Party Autonomy in International Property Law - Peace Palace Library

10. Between Articles 14 and 27 of Rome I
text of the provision requires, first, only a report and, only ‘if appropriate’,
a proposal by the Commission to amend the Regulation; second, it does
not and cannot promise a corresponding vote by Council and Parliament.
In its report, the Commission may find an additional rule unnecessary,
or Council and Parliament may be unwilling to vote on or to accept a
submitted proposal. Hence, if the exclusionary view should be correct, we
would have to do without a European rule on the issue, not only temporarily
but also perhaps for a considerable period, and the present version
of Article 14 may be there to stay for quite some time. In this situation,
its interpretation becomes important: In the light of Article 27(2), does
Article 14 cover third-party effects or not?
I have earlier submitted that it does, 6 and also that third-party effects are
within the scope of Article 14 paragraph 1 7 – which means that Article 14
embodies the solution found by the Dutch Hoge Raad: namely, to apply
the law applicable to the contractual relationship between the parties to
the assignment: for example, a sale of the claim, a loan against security,
or a factoring arrangement. 8 This brings into play Article 3 of Rome I,
and thus also opens the third-party effects to choice of law by the parties
to the assignment.
We must be aware, however, that whatever view we hold on the scope of
Article 14, it may be influenced by our assessment of the solution that can
be achieved by applying the provision. Hence, all the authors who have
been pleading to apply the law of the assignor’s location are among those
Art. 14, in: Ferrari / ​Leible (eds.), Rome I Regulation – The Law Applicable
to Contractual Obligations in Europe, Munich 2009, p. 217-249. at p. 226;
Bauer, Die Forderungsabtretung im IPR – Schuld- und zuordnungsrechtliche
Anknüpfungen, Frankfurt am Main 2008, p. 103, 167, 301.
6
Flessner, Die internationale Forderungsabtretung nach der Rom I-Verordnung,
Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2009, p. 35-
43, at p. 38-39. This view is shared by Martiny (note 4), in: Münchener
Kommentar, Art. 14 nr. 16, and in: Reithmann / ​Martiny, p. 295; Verhagen / ​
van Dongen (note 2) 5; Verhagen, in this book (Chapter 9); Einsele, Die
Forderungsabtretung nach der Rom I-Verordnung, Rabels Zeitschrift für ausländisches
und internationales Privatrecht (RabelsZ) 74 (2010), p. 91-117, at
p. 99-101, 112, 114.
7
Flessner (note 6) 39-40.
8
On that solution, see Verhagen, in this book (Chapter 9); Flessner / ​Verhagen,
Assignment in European Private International Law, Munich 2006, p. 8-12.
Axel Flessner
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