Party Autonomy in International Property Law - Peace Palace Library

9. Party Autonomy and Assignment
only govern the intrinsic validity of that assignment, but also determine
whether the subsequent assignee would be protected from the earlier assignment.
The principle is exactly the same as with tangible property,
where ownership acquired by one person under the original lex situs may
be defeated by the rights acquired by another person under the rules on
bona fide purchases of the new lex situs.
9.2.3. Prohibition of security assignments
Some legal systems allow security over claims to take the form of a security
assignment (e.g. English law and German law), while other legal systems
force the parties to use a pledge, by outlawing security assignments (e.g.
Dutch law).
One of the characteristics of European systems of private international
law is that, by operating with multilateral conflict rules, they demonstrate
a large openness towards foreign laws. A fundamental principle is
that legal systems are equivalent and that in international transactions
there may be good reasons to apply the laws of other jurisdictions, even
if these laws are different from the laws of the forum state. I have not
been able to identify a compelling reason why this should be different
here. The assigned claims are not the assignor’s creditors’ property. In a
purely domestic transaction it is up to the assignor and the assignee (and
not their creditors) whether and under what conditions security will be
created. In an international transaction the parties should be able to create
security over intangible assets in accordance with the law which
they consider to fit for their needs, whether by way of assignment or by
way of charge.
According to Kieninger, the Hansa-case is a good example of allowing
a contract to the detriment of a third party, in this case the assignor’s
unsecured creditors. For, by referring the assignment to the proper law of
the underlying contract to assign (German law) the Hoge Raad allowed
receivables to be encumbered in a manner (i.e. by a security assignment)
fung von Article 14 der Rom I-Verordnung, in: J.F. Baur et al (eds.), Festschrift
für Gunther Kühne zum 70. Geburtstag, 2009, p. 706-715, who explains various
cases of multiple assignments. See also Einsele, Die Forderungsabtretung
nach der Rom I-Verordnung – Sind ergänzende Regelungen zur Drittwirksamkeit
und Priorität zu empfehlen?, RabelsZ 74 (2010), p. 114-115.
Hendrik Verhagen
197
© sellier. european law publishers
www.sellier.de