opening of insolvency proceedings. In light of this, the paper examines options to address divergence between national avoidance rules. One option, harmonization, is analysed as well as its possible benefits and drawbacks.

Only the harmonisation of laws is seen as being able to solve legal uncertainty resulting from legal diversity, but, notwithstanding the advent of the EC Regulation on Insolvency Proceedings, thus far there is no real harmonisation of insolvency laws in the EU. There are indications that the European Commission (EC) has been considering the formulation of a scheme for the harmonisation of the rules that apply in insolvency proceedings to permit the avoidance of transactions entered into prior to the commencement of insolvency proceedings. On this basis this article identifies and analyses those factors that will need to be considered and addressed in the formulation of any harmonised scheme, as well as ascertaining the problems that these factors may cause in the construction of such a scheme. This is a critical issue, for it is all well and good to say that there should be harmonisation, but how that is done, what must be taken into account and what is included in any harmonised scheme is another matter and requires careful thought and consultation.

Only the harmonisation of laws is seen as being able to solve legal uncertainty resulting from legal diversity, but, notwithstanding the advent of the EC Regulation on Insolvency Proceedings, thus far there is no real harmonisation of insolvency laws in the EU. There are indications that the European Commission (EC) has been considering the formulation of a scheme for the harmonisation of the rules that apply in insolvency proceedings to permit the avoidance of transactions entered into prior to the commencement of insolvency proceedings. On this basis this article identifies and analyses those factors that will need to be considered and addressed in the formulation of any harmonised scheme, as well as ascertaining the problems that these factors may cause in the construction of such a scheme. This is a critical issue, for it is all well and good to say that there should be harmonisation, but how that is done, what must be taken into account and what is included in any harmonised scheme is another matter and requires careful thought and consultation.

In February 2009, the ECJ rendered the Deko Marty judgment in which it decided that courts of Member States having jurisdiction to open insolvency proceedings on the basis of the EU Insolvency Regulation also have jurisdiction to hear actions which derive directly from insolvency proceedings and are closely linked to them. The author discusses this judgment in the light of the recent trend of insolvencification: the policy to re-label company law provisions that aim to protect creditors by transforming these provisions into provisions of insolvency law.

In order to improve and accelerate the insolvency with cross border implications, theCouncil has adopted the Council Regulation (EC) No 1346/2000 of 29 May 2000 oninsolvency proceedings establishing the common norms on the jurisdiction, recognition andapplicable law in this area, European norm which does not harmonizes the national materiallaw systems in the area of insolvency, thus it can be identified significant differences at anational legislative level regarding the insolvency in relation to fundamental considerationsof politics, structure and content, in other words, there are not unique insolvencyproceedings, with applicability throughout the European union. Nevertheless we consider thata first step in the achievement of a legislative uniformity was already taken, at least regardingthe unity regulation of certain preventive proceedings which will allow the avoidance ofinsolvency of the debtor, mentioning in this respect Law No 381/2009 on the preventiveconcordat and the ad-hoc mandate, whose provisions are taken from the new code on thepreventive proceedings of insolvency and of insolvency, code which eases the directapplication of the Council Regulation (EC) No 1346/2000.

In October 2012, the United Kingdom Supreme Court (the Court), by a 4-1 majority, signaled a sweeping return to a more traditional approach to the enforceability of foreign judgments in avoidance in Rubin v. Eurofinance SA. The Court rejected the more liberal rule previously advocated by the Court of Appeal, which gave English courts discretion to allow enforcement of in personam judgments in avoidance where they were related to insolvency and bankruptcy proceedings. The central issue in Rubin v. Eurofinance was whether an in personam judgment, entered in default but made as part of, or pursuant to, insolvency or bankruptcy proceedings abroad could be enforced at English common law. The Court held that the American default judgment at issue in Rubin was not enforceable in English courts.

Council Regulation (EC) No. 1346/2000 of 29 May 2000 (the Insolvency Regulation) is as a general rule based on the lex fori. The Regulation does however contain some exceptions to this rule. One of these is found in Article 13 that may be invoked in so–called avoidance actions.

Secured claims have priority over other claims in the event of debtor insolvency with respect to the distribution of the debtor’s encumbered assets. Numerous writings have discussed the necessity of security instruments in the context of growth and development of the economy. Credit is indeed necessary for the economy’s development, but, at the same time, credit is the cause of insolvency. This can be put another way: efficient credit develops the economy, while inefficient credit causes insolvency. The author argues on this basis that restriction of the secured creditor’s rights in insolvency proceedings means not less credit but more effective credit. A security-holder whose rights are limited is going to lend more responsibly and monitor the activity of the debtor more intensively and effectively, because the risk of loss would otherwise increase. Better monitoring should lead also to earlier intervention by the secured creditor in the actions of the debtor, which can be expected to increase the number of cases of rescue of debtors headed for insolvency. The author suggests the option of removing a small amount from the secured creditor and distributing it among the unsecured creditors to make the credit system more efficient and reduce injustice. Implementing this option would not harm the interests of the secured creditor as much as it helps to render the whole system more efficient.

