Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
The legal owner may agree to the sale of the property and its encumbrance
with a right in rem anywhere, irrespective of the place where the property
is situated, and with anyone. It is therefore an obvious suggestion to allow
the parties to determine for the disposal and acquisition also the law that
is to be applied. 10 Because the physicality of the asset and therefore the
place where it is situated plays no part in the legal effect of the disposal
(that is, the acquisition of title), it is also obvious that the disposal over
corporeal assets (d’Avout: in reality over the rights in such assets) should in
principle be treated in the same way as the disposal over other assets (receivables,
company shares, intellectual property) in the conflict of laws,
unless special features of the object require special provisions. 11
In summary, the new theory can be formulated as follows: The law of the
place where the tangible asset is situated should govern in relation to the
exercising and protection of property rights in the asset (in other words,
what the legal owner may do with it physically and what protection he
can expect from the State in respect of this right). In relation to the disposal
of the property right by legal transaction, on the other hand, it is
the law elected by the parties themselves or otherwise applicable to the
contract between them that governs also the property disposal.
II.
Amsterdam
Back in 2001, the Dutch journal Nederlands internationaal Privaatrecht
(NIPR) published a particularly cogent paper advocating freedom of the
parties in the choice of law as the basic principle. 12 The author, a young
Amsterdam practitioner, summarised the Dutch and European opinions
at the time and came to the same essential conclusion as a few years later
the French thesis just introduced: In relation to content and exercising,
the law of the place where the asset is currently situated rightly applies;
in relation to the acquisition of the right by legal transaction, however,
freedom in the choice of law produces a better balance between the interests
of those involved in the transaction and third parties who are not
involved in the transaction. The main argument as far as the author is
concerned is the legal owner’s ‘freedom to choose a location’. He may
determine the place where the asset is situated and by that, according to
10
D’Avout, Solutions 589 et seq., 623 et seq.
11
D’Avout, Solutions 16-20.
12
Pos, Rechtskeuze in het internationaal zakenrecht, NIPR 2001, 398-405.
14
Axel Flessner
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