Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
equally have been placed into such an instrument, as has been demonstrated
by the recently enacted Dutch statute on international property
law. 3 However there was already a rule like Article 14 in the predecessor
of Rome I: the Rome convention of 1980 on the law applicable to contractual
obligations (Article 12). Hence, given the economic importance
of assignments, it seemed natural to continue with the placement of the
subject in the regulation on contract law conflicts, and not to wait until
some possible regulation on conflict of property laws, which is not yet on
the European legislative horizon.
In the meantime, Article 14 Rome I has been amply explained. 4 However,
trouble emerges from Article 27 paragraph 2, which charges the European
Commission to reassess the matter as to ‘the question of the effectiveness
of an assignment or subrogation of a claim against third parties and the
priority of the assigned or subrogated claim over a right of another person’.
This third-party effectiveness has been the hottest issue in the making of
Article 14. What precisely is that issue, and who are the third parties?
First, they are the creditors of the assignor and those of the assignee.
When an assignment has been made, do the creditors of the assignor have
to accept that the claim no longer belongs to their debtor, and can the
creditors of the assignee claim it to belong to their debtor? Second, when
successive assignments of the same claim have been made, either by the
same assignor or by successive assignors, which of the various assignees
can regard the claim to be his against the other assignees?
Many commentators think that Article 27(2) completely excludes thirdparty
effectiveness from the scope of Article 14. In their opinion, the
legislator has postponed the decision on that issue to the special review
procedure required by Article 27(2). 5 The view is surprising, because the
3
Articles 9 and 10. See in this book van der Weide, Party Autonomy in Dutch
International Property Law (Chapter 2), and the text of the statute.
4
Martiny, in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol. 10:
Internationales Privatrecht, 5. Aufl., München 2010, Art. 14 Rom I-VO; Martiny,
in: Reithmann / ​Martiny (eds.), Internationales Vertragsrecht, 7. Aufl.,
Köln 2010, p. 289-308; Plender / ​Wilderspin, The European Private International
Law of Obligations, 3d ed., London 2009, p. 367-387.
5
Sigman / ​Kieninger, The Law of Assignment of Receivables: in Flux, Still uncertain,
Still non-Uniform, in: Sigman / ​Kieninger (eds.), Cross-Border Security
over Receivables, Munich 2009, p. 1-74, at p. 54; Plender / ​Wilderspin (note
4) 386; Garcimartín Alférez, Assignment of claims in the Rome I Regulation:
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Axel Flessner
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