The Bankruptcy Proceedings Code of Ukraine provides for the possibility of imposing liability under the obligations of the debtor – a legal person on the founders (stakeholders, shareholders) or other persons who have the right to give mandatory instructions to the debtor or have the opportunity to otherwise determine his actions. As a result, "comfortable" organizational forms of companies, such as LLCs and JSCs, have become risky for investors; managers, who may be employees, bear risk too. The article analyzes the legislation of the EU and some EU member states (Germany, France, Spain, the Netherlands, Latvia, Romania), concerning the liability of individuals in insolvency proceedings. We find that the rules on such liability are not harmonized at the EU level; as for individual countries, their laws do provide for the possibility of holding both de jure and de facto directors, whereas the latter may include the founders (stakeholders, shareholders) of the company, for the debts of the company. At the same time, the legislation of European countries describes in great detail the conditions and procedure for imposing such liability, which makes the risks for the individuals concerned predictable. Moreover, special rules on liability in insolvency proceedings are systematically linked to the provisions of company law, which establish the obligation of directors to act with due diligence in the interests of the company and liability for knowingly making business transactions with the knowledge that the company is insolvent (wrongful trading). In Ukraine, there are absolutely no specific legal provisions on the conditions and procedure for holding even de jure directors to liable in insolvency proceedings, not to mention the founders (stakeholders, shareholders) of companies, which creates a situation of legal uncertainty. To eliminate it, the legislation of Ukraine should define: the range of individuals on whom such liability may be imposed; a specific list of actions, the commission of which may give rise to liability; the need to prove the guilt of such individuals; forms of guilt sufficient to be held liable (only intent or also negligence); procedural rules for establishing guilt, including the issue of the burden of proof; who may lay claim to a director (insolvency administrator, creditor, court); statutes of limitations on the liability of directors, etc.

The paper deals with the new regulation of the relative ineffectiveness of legal acts in the Civil Code and compares it with the special regulation of the ineffectiveness of legal acts of the debtor in the Insolvency Act, which was adopted several years earlier. The basis of the treatise is the substantive legal regulation of the institute, but due to its nature, the procedural aspects – the so-called voidability – cannot be separated from the substantive aspects. The interpretation therefore focuses on the procedure of creditors towards the debtor or third parties when applying relative ineffectiveness and focuses on avoidance actions (both general and special), which are the basic instrument of the legal protection of creditors. With regard to the above-mentioned double regulation there are also problems in practice when both variants occur concurrently. A specific problem is also represented by the clash of the relative ineffectiveness of a legal act with its invalidity and its resolution especially in the area of insolvency law.

Classic injunction actions before a court are very rarely used instruments in the Visegrad 4 countries; they are too expensive, too long proceedings, with uncertain results. On one hand, a lost court case can cause insolvency for the organization and on other hand a won case cannot ensure a direct compensation of the harmed consumer. Therefore, the Visegrad 4 consumer protection organizations tend to move to other redresses. After a short introduction to existing injunction actions and their shortcuts in the Visegrad 4 counties (1); the article explains why the way of amending representative actions, as recommended by the new Commission Proposal cannot provide more efficient or effective justice in the Visegrad 4 countries (2); and based on the best practices of the Visegrad 4 countries I will propose alternative instruments, such as public enforcement and more flexible enhanced consumer measures by administrative authorities, which have proved quite efficient in resolving mass harm situations (3). Mass harms, injunction, collective redress mechanism, public enforcement, consumer compensation, Visegrad 4 countries, more flexible enhanced consumer measures, efficient enforcement

