Party Autonomy in International Property Law - Peace Palace Library

6. Party Autonomy in French and Belgian Law
ability of this development. 47 ) Therefore, an argument is made by French
doctrine in favor of the recognition of German Sicherungsübereignung or
the extended title retentions (verlängerte Eigentumsvorbehalt or erweiterte
Eigentumsvorbehalt), even if the object is situated in France.
Belgian law has not followed this development, and does not acknowledge
a general recognition of a fiduciary transfer for security purposes.
According to the current state of Belgian law, such a transfer for security
purposes would – as a general starting point – be ineffective because it
lacks a third party effect. 48 Belgian law traditionally does not recognise
the proprietary effects of a fiduciary transfer for security purposes. 49 Even if
certain recent developments have diminished the strength of this starting
point, 50 it still remains de lege lata part of Belgian security law. This position
is criticised by legal scholars, especially when the transfer involves
claims, as it could disadvantage Belgian financial institutions in relation
to foreign ones. Belgian financial institutions risk becoming deprived of
this most perfected property right because of the lack of such a security
device in Belgian law.
The conflict of law rules with regard to rights in rem on receivables have
been the object of heated debate. It is our conviction that the debate
on the conflict rule is rooted in the insufficiency of the substantive rule.
Originally, the lex rei sitae rule was applied. Most legal scholars assumed
this meant that the law of the residence of the debtor of the receivable
that is the object of the assignment / ​pledge applied. After the internal
Belgian law abolished the requirement of notification to the debtor (Act
47
L. d’Avout, o.c., 686, n° 521. This development was already anticipated by G.
Khairallah, Les sûretés mobilières en droit international privé, n° 124 et seq.
with references.
48
For a more extensive analysis: V. Sagaert, ‘Het eigendomsrecht als volwaardig
zekerheidsinstrument?’, in: XXXIste postuniversitaire Cyclus Willy Delva
2003-2004, Mechelen, Kluwer, 2006, 189-230.
49
Cass. 17 October 1996, Arr.Cass. 1996, 930, Bull. 1996, 992, concl. J. Piret,
Tijdschrift voor Bank- en Financiewezen.1997, 114, note I. Peeters, R.W.
1996-97, 1395, note M.E. Storme.
50
This rule is subject to exceptions, the most important of which deals with
financial instruments and cash: Act of 15 December 2004 with regard to securities
on financial collateral, 1 February 2005. This exception was introduced
pursuant to European law, and more precisely pursuant to the European Directive
2002 / 47 / ​EC on financial collateral arrangements of June 6, 2002.
Vincent Sagaert
137
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