Party Autonomy in International Property Law - Peace Palace Library

6. Party Autonomy in French and Belgian Law
‘the operation according to which one or more settlers transfer current
or future goods, rights or securities, or a universality of current
or future goods rights or securities, to one or more trustees who act
with a specified purpose to the benefit of the beneficiary and keep them
separate from their personal estate.’
Moreover, it is expressly stated that the insolvency proceedings opened
against the ‘fiduciaire’ do not affect the fiduciary property (Art. 2024 C.C.)
and that personal creditors of the ‘fiduciaire’ cannot seize fiduciary property
(Art. 2025 C.C.).
The debate on the proprietary positions of parties came to a head in
2009, when the French legislator added a paragraph to this provision.
An amendment of September 17 th , 2009 introduced a second paragraph
in Article 2011 C.C., stating that the ‘trustee’ (‘fiduciaire’) exercises the
fiduciary ownership of the goods that are part of the trust estate in favour
of the beneficiaries, according to the terms of the fiducie. The underlying
idea behind this reform was not connected to property relations
but to economic motives, which are to be situated in the recognition
of foreign legal devices. In reforming Article 2011 C.C., the French
legislator aimed to facilitate the entrance of Islamic financial institution
into the French financial market. The Islamic Sukuk requires that the
person who participates has a property right to the underlying property
and participates in the risk involved in the use of it. The English financial
market had already accommodated the Sukuk by agreeing to grant
equitable ownership to the participators; however, the French legislator
would not stand behind: he aimed to realise the same goal through this
amendment. The financial interest of the innovation could not be overestimated.
Islamic finance transactions amount to 840 billion dollars a
year and, more importantly, a yearly increase of 15 %. In opening their
financial market, the French legislator aimed at recovering part of this
market share.
However, this provision has not survived the constitutional control exercised
by the French Constitutional Court. This court ruled in a decision
of 14 October 2009, in less than a page, that the provision did not have
a connection, not even indirectly, with the proposal of which they were
a part. The amendment was included in the Act, aiming at favoring market
access to small and medium enterprises and at the functioning of the
financial markets.
Vincent Sagaert
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