Resumen: en el Asunto Vinyls Italia, el TJUE recuerda que la ley rectora del concurso no es base suficiente para revocar un contrato perjudicial para el conjunto de los acreedores, si la contratante prueba que la ley rectora de tal contrato no permite su impugnación. Entre los aciertos de la Sentencia, des­taca que esta excepción no debe amparar prácticas fraudulentas, además de que su tramitación procesal debe hacerse conforme a la lex fori. No obstante, la Sentencia presenta serias dudas al obviar que la de­terminación de la ley rectora del contrato, y su carácter internacional, deben hacerse por el Reglamento Roma I y no por el Reglamento europeo de insolvencia. También es dudosa la remisión a la lex fori para la posible aplicación de oficio de esta excepción; más bien debería jugar a instancia de parte de acuerdo con una interpretación literal y finalista del Reglamento europeo de insolvencia.Palabras clave: acciones concursales de reintegración, ley aplicable, ley rectora del concurso, ley rectora del contrato, tramitación procesalAbstract: in Vinyls Italy Case, the CJEU reminds that the law governing the insolvency proce­eding is not a sufficient basis to revoke a contract detrimental to all creditors, if the contracting party provides proof that the law governing that contract does not allow its revocation. One of the hits of the Judgment is that this defense should not cover fraudulent practices, as well as procedural aspects shall be governed by lex fori. However, the Judgment presents serious doubts when it obviates that the determi­nation of the law governing the contract, and its international consideration, shall be made by the Rome I Regulation and not by the European Insolvency Regulation. The reference to the lex fori is also doubtful in relation with the possible ex officio application of this defense; rather, that defense should play at the request of a party according to a literal and final interpretation of the European Insolvency Regulation.Keywords: reintegration actions, applicable law, law governing insolvency proceedings, law go­verning the contract, procedure

Summary The aim of this article is to analyse the mutual relationship between arbitrability and public interest. The definition of arbitrability has remained in the domain of national law; there is no internationally unified definition, although a common trend towards the extension of its scope may be observed. There is no doubt about arbitrability in disputes concerning only the individual interests of the parties. However, if the dispute shows elements of public interest, it does not automatically imply that it is not arbitrable. A sign of equation thus cannot be put between public interest and inarbitrability. Disputes arising from economic activities involving public interest can be resolved before the arbitral tribunals. This for instance includes private-law enforcement of competition rules (including EU ones), disputes affected by illegal (criminal) actions, disputes concerning intellectual property rights (in certain countries also with erga omnes effects) or disputes related to insolvency proceedings.

The article raises the question of the cross-border effect of foreign bankruptcy in Russia and whether it is possible to adapt the Russian legal tools to solve the problems of special bankruptcy recognition. The finality of foreign judgments is analysed in detail. It is concluded that the finality criterion is poorly suited for bankruptcy cases. But the finality of court decisions commencing insolvency proceeding may lose its significance for their verification as suitable objects of recognition, only when a special model of insolvency-specific recognition exists, and provides the mechanisms to ensure legal certainty in the recognising state.It is noted the «closed» regime of procedural recognition in Russia in relation to foreign court decisions opening foreign bankruptcy proceeding. Alternative options for ensuring the cross — border effect of bankruptcy are considered: the material recognition, the acknowledgment of foreign bankruptcy as a fact, the request for interim measures in support of foreign bankruptcy. Ideas about the use of truncated procedural recognition are expressed, the legal difficulties of implementing this option are noted. In contrast to the “closed” regime of procedural recognition in Russian court practice, examples of “informal” recognition have been identified — the perception of foreign bankruptcy as a fact with the protect measures provision to the debtor’s assets from the creditor’s individual actions, which is comparable to the universal effect of foreign bankruptcy. The unique situation of the existence in the country of both territoriality and universalism is noted. All this underlines the desirability of a special legal regulation for the foreign bankruptcy proceedings recognition based on the modern models of modified universalism.

Subject. The article discusses methodological aspects of the scenario-based forecasts. Studying the future corporate standing through its economic assessment, we will be able to outline a set of actions the management may take to alleviate adverse effects, enhance the performance of an entity and prevent its bankruptcy. Objectives. We study how predictive scenarios are made through the economic assessment so as to leverage the financial and operating activity and prevent possible corporate insolvency. Methods. We employed general methods of research, such as analysis and synthesis, induction and deduction, and specific methods of economic studies, such as generalization and grouping, logic and systems approaches, econometric models. Results. Approaching the predictive management analysis of corporate operations in line with its technological distinctions, we can forecast the corporate development scenario, which will lay the basis for managerial decisions to reduce the bankruptcy risk. Conclusions and Relevance. Having examined previous proceedings and modern trends in management analysis, I concluded that the predictive corporate analysis should develop so that scenario-based forecasts could be feasible, including technological aspects of the entity. Management analysis data shall underlie reasonable decisions for avoiding adverse consequences for corporate economics. The findings can be used in corporate governance when analyzing and outlining corporate development paths.

The paper analyzes the practice of the Supreme Court of the Russian Federation in countering bankruptcy tourism of citizens. The paper considers the cases with the criteria for jurisdiction of personal bankruptcy in Russia, and employs the category of the center of main interests of the debtor known to foreign law order. The author shows the difference between the jurisdictional links in Russia and the EU in cases of personal bankruptcy, and general and specific in the presumptions that determine the jurisdiction factors. The paper provides the Russian definition of bankruptcy tourism defined by the Supreme Court of the Russian Federation for cases when a debtor-citizen 'manipulates' the jurisdiction of the bankruptcy case to transfer its consideration to the region where the debtor does not actually live, and shows the legal consequences of these actions in court proceedings. According to the author, in terms of Russian law, the practice of combating bankruptcy tourism does not imply the refusal to protect the rights which a person is abusing, it is based on the specifics of proving the jurisdiction factor – the place of residence of the debtor. The author argues the relevance of the European experience in regulating cross-border insolvency for improving the Russian legislation on bankruptcy.

