Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
sor Paul Lagarde, the great authority on conflict of laws, arguing from
a French perspective, has doubted whether one can split the property
aspects into internal ones – those between the parties to the assignment –
and external ones – those towards third parties. 20 But in fact