Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
is (or was) still an essential requirement for the transfer of receivables, this
requirement has been abolished for certain types of transaction. 14
In the ‘Low Countries’ the rules on assignment of the Civil Code have
even been fundamentally revised, in order to facilitate factoring and securitisation
transactions and other transactions involving ‘bulk assignments’.
Thus Article 1690 of the Belgian Civil Code has been amended
to the effect that the conclusion of the agreement to assign makes the
assignment enforceable against third parties (including the assignor’s
creditors). After its amendment, the Dutch Civil Code now recognises
two forms of assignment: disclosed (being an assignment notified to the
debtor) and undisclosed. An undisclosed assignment requires either an
authentic deed or a document to be registered (in a non-public register)
with the tax authorities. But even in the Code civil things may be different
in the future. In the Avant-projet Catala the rule embodied in Article 1690
has also been abandoned: the proposed Article 1254 Cc provides that the
execution of a deed suffices in order for the assignment to be enforceable
against third parties. 15 In current Belgian and Dutch law and, if the projet
Catala were to be enacted, also in French law, notification only serves to
inform the debtor of the assigned claim.
It follows that at the level of substantive law the assignment is ‘consensualised’:
the assignor and the assignee can among themselves decide when
a claim transfers. The logical consequence of this for private international
law would be that here also the assignment would be ‘consensualised’.
How? By allowing the assignor and assignee to designate the governing
law themselves.
Although there are some jurisdictions where notification is an essential
requirement for the transfer of the claim, this does not mean that party
14
See Article L214-43, L313-27 and L515-21 of the French Monetary and Financial
Code (Code monétaire et financier). See also P. Malaurie, L. Aynès &
P. Stoffel-Munck, Les obligations, 2007, p. 786-787; A. Flessner & H. Verhagen,
Assignment in European Private International Law, 2006, p. 14-15; H.L.E.
Verhagen & S. van Dongen, Cross-Border Assignments under Rome I, Journal
of Private International Law (JPIL) 6 (2010), p. 7.
15
L‘avant-projet de réforme du droit des obligations (articles 1101 à 1386 du
Code civil) et du droit de la prescription (articles 2234 à 2281 du Code civil),
http: // ​www.lexisnexis.fr / ​pdf / ​DO / ​RAPPORTCATALA.pdf (accessed 7 October
2010).
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Hendrik Verhagen
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