Using the example of the administrative prosecution of illegal migration, the article examines the inconsistency of the actions of the legislative, executive and judicial authorities. Its consequence is both the avoidance of migrants from administrative responsibility, and the transformation of administrative expulsion into the imprisonment for an uncertain period. Author expresses disagreement with the legislative trend to narrow the limits of judicial discretion and draws attention to the need to consolidate the efforts of all branches of Russian government, taking into account the current international political situation. In this regard, the expediency of adjusting the legislative approach to judicial proceedings in cases of administrative offenses is emphasized. Instead of limiting the discretion of the court, it is necessary to provide the court with a sufficient arsenal of administrative punishment and the authority to impose additional legal duties, in order to optimally individualize punishment.

The article is a research of compensation specifics for damage caused by illegal actions, decisions and inactions of bodies that carry out operational and investigative activities, pre-trial investigation, the prosecutor's office and the court in the condition of war, as well as the risks of violation of rights, that is typical in that period. Condition of war is a special legal regime that is providing by the relevant authorities to repel armed aggression and ensure national security. In this regard, it is temporarily possible to limit the constitutional rights and freedoms of a person and a citizen due to a threat, with an indication of the period of validity of these restrictions. It was established that the most important human rights and freedoms can not be restricted even in condition of war. The functioning of the criminal justice system in the conditions of an armed conflict did not affect the procedure and criteria for compensation the damage caused to a citizen by investigative bodies, pre-trial investigation bodies, the prosecutor's office and the court. At the same time, the peculiarities of the socio-political situation in the state led to the appearance or strengthening of risks that led to violations of human and citizen rights. The consequences of such violations, in frames of criminal proceedings, may be the cancellation of sentences and the avoidance of responsibility by criminals, a large burden on the state budget of Ukraine, which is leads to a danger for national security in the condition of war and further - during the recovery period, as well it leads to a material consequences for certain officials. Considering these risks and implementing targeted measures aimed at their prevention, both at the level of individual employees and at the level of the criminal justice system, is an important tool of ensuring human rights, the inevitability of punishment and national security.

