Party Autonomy in International Property Law - Peace Palace Library

7. Article 14 Rome I: A Political Perspective
lands in 1992. In my graduation paper, I discussed the question as to
whether there was a need for a separate choice-of-law rule for the proprietary
aspects of an assignment of receivables in private international law.
At the time, I argued that there was no such need. In my view, Article 12
paragraph 1 of the Rome Convention could be applied by way of analogy
to the proprietary aspects of an assignment, including the effect of the
assignment against third parties. Thus, the law governing the contract
between the assignor and the assignee – which might have been chosen
by the parties – would also govern all of the proprietary aspects of the
assignment. 13
My reasons to argue in favour of this party autonomy were twofold. The
first reason was purely pragmatic: to limit the number of different laws
applicable to an international assignment of receivables. The second reason
was that in my view the validity of the assignment as between assignor
and assignee was already within the scope of Article 12 paragraph 1 of the
Rome Convention. At the time, the majority of Dutch authors argued
that, for Dutch law, Article 12 paragraph 1 was limited in scope to the
contract to assign between the assignor and the assignee, since the assignment
itself was a matter of property law and therefore outside the scope
of the Rome Convention.
What I argued in my paper was that the distinction made in Dutch substantive
law between contractual aspects and proprietary aspects of an
assignment could not be made in the same way when applying Article
12 of the Rome Convention. The fact that the Rome Convention is an
international instrument of private international law not only explains its
different wording but it also requires a different, autonomous interpretation
of the concepts and the wording contained therein. Hence, the motto
of this paper is as quoted from a judgment of Farwell L.J. in Re Hoyles:
‘In order to arrive at a common basis on which to determine questions
between the inhabitants of two countries living under different
systems of jurisprudence, our courts recognise and act on a division
otherwise unknown to our law (…)’. 14
13
See also R.I.V.F. Bertrams, H.L.E. Verhagen, o.c. footnote 8, arguing along
the same line.
14
See footnote 1.
Paulien M. M. van der Grinten
149
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