Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
Member States that did participate in the debates on assignment had
various reasons for doing so. Some had an important financial industry to
protect and facilitate. This applied, for instance, to the United Kingdom
and the Netherlands, whose banks and lawyers were both deeply involved
in complex structured finance products. Their respective governments
thought this financial trade deserved protection and support by having a
choice-of-law rule stimulating rather than complicating their financing
business. Others happened to have an expert delegate: for example, a legal
scholar who could contribute dogmatic arguments to the debate. Finally,
some Member States wanted to protect their existing national choiceof-law
rule on third-party effects, or to prevent the application of their
national substantive laws on assignment becoming rarely used if a certain
choice-of-law rule were to be adopted.
To determine the Dutch position in the debate, I consulted on a regular
basis in meetings, by email, and by telephone with financial experts
from banks, law firms, and universities to learn the key points for the
Netherlands. During negotiations, a delegation can participate in the
discussions by making written proposals. In the case of Article 14 Rome
I, we continuously stressed the needs of the financing industry and legal
practice, giving examples and demonstrating the practical consequences
of the proposed rules.
However, even with few Member States, Brussels discussions sometimes
are reminiscent of the tower of Babel. It is not so much the language itself
that causes confusion; rather, the completely different national legal concepts
we use in substantive law cause us problems in judging the proposed
international rules of private international law.
7.4. How we struggled (part I):
the relationship between the assignor and the
assignee in Article 14 paragraph 1 Rome I
As has been determined extensively in legal literature, the legal concepts
inherent in the substantive laws on assignment of the various Member
States are varied. Aspects that under one law are a matter of property law
are under another law part of the law of obligations.
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Paulien M. M. van der Grinten
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