Party Autonomy in International Property Law - Peace Palace Library

8. European Conflict Rules for the Mutual Recognition of Security Rights in Goods
the English importer’s defenses. Two of the three Lord Justices expressly
confirmed the Dutch exporter’s title to the unsold goods still held by the
English importer. 26 The more doubtful points on the English importer’s
power to dispose of the plaintiff’s – unpaid for – assets and the rights of
the Dutch exporter in the proceeds of these sales go beyond the scope of
the present inquiry.
While the effect of a simple reservation of title in England was not subject
to doubts, Scottish courts took a different position. In a comparable
factual situation, a German exporter of steel had to appeal to the House
of Lords in order to achieve a comparable result. In this case, the German
exporter also had retained ownership in the goods (in this case steel) sold
to the Scottish importer for whom receivers were also appointed later. In
keeping with earlier decisions of Scottish courts, the German exporter’s
claim for return of the unpaid-for steel had been refused by the Scottish
courts in the first and the second instance. This was based on the grounds
that the exporter’s clause amounted to the creation of a non-possessory
security, which is invalid in Scotland. However, in the House of Lords,
the two Lord Justices who gave substantive reasons for their opinions
agreed in clearly distinguishing between a retention of ownership by a seller
and the creation of a non-possessory security by a debtor. 27 A retention of
owner ship is not subject to the formalities of creating a security right. 28
It is significant that in both cases the reasons for recognition are based
exclusively upon English substantive law; the law of the country of exportation
is nowhere mentioned.
f) Conclusion
The five countries dealt with in this section – Austria, France, Germany,
the Netherlands, and the United Kingdom – recognize reservations of
title created in another Member State if the goods concerned are brought
26
Aluminium Industrie Vaassen BV v. Romalpa Aluminium Ltd., All E.R. 1976 [2]
552 at 557 ss., 561, 563 (per Roskill, L.J.) and 567 (per Megaw, L.J.).
27
Armour v. Thyssen Edelstahlwerke AG, 1991 (2) A.C. 339 (H.L.), at 351-353
and 354 s.
28
Cf. the opinions of Lord Keith of Kinkel and Lord Jauncey of Tullichettle cited in
preceding footnote.
Ulrich Drobnig
173
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