Party Autonomy in International Property Law - Peace Palace Library

4. Party Autonomy and Property Rights
a right in rem in the Roman sense. I have tried to show that. within the
common law, this conceptual structure is not limited to the trust. Indeed
within other legal systems which do not, unlike English law, permit the
divisibility of the ownership of a thing (e.g. a lease of land) the concept
of a right against another right is of even greater practical utility.
4.5. Private international law
We have many reasons to be grateful for our common Roman law inheritance,
but the sharp and exhaustive division within private international
law between rights in rem and rights in personam is not one of them.
Whether someone has created a contractual obligation to another in relation
to another right is, inevitably, determined by the law governing the
contract. This statement of the completely obvious is contained in relation
to claims by Article 14(1) of Rome I: 26
‘The relationship between assignor and assignee under a voluntary assignment
or contractual subrogation of a claim against another person
(the debtor) shall be governed by the law that applies to the contract
between the assignor and assignee under this Regulation.’
This provision is surplusage and all it achieves is confusion. Of course the
relationship of the parties to a contract is governed by the law applicable
to that contract: what on earth else would it be governed by?
Whether I, or somebody else, is the person in whom a particular right is
vested is determined by the law governing that right. Put identically, to
whom a particular duty is owed is determined by the law governing that
duty. This is true of all rights. So, once we have said that the law governing
the right to land is the lex situs, how the right to land is transferred is
inevitably governed by the lex situs. Once we have said that the law governing
shares in a company is that of the place of incorporation, in whom
that right is vested is determined by the law of the place of incorporation.
Again, this statement of what is (or should be) completely obvious is
stated in relation to claims by Article 14(2) of the Rome I Regulation:
26
Regulation (EC) No 593 / 2008 on the law applicable to contractual obligations
(Rome I), OJ L 177 / 6.
Robert Stevens
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