IllegitimacyBack in 1987, Gregory Bateson argued that:Kurt Vonnegut gives us wary advice – that we should be careful what we pretend because we become what we pretend. And something like that, some sort of self-fulfilment, occurs in all organisations and human cultures. What people presume to be ‘human’ is what they will build in as premises of their social arrangements, and what they build in is sure to be learned, is sure to become a part of the character of those who participate. (178)The human capacity to marginalise and discriminate against others on the basis of innate and constructed characteristics is evident from the long history of discrimination against people whose existence is ‘illegitimate’, defined as being outside the law. What is inside or outside the law depends upon the context under consideration. For example, in societies such as ancient Greece and the antebellum United States, where slavery was legal, people who were constructed as ‘slaves’ could legitimately be treated very differently from ‘citizens’: free people who benefit from a range of human rights (Northup). The discernment of what is legitimate from that which is illegitimate is thus implicated within the law but extends into the wider experience of community life and is evident within the civil structures through which society is organised and regulated.The division between the legitimate and illegitimate is an arbitrary one, susceptible to changing circumstances. Within recent memory a romantic/sexual relationship between two people of the same sex was constructed as illegitimate and actively persecuted. This was particularly the case for same-sex attracted men, since the societies regulating these relationships generally permitted women a wider repertoire of emotional response than men were allowed. Even when lesbian and gay relationships were legalised, they were constructed as less legitimate in the sense that they often had different rules around the age of consent for homosexual and heterosexual couples. In Australia, the refusal to allow same sex couples to marry perpetuates ways in which these relationships are constructed as illegitimate – beyond the remit of the legislation concerning marriage.The archetypal incidence of illegitimacy has historically referred to people born out of wedlock. The circumstances of birth, for example whether a person was born as a result of a legally-sanctioned marital relationship or not, could have ramifications throughout an individual’s life. Stories abound (for example, Cookson) of the implications of being illegitimate. In some social stings, such as Catherine Cookson’s north-eastern England at the turn of the twentieth century, illegitimate children were often shunned. Parents frequently refused permission for their (legitimate) children to play with illegitimate classmates, as if these children born out of wedlock embodied a contaminating variety of evil. Illegitimate children were treated differently in the law in matters of inheritance, for example, and may still be. They frequently lived in fear of needing to show a birth certificate to gain a passport, for example, or to marry. Sometimes, it was at this point in adult life, that a person first discovered their illegitimacy, changing their entire understanding of their family and their place in the world. It might be possible to argue that the emphasis upon the legitimacy of a birth has lessened in proportion to an acceptance of genetic markers as an indicator of biological paternity, but that is not the endeavour here.Given the arbitrariness and mutability of the division between legitimacy and illegitimacy as a constructed boundary, it is policed by social and legal sanctions. Boundaries, such as the differentiation between the raw and the cooked (Lévi-Strauss), or S/Z (Barthes), or purity and danger (Douglas), serve important cultural functions and also convey critical information about the societies that enforce them. Categories of person, place or thing which are closest to boundaries between the legitimate and the illegitimate can prompt existential anxiety since the capacity to discern between these categories is most challenged at the margins. The legal shenanigans which can result speak volumes for which aspects of life have the potential to unsettle a culture. One example of this which is writ large in the recent history of Australia is our treatment of refugees and asylum seekers and the impact of this upon Australia’s multicultural project.Foreshadowing the sexual connotations of the illegitimate, one of us has written elsewhere (Green, ‘Bordering on the Inconceivable’) about the inconceivability of the Howard administration’s ‘Pacific solution’. This used legal devices to rewrite Australia’s borders to limit access to the rights accruing to refugees upon landing in a safe haven entitling them to seek asylum. Internationally condemned as an illegitimate construction of an artificial ‘migration zone’, this policy has been revisited and made more brutal under the Abbot regime with at least two people – Reza Barati and Hamid Khazaei – dying in the past year in what is supposed to be a place of safety provided by Australian authorities under their legal obligations to those fleeing from persecution. Crock points out, echoing the discourse of illegitimacy, that it is and always has been inappropriate to label “undocumented asylum seekers” as “‘illegal’” because: “until such people cross the border onto Australian territory, the language of illegality is nonsense. People who have no visas to enter Australia can hardly be ‘illegals’ until they enter Australia” (77). For Australians who identify in some ways – religion, culture, fellow feeling – with the detainees incarcerated on Nauru and Manus Island, it is hard to ignore the disparity between the government’s treatment of visa overstayers and “illegals” who arrive by boat (Wilson). It is a comparatively short step to construct this disparity as reflecting upon the legitimacy within Australia of communities who share salient characteristics with detained asylum seekers: “The overwhelmingly negative discourse which links asylum seekers, Islam and terrorism” (McKay, Thomas & Kneebone, 129). Some communities