Party Autonomy in International Property Law - Peace Palace Library

2. Party Autonomy in Dutch International Property Law
Transfer of ownership is governed by the lex situs, the law of the place
where the goods are situated. In international property law, party autonomy
is not allowed. 47
It is remarkable that the Dutch Property Law (Conflict of Laws) Act
contains a number of choice of law options that on the contrary do effect
proprietary rights issues. These are the choice of law provisions of Article
7 (transfer of stolen goods to the insurer), Article 8 (goods in transit),
Article 10 (cross-border assignment), and Article 13 (American shares). 48
Although the legislature is not always clear about the nature of the choice
of law concerned, it may be assumed that these four choice of law provisions
have an erga omnes effect and that consequently these are examples
of party autonomy to choose the law governing proprietary rights aspects
in its purest form: the choice of law not only has an effect between the
parties themselves but may also be alleged against third parties.
Careful scrutiny of these four choice of law provisions shows that the
goods to which these provisions refer cannot be linked in any way to a
place where the goods are situated. In the case of stolen goods, this place
will usually be unknown, while goods in transit are on the move without
staying in any one place very long. Claims and shares are intangible. A
place where these goods are situated simply does not exist. It is indeed
my opinion that party autonomy to choose the law governing proprietary
des Internationalen Privat- und Verfahrensrechts (IPRax) 1997, p. 411-413
and p. 422-427, comm. Hans Stoll.
47
It should be noted that German law is still supportive of the concept of renvoi
in the Conflict of Laws. Article 4 paragraph 1 of the German Conflict of Laws
Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche) reads as follows:
‘Wird auf das Recht eines anderen Staates verwiesen, so ist auch dessen Internationales
Privatrecht anzuwenden, sofern dies nicht dem Sinn der Verweisung
widerspricht. Verweist das Recht des anderen Staates auf deutsches Recht
zurück, so sind die deutschen Sachvorschriften anzuwenden.’ In the light of
the current case law of the Bundesgerichtshof in regard to parties choosing the
law that is applicable to proprietary rights issues, this leads to doctrinal inconsistencies.
See in this book the contribution of Jan von Hein, Party Autonomy
in International Property Law: A German Perspective (Chapter 5), paragraph
5.2.3. Also critical on this point: Ulrich Drobnig, European conflict rules for
the mutual recognition of security rights in goods (Chapter 8), p. 174 in this
book.
48
See for these provisions paragraph 6 of this Chapter.
Jeroen van der Weide
57
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