Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
lands we have more than 13 years of experience with the Hansa-case and
there are no indications at all that this decision has led to the frustration
of creditors or other unfair results.
9.2. Party autonomy and property law
Rules of private international law (conflict rules) often reflect values of
substantive law. This has never been more powerfully expressed than in
Von Savigny’s famous statement that private international law’s primary
task is to ensure that a legal relationship will be referred to that legal
system to which it – given its distinctive legal nature – belongs:
‘dasjenige Rechtsgebiet …, welchem dieses Rechtsverhältniss seiner eigenthümlichen
Natur nach angehört’. 11
We can see this principle reflected clearly, in the Rome I Regulation. Freedom
of contract in substantive law here finds its parallel in the freedom
to choose the applicable law: Article 3 Rome I. Where in substantive law
freedom of contract is curtailed in order to protect structurally weaker
parties, this finds its parallel in the specific conflict rules for consumer contracts
and employment relationships, pursuant to which party autonomy
often cannot deprive consumers or employees of the protection offered by
the law of their socio-economic environment (Articles 6 and 8 Rome I).
What are the issues in the substantive laws on assignment, that could
have an impact on a conflict rule for assignment? Broadly, if we confine
ourselves to the laws of the Member States, we can see that there are three
important issues on which the laws of the Member States diverge. Firstly,
in some Member States notification to the debtor of the assigned receivable
not only serves to inform that debtor that assignment has taken place,
but importantly is also an essential requirement for the assignment itself.
Secondly, in some jurisdictions the protection of bona fide assignees against
an earlier assignment by the same assignor is based on notification to the
debtor. Thirdly, the laws of some Member States do not allow security
assignments: security over claims must be created in the form of a charge
(pledge). In addition there is the requirement, existing in several Member
11
F.C. von Savigny, System des heutigen Römischen Rechts, Vol. 8, 1849,
p. 28.
192
Hendrik Verhagen
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