feel themselves constructed in the public and political spheres as less legitimately Australian than others. This is particularly true of communities where members can be identified via markers of visible difference, including indicators of ethnic, cultural and religious identities: “a group who [some 585 respondent Australians …] perceived would maintain their own languages, customs and traditions […] this cultural diversity posed an extreme threat to Australian national identity” (McKay, Thomas & Kneebone, 129). Where a community shares salient characteristics such as ethnicity or religion with many detained asylum seekers they can become fearful of the discourses around keeping borders strong and protecting Australia from illegitimate entrants. MethodologyThe qualitative fieldwork upon which this paper is based took place some 6-8 years ago (2006-2008), but the project remains one of the most recent and extensive studies of its kind. There are no grounds for believing that any of the findings are less valid than previously. On the contrary, if political actions are constructed as a proxy for mainstream public consent, opinions have become more polarised and have hardened. Ten focus groups were held involving 86 participants with a variety of backgrounds including differences in age, gender, religious observance, religious identification and ethnicity. Four focus groups involved solely Muslim participants; six drew from the wider Australian community. The aim was to examine the response of different communities to mainstream Australian media representations of Islam, Muslims, and terrorism. Research questions included: “Are there differences in the ways in which Australian Muslims respond to messages about ‘fear’ and ‘terror’ compared with broader community Australians’ responses to the same messages?” and “How do Australian Muslims construct the perceptions and attitudes of the broader Australian community based on the messages that circulate in the media?” Recent examples of kinds of messages investigated include media coverage of Islamic State’s (ISIS’s) activities (Karam & Salama), and the fear-provoking coverage around the possible recruitment of Australians to join the fighting in Syria and Iraq (Cox). The ten focus groups were augmented by 60 interviews, 30 with respondents who identified as Muslim (15 males, 15 female) and 30 respondents from the broader community (same gender divisions). Finally, a market research company was commissioned to conduct a ‘fear survey’, based on an established ‘fear of rape’ inventory (Aly and Balnaves), delivered by telephone to a random sample of 750 over-18 y.o. Australians in which Muslims formed a deliberative sub-group, to ensure they were over-sampled and constituted at least 150 respondents. The face-to-face surveys and focus groups were conducted by co-author, Dr Anne Aly. General FindingsMuslim respondents indicate a heightened intensity of reaction to media messages around fear and terror. In addition to a generalised fear of the potential impact of terrorism upon Australian society and culture, Muslim respondents experienced a specific fear that any terrorist-related media coverage might trigger hostility towards Muslim Australian communities and their own family members. According to the ‘fear survey’ scale, Muslim Australians at the time of the research experienced approximately twice the fear level of mainstream Australian respondents. Broader Australian community Australian Muslim communityFear of a terrorist attackFear of a terrorist attack combines with the fear of a community backlashSpecific victims: dead, injured, bereavedCommunity is full of general victims in addition to any specific victimsShort-term; intense impactsProtracted, diffuse impactsSociety-wide sympathy and support for specific victims and all those involved in dealing with the trauma and aftermathSociety-wide suspicion and a marginalisation of those affected by the backlashVictims of a terrorist attack are embraced by broader communityVictims of backlash experience hostility from the broader communityFour main fears were identified by Australian Muslims as a component of the fear of terrorism:Fear of physical harm. In addition to the fear of actual terrorist acts, Australian Muslims fear backlash reprisals such as those experienced after such events as 9/11, the Bali bombings, and attacks upon public transport passengers in Spain and the UK. These and similar events were constructed as precipitating increased aggression against identifiable Australian Muslims, along with shunning of Muslims and avoidance of their company.The construction of politically-motivated fear. Although fear is an understandable response to concerns around terrorism, many respondents perceived fears as being deliberately exacerbated for political motives. Such strategies as “Be alert, not alarmed” (Bassio), labelling asylum seekers as potential terrorists, and talk about home-grown terrorists, are among the kinds of fears which were identified as politically motivated. The political motivation behind such actions might include presenting a particular party as strong, resolute and effective. Some Muslim Australians construct such approaches as indicating that their government is more interested in political advantage than social harmony.Fear of losing civil liberties. As well as sharing the alarm of the broader Australian community at the dozens of legislative changes banning people, organisations and materials, and increasing surveillance and security checks, Muslim Australians fear for the human rights implications across their community, up to and including the lives of their young people. This fear is heightened when community members may look visibly different from the mainstream. Examples of the events fuelling such fears include the London police killing of Jean Charles de Menezes, a Brazilian Catholic working as an electrician in the UK and shot in the month following the 7/7 attacks on the London Underground system (Pugliese). In Australia, the case of Mohamed Hannef indicated that innocent people could easily be unjustly accused and wrongly targeted, and even when this was evident the political agenda made it almost impossible for authorities