Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
In 1997, the Hoge Raad gave its judgement in the famous Hansa case. 15
It held that Article 12 paragraph 1 of the Rome Convention not only
governed the obligations between the assignor and the assignee but also
applied to the proprietary aspects of an assignment. In practice, this meant
that the parties could choose the law applicable to their contract to assign
and thereby exercise party autonomy also to the proprietary aspects of the
assignment. In the Dutch Property Law (Conflict of Laws) Act of 2008,
this Hansa rule has been codified. 16
Having the Hansa judgement, the Netherlands did not crave a new specific
rule on the proprietary aspects of an assignment in Europe. However,
the total lack of uniformity in the application of Article 12 of the Rome
Convention in the Member States made us feel the need for European
codification of the choice-of-law rules regarding the proprietary aspects
of assignment. Preferably, this would lead to a codification of our Hansa
rule.
7.3. How we started: the Commission proposal
(COM [2005] 650 [final])
Let me begin with a point of order. When we negotiated the Rome I
Regulation, the provision on assignment was Article 13. Since in the
course of our negotiations a provision on insurance was added, the provision
on assignment became Article 14 in the final Regulation Rome I as
it was adopted on 17 June 2008. For the sake of simplicity, I shall refer
to Article 14 whenever I talk about the assignment provision in Rome I,
whether in the Commission proposal, in later drafts, or in the Regulation
as it was adopted.
15
Hoge Raad 16 May 1997, Nederlandse Jurisprudentie (NJ) 1998, 585 (Brandsma
q.q. / ​Hansa Chemie AG).
16
Article 10 Wet conflictenrecht goederenrecht (Act on the Conflict of Law
Rules Relating to Property Matters); now incorporated as Article 135 of the
bill codifying all Dutch conflict-of-law rules: Vaststelling en invoering van Boek
10 (Internationaal privaatrecht) van het Burgerlijk Wetboek (Vaststellings- en Invoeringswet
Boek 10 Burgerlijk Wetboek) (32137), (Book 10 of the Dutch Civil
Code). See on this Dutch Property Law (Conflict of Laws) Act of 2008 also
Van der Weide in this book, Chapter 2.
150
Paulien M. M. van der Grinten
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