Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
fide assignees are protected against an earlier assignment. In most cases,
however, the interests of other persons are addressed outside the law of
property, namely by laws on insolvency, voidable preference (pauliana),
attachment by individual creditors and sometimes tort. At the level of
private international law these laws have their counterpart in special
conflict rules for insolvency, voidable preference, attachment and tort.
Perhaps the main reason why so much disagreement and confusion exists
on assignment in private international law is that the relevance of these
special conflict rules is not always fully recognised. This in turn may
be caused by the fact that expressions like ‘third party effects’, ‘opposability’,
‘the effectiveness of an assignment against third parties’ and
‘priority’ are too general to provide clear guidance for finding the appropriate
conflict rules. These expressions should be broken down to more
precise categories: it then becomes apparent that many if not all of the
objections against allowing party autonomy for the proprietary aspects
of assignment disappear. I will illustrate this with reference to Article
27(2) Rome I.
9.3.1. The effectiveness of an assignment of a
claim against third parties
In Article 14(1) Rome I the words ‘mutual obligations’ of Article 12(1)
Rome Convention have been replaced by the word ‘relationship’. According
to recital 38 of the preamble to Rome I, this should clarify that
‘article 14(1) also applies to the property aspects of an assignment, as between
assignor and assignee (…)’ (emphasis added). Article 27(2) Rome
I provides that the European Commission shall submit ‘a report on the
question of the effectiveness of an assignment or subrogation of a claim
against third parties (…)’. In an article, Sanne van Dongen and I have
submitted an approach to the issue which Article 27(2) Rome I seeks to
address, which would remove the apparent incongruity of Article 14(1)
and Article 27(2) Rome I. In our view, the distinction that should be
made is not between the inter partes property effects (whatever that may
mean) and the erga omnes property effects. The appropriate distinction
is rather between the ‘property aspects’ of an assignment and the ‘other
third party effects’ thereof. The property aspects of assignment essentially
concern the requirements for a valid transfer of the assigned claim from
the patrimony of the assignor to that of the assignee and the ranking of
competing property interests in respect of the same claim. If Article 14(1)
Rome I were to be interpreted in this way, it would entirely apply to these
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Hendrik Verhagen
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