to admit their error (Rix).Feeling insecure. Australian Muslims argue that personal insecurity has become “the new normal” (Massumi), disproportionately affecting Muslim communities in both physical and psychological ways. Physical insecurity is triggered by the routine avoidance, shunning and animosity experienced by many community members in public places. Psychological insecurity includes fear for the safety of younger members of the community compounded by concern that young people may become ‘radicalised’ as a result of the discrimination they experience. Australian Muslims fear the backlash following any possible terrorist attack on Australian soil and describe the possible impact as ‘unimaginable’ (Aly and Green, ‘Moderate Islam’).In addition to this range of fears expressed by Australian Muslims and constructed in response to wider societal reactions to increased concerns over radical Islam and the threat of terrorist activity, an analysis of respondents’ statements indicate that Muslim Australians construct the broader community as exhibiting:Fear of religious conviction (without recognising the role of their own secular/religious convictions underpinning this fear);Fear of extremism (expressed in various extreme ways);Fear of powerlessness (responded to by disempowering others); andFear of political action overseas having political effects at home (without acknowledging that it is the broader community’s response to such overseas events, such as 9/11 [Green ‘Did the world really change?’], which has also had impacts at home).These constructions, extrapolations and understandings by Australian Muslims of the fears of the broader community underpinning the responses to the threat of terror have been addressed elsewhere (Green and Aly). Legitimate Australian MuslimsOne frustration identified by many Muslim respondents centres upon a perceived ‘acceptable’ way to be an Australian Muslim. Arguing that the broader community construct Muslims as a homogenous group defined by their religious affiliation, these interviewees felt that the many differences within and between the twenty-plus national, linguistic, ethnic, cultural and faith-based groupings that constitute WA’s Muslim population were being ignored. Being treated as a homogenised group on a basis of faith appears to have the effect of putting that religious identity under pressure, paradoxically strengthening and reinforcing it (Aly, ‘Australian Muslim Responses to the Discourse on Terrorism’). The appeal to Australian Muslims to embrace membership in a secular society and treat religion as a private matter also led some respondents to suggest they were expected to deny their own view of their faith, in which they express their religious identity across their social spheres and in public and private contexts. Such expression is common in observant Judaism, Hinduism and some forms of Christianity, as well as in some expressions of Islam (Aly and Green, ‘Less than equal’). Massumi argues that even the ways in which some Muslims dress, indicating faith-based behaviour, can lead to what he terms as ‘affective modulation’ (Massumi), repeating and amplifying the fear affect as a result of experiencing the wider community’s fear response to such triggers as water bottles (from airport travel) and backpacks, on the basis of perceived physical difference and a supposed identification with Muslim communities, regardless of the situation. Such respondents constructed this (implied) injunction to suppress their religious and cultural affiliation as akin to constructing the expression of their identity as illegitimate and somehow shameful. Parallels can be drawn with previous social responses to a person born out of wedlock, and to people in same-sex relationships: a ‘don’t ask, don’t tell’ kind of denial.Australian Muslims who see their faith as denied or marginalised may respond by identifying more strongly with other Muslims in their community, since the community-based context is one in which they feel welcomed and understood. The faith-based community also allows and encourages a wider repertoire of acceptable beliefs and actions entailed in the performance of ‘being Muslim’. Hand in hand with a perception of being required to express their religious identity in ways that were acceptable to the majority community, these respondents provided a range of examples of self-protective behaviours to defend themselves and others from the impacts of perceived marginalisation. Such behaviours included: changing their surnames to deflect discrimination based solely on a name (Aly and Green, ‘Fear, Anxiety and the State of Terror’); keeping their opinions private, even when they were in line with those being expressed by the majority community (Aly and Green, ‘Moderate Islam’); the identification of ‘less safe’ and ‘safe’ activities and areas; concerns about visibly different young men in the Muslim community and discussions with them about their public behaviour and demeanour; and women who chose not to leave their homes for fear of being targeted in public places (all discussed in Aly, ‘Australian Muslim Responses to the Discourse on Terrorism’). Many of these behaviours, including changing surnames, restricting socialisation to people who know a person well, and the identification of safe and less safe activities in relation to the risk of self-revelation, were common strategies used by people who were stigmatised in previous times as a result of their illegitimacy.ConclusionConstructions of the legitimate and illegitimate provide one means through which we can investigate complex negotiations around Australianness and citizenship, thrown into sharp relief by the Australian government’s treatment of asylum seekers, also deemed “illegals”. Because they arrive in Australia (or, as the government would prefer, on Australia’s doorstep) by illegitimate channels these would-be citizens are treated very differently from people who arrive at an airport and overstay their visa. The impetus to exclude aspects of geographical Australia from the migration zone, and to house asylum seekers offshore, reveals an anxiety about borders which physically reflects the anxiety of western nations in the post-9/11 