Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
into the importer’s Member State. Hence, these five Member States fully
comply with the aim of the European Directive on mutual recognition of
reservations of title, though without invoking it.
It is significant that the emphasis of recognition has shifted from the
proprietary to the contractual level. Except in the German leading case,
the judges – including all other German judges – do not inquire into the
proprietary status of the retention of title in the country of exportation.
Relevant are two other factors: first, had the parties agreed on a retention
of title? If so, is the retention of title valid and effective according to the
law of the country of importation? In the light of this broad judicial practice,
one may have some doubt about the new Dutch rule that allows the
parties to agree on the application of the law of the country of importation
but subject to the acceptance of this choice of law by the law of the country
of importation. 29 This provision may risk encouraging the argument e
contrario that without such express choice of law the desirable application
of the new lex rei sitae is doubtful. In addition, is it really legitimate for the
old lex rei sitae to determine the application of the future new lex rei sitae,
although the latter has to agree? I do not know of any legal system with a
rule dealing with such a choice by the parties.
The aforementioned general practice may explain why the recognition
approach used by the European legislator for retentions of title created
in another Member State is not used and invoked in judicial practice. 30
More relevant may be the German legislator’s approach in its new conflict
rules on property of 1999: ‘events’ (Vorgänge) that occurred abroad
before things were moved to Germany are regarded as having occurred
in Germany. 31 However, this clause has also not been invoked in the
relevant cases – if consciously so, probably because the matter has been
taken for granted.
29
Cf. supra II 2 d).
30
Cf. supra II 1 in fine.
31
Introductory Law to the Civil Code Article 43 paragraph 3, as enacted in 1999
and quoted supra at p. 171 lit. c).
174
Ulrich Drobnig
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