Party Autonomy in International Property Law - Peace Palace Library

7. Article 14 Rome I: A Political Perspective
industry if the Rome I Regulation were to contain a different rule based
on the assignor’s habitual residence.
The same applied to the Netherlands, where the financial industry claimed
it would cost them hundreds of millions of Euros if the rule proposed by
the Commission were to be adopted. The Dutch financial industry had
been able to profit from party autonomy in the choice-of-law rules on assignment
ever since the Hansa case. 22 This had permitted them to conduct
more transatlantic business than a rule based on the law of the assignor’s
habitual residence would have permitted. Moreover, financial experts and
their lawyers claimed that the law of the assignor was counterproductive
for anything they did other than factoring or ‘bulk assignments’. More
novel ways of security financing, like cash pooling and syndication of
loans, were coming into fashion. Besides, the Hansa rule of party autonomy
for the applicable law to an assignment was included in a Dutch
bill on choice-of-law rules for property law. 23 In 2006, when we negotiated
Rome I, this bill had already been submitted to the Dutch Parliament.
Almost any rule was thought to be preferable to the one proposed by the
Commission.
So there we were, the Dutch delegation fighting for a modern, assignment-friendly
choice-of-law rule for the proprietary aspects of an assignment
based on the law governing the contractual obligations between the
assignor and assignee as determined by party autonomy under Article 14
paragraph 1 Rome I. While we submitted our written proposals to have
the Hansa rule accepted Europe-wide, the UK argued that paragraph 3 of
the Commission proposal should simply be deleted. This would allow the
UK courts to continue the application of the law of the assigned claim in
paragraph 2 to the proprietary aspects of an assignment.
However, by the end of 2006, when we had finished our first round of
negotiations, the assignor’s habitual place of residence tended towards
majority support. Some Member States had asked to limit its scope to be
in line with the limitations in the scope of the UNCITRAL Convention
on the Assignment of Receivables in International Trade. Article 4 paragraph
2 of that Convention excludes many types of assignments from its
22
See footnote 15.
23
The bill that led to the Wet conflictenrecht goederenrecht (Dutch Property
Law (Conflict of Laws) Act), see footnote 16.
Paulien M. M. van der Grinten
155
© sellier. european law publishers
www.sellier.de