Party Autonomy in International Property Law - Peace Palace Library

B. Private International (Property) Law
6 July 1994), the majority of authors applied the law governing the receivable
that was the object of the assignment / ​pledge. Pursuant to this criticism,
the Belgian legislator introduced a new conflict rule in 2002, which
was quite remarkable and revolutionary in Belgian PIL. Article 145 Act
of 2 August 2002 amended this conflict of law rule by providing that the
proprietary aspects of the assignment are governed by the lex contractus
of the assignment. Party autonomy was introduced in order to determine
the proprietary effects of the assignment / ​pledge of receivables in relation
to third parties. This rule has been the object of critical observations by
Belgian legal scholars, who have observed that PIL filled the gap left by
substantive law. 51 Without going into detail concerning these criticisms,
it can be said that the main observation was that PIL was abused in order
to provide a remedy for deficiencies in the substantive law. As Belgian
substantive law did not allow for the same possibilities as the Sicherheitsübereignung
or Sicherheitsabtretung in German law, PIL had to grant the
possibility to parties to make use of these possibilities. More technical
criticisms were addressed to the solution accepted by the legislator, such
as (1) the uncertainty that follows from contractual freedom if third parties
are the interested parties (as is always the case in property law) and
(2) the impossibility of providing a clear-cut solution if different conflicting
assignments / ​pledge agreements are governed by another law, which
provides a different conflict solution. The debate that was raised after
this amendment had many similarities to the legal debate on the Hansajudgment
in the Netherlands. 52
The introduction of the PIL Code has been the occasion to amend, once
again, the applicable conflict rule. Drafters of the PIL Code were inspired
by the rule proclaimed by Article 30 of the Uncitral Convention of 12
December 2001 (Article 87 § 3 PIL-Code). According to this provision,
the creation of rights in rem with respect to receivables and the effects of
the transfer of the receivable is governed by the right of the State on the
51
V. Sagaert, ‘De zakenrechtelijke werking van de cessie van schuldvorderingen:
de nieuwe IPR-regeling na de Wet van 2 augustus 2002’, Tijdschrift voor
Privaatrecht 2003, 561-612; comp. W. van Lembergen, ‘Grensoverschrijdende
cessie van schuldvorderingen na de Wet van 2 augustus 2002 op het financieel
toezicht: consensus over consensualisme?’ Bank Fin.R. 2003, 145-159.
52
Comp. in Belgian literature: K. Christiaens and I. Peeters, ‘Cessie tot zekerheid
in een grensoverschrijdende context. Bedenkingen bij het arrest van de
Hoge Raad (Ned.) van 16 mei 1997’, Algemeen Juridisch Tijdschrift 1998-99,
277-284.
138
Vincent Sagaert
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