Party Autonomy in International Property Law - Peace Palace Library

7. Article 14 Rome I: A Political Perspective
This ‘no changes unless’ approach explains why the Commission did not
make an impact assessment for Rome I, although later in the negotiations
the Commission came to regret this. Whichever provision we would be
talking about, any Member State opposed to the proposed change to the
Rome Convention rule would argue that lack of an impact assessment
meant the proposed change was not justified.
Article 12 of the Rome Convention was one of the provisions for which
the Commission wanted to improve the rules, based on wide consultation.
Article 12 reads as follows:
‘1. The mutual obligations of assignor and assignee under a voluntary
assignment of a right against another person (‘the debtor`) shall be
governed by the law which under this Convention applies to the contract
between the assignor and assignee.
2. The law governing the right to which the assignment relates shall
determine its assignability, the relationship between the assignee and
the debtor, the conditions under which the assignment can be invoked
against the debtor and any question whether the debtor’s obligations
have been discharged.’
In the years after the entry into force of the Rome Convention in the
different Member States, it became apparent that Article 12 in practice
lacked a uniform interpretation. This diversity in interpretation applied
both to paragraph 1 and paragraph 2. There was no uniform answer to
the question of whether the proprietary aspects were within or outside
the scope of Article 12, and if they were within the scope, whether they
should fall under paragraph 1 or paragraph 2. Likewise, if the proprietary
aspects were outside the scope of Article 12 of the Rome Convention,
what should the choice-of-law rule be for these aspects? Thus, the lack
of a clear rule on the proprietary aspects of assignment resulted in considerable
legal uncertainty.
As regards Article 12 paragraph 1 on the relationship between the assignor
and the assignee, some believed this rule should only apply to the
contract to assign between the assignor and the assignee. 7 Others considered
that Article 12 paragraph 1 of the Rome Convention should also
7
In the Netherlands, this view was widely held in legal literature. See e.g.
L.F.A. Steffens, Naar een commune Nederlandse goederenrechtelijke verwijzingsregel
voor de overdracht c.q. de bezwaring van een vordering, NTBR
Paulien M. M. van der Grinten
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