Party Autonomy in International Property Law - Peace Palace Library

9. Party Autonomy and Assignment
Not everyone is of the view that party autonomy and assignment are irreconcilable
notions. There is even a decision from an EU Member State
supreme court concerning assignment in which party autonomy played a
leading role. In the famous – according to some, infamous – Hansa-case, 7
party autonomy was used by the Dutch Hoge Raad as a powerful argument
for finding that the governing law of the assignment in that case should be
referred to Article 12(1) of the Rome Convention (being the law governing
the contract between assignor and assignee) rather than Article 12(2)
of the Rome Convention (being the law governing the claim assigned). 8
The Hoge Raad indicated that to hold otherwise would be to go against
a trend in favour of the principle of party autonomy, as can be discerned
in Article 3 of the Rome Convention and in other areas of private international
law, such as various Hague Conventions and, for assignment in
particular, Article 145(1) of the Swiss IPRG. 9
A solution based upon party autonomy has considerable practical advantages,
which are well-known and need not be repeated here. 10 What does
need to be repeated is that in practice there are always good and honest
reasons for the parties choosing a particular law and cases of manipulation
are extremely rare, if they exist at all. The fear that party autonomy
would be abused by the contracting parties, which still seems to pervade
the views of several contemporary authors, in the past also existed in
respect of contracts, but proved to be unfounded there. The same can be
established in respect of party autonomy and assignment: in the Nether-
Verordnung, in: J.F. Baur et al. (eds.), Festschrift für Gunther Kühne, Frankfurt
am Main: Verlag Recht und Wirtschaft 2009, p. 703-715.
7
HR 16 May 1997, Nederlandse Jurisprudentie (NJ) 1998, 585 (Brandsma/ ​
Hansa Chemie AG). Case notes in English by: M.E. Koppenol-Laforce,
Nether lands International Law Review (NILR) 1998 129-137; C. Joustra,
IPRax 1999, p. 280-284.
8
Rome Convention of 19 June 1980 on the law applicable to contractual obligations
(80/ 934 / ​EEC), OJ L 266 , 09 / 10 / 1980 p. 1-19, consolidated version
30 December 2005, OJ 2005, C 334 / 3. Article 12 of the Rome Convention is
the predecessor of Article 14 of the Rome I Regulation.
9
Bundesgesetz über das Internationale Privatrecht vom 18. Dezember 1987
(IPRG).
10
See A. Flessner & H. Verhagen, Assignment in European Private International
Law, 2006, p. 67-70; H.L.E. Verhagen & S. van Dongen, Cross-Border Assignments
under Rome I, Journal of Private International Law (JPIL) 6 (2010),
p. 17-19.
Hendrik Verhagen
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