world. Asylum seekers who arrive by boat have rarely had safe opportunity to secure passports or visas, or to purchase tickets from commercial airlines or shipping companies. They represent those ethnicities and cultures which are currently in turmoil: a turmoil frequently exacerbated by western intervention, variously constructed as an il/legitimate expression of western power and interests.What this paper has demonstrated is that the boundary between Australia and the rest, the legitimate and the illegitimate, is failing in its aim of creating a stronger Australia. The means through which this project is pursued is making visible a range of motivations and concerns which are variously interpreted depending upon the position of the interpreter. The United Nations, for example, has expressed strong concern over Australia’s reneging upon its treaty obligations to refugees (Gordon). Less vocal, and more fearful, are those communities within Australia which identify as community members with the excluded illegals. The Australian government’s treatment of detainees on Manus Island and Nauru, who generally exhibit markers of visible difference as a result of ethnicity or culture, is one aspect of a raft of government policies which serve to make some people feel that their Australianness is somehow less legitimate than that of the broader community. AcknowledgementsThis paper is based on the findings of an Australian Research Council Discovery Project (DP0559707), 2005-7, “Australian responses to the images and discourses of terrorism and the other: establishing a metric of fear”, awarded to Professors Lelia Green and Mark Balnaves. The research involved 10 focus groups and 60 individual in-depth interviews and a telephone ‘fear of terrorism’ survey. The authors wish to acknowledge the participation and contributions of WA community members and wider Australian respondents to the telephone survey. ReferencesAly, Anne. “Australian Muslim Responses to the Discourse on Terrorism in the Australian Popular Media.” Australian Journal of Social Issues 42.1 (2007): 27-40.Aly, Anne, and Lelia Green. “Fear, Anxiety and the State of Terror.” Studies in Conflict and Terrorism 33.3 (Feb 2010): 268-81.Aly, Anne, and Lelia Green. “Less than Equal: Secularism, Religious Pluralism and Privilege.” M/C Journal 11.2 (2008). 15 Oct. 2009 ‹http://journal.media-culture.org.au/index.php/mcjournal/article/view/32›.Aly, Anne, and Lelia Green. “‘Moderate Islam’: Defining the Good Citizen”. M/C Journal 10.6/11.1 (2008). 13 April 2008 ‹http://journal.media-culture.org.au/0804/08-aly-green.php›.Aly, Anne, and Mark Balnaves. “‘They Want Us to Be Afraid’: Developing a Metric for the Fear of Terrorism. International Journal of Diversity in Organisations, Communities & Nations 6.6 (2008): 113-122.Barthes, Roland. S/Z. Oxford: Blackwell, 1990.Bassio, Diana. “‘Be Alert, Not Alarmed’: Governmental Communication of Risk in an Era of Insecurity.” Annual Conference Australian and New Zealand Communication Association, Christchurch, New Zealand, 2005. ‹http://www.anzca.net/documents/anzca-05-1/refereed-proceedings-9/247-be-alert-not-alarmed-governmental-communication-of-risk-in-an-era-of-insecurity-1/file.html›.Bateson, Gregory, and Mary Catherine Bateson. “Innocence and Experience”. Angels Fear: Towards an Epistemology of the Sacred. New York: Hampton Press, 1987. 167-182. 11 Sep. 2014 ‹http://www.oikos.org/baten.htm›.Cookson, Catherine. Our Kate. London: Corgi, 1969.Cox, Nicole. “Police Probe ‘Die for Syria’ Car Stickers”. WA Today 11 Sep. 2014. 11 Sep. 2014 ‹http://www.watoday.com.au/wa-news/police-probe-die-for-syria-car-stickers-20140911-10fmo7.html›.Crock, Mary. “That Sinking Feeling: Correspondence”. Quarterly Essay 54 (June 2014): 75-79.Douglas, Mary. Purity and Danger. London: Routledge and Keagan Paul, 1978 [1966].Gordon, Michael. “New UN Human Rights Chief Attacks Australia over Asylum Seeker Rights ‘Violations’.” Sydney Morning Herald 7 Sep. 2014. 11 Sep. 2014 ‹http://www.smh.com.au/federal-politics/political-news/new-un-human-rights-chief-attacks-australia-over-asylum-seeker-rights-violations-20140907-10dlkx.html›.Green, Lelia. “Bordering on the Inconceivable: The Pacific Solution, the Migration Zone and ‘Australia’s 9/11’”. Australian Journal of Communication 31.1 (2004): 19-36.Green, Lelia. “Did the World Really Change on 9/11?” Australian Journal of Communication 29.2 (2002): 1-14.Green, Lelia, and Anne Aly. “How Australian Muslims Construct Western Fear of the Muslim Other”. Negotiating Identities: Constructed Selves and Others. Ed. Helen Vella Bonavita. Amsterdam: Rodopi, 2011. 65-90. Karam, Zeina, and Vivian Salama. “US President Barack Obama Powers Up to Shut Down Islamic State”. The Australian 11 Sep. 2014. 11 Sep. 2014 ‹http://www.theaustralian/world/%20us-president-barak-obama-powers-up-to-shut-down-islamic-state-20140911-10f9dh.html›.Lévi-Strauss, Claude. The Raw and the Cooked: Mythologiques, Volume 1. Chicago: University of Chicago, 1969.Massumi, Brian. “Fear (the Spectrum Said).” Positions 13.1 (2005): 31-48.McKay, Fiona H., Samantha, L. Thomas, and Susan Kneebone. “‘It Would Be Okay If They Came through the Proper Channels’: Community Perceptions and Attitudes toward Asylum Seekers in Australia”. Journal of Refugee Studies 25.1 (2011): 113-133.Northup, Solomon. Twelve Years a Slave. New York: Derby & Miller, 1853.Pugliese, Joseph. “Asymmetries of Terror: Visual Regimes of Racial Profiling and the Shooting of John Charles de Menezes in the Context of the War in Iraq.” Borderlands 5.1 (2006). 11 Sep. 2014 ‹http://www.borderlands.net.au/vol5no1_2006/pugliese.htm›.Rix, M. “With Reckless Abandon: Haneef and Ul-Haque in Australia’s ‘War on Terror’.” In K. Michael and M.G. Micheal (eds.), The Third Workshop on the Social Implications of National Security Australia. Canberra, July 2008. 107-122. 11 Sep. 2014 ‹http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1011&context=gsbpapers›.Said, Edward. Orientalism. London: Penguin, 1977.Wilson, Lauren. “More Visa Over-Stayers than Asylum-Seekers”. The Australian 11 Oct. 2012. 11 Sep. 2014 ‹http://www.theaustralian.com.au/national-affairs/immigration/more-visa-over-stayers-than-asylum-seekers/story-fn9hm1gu-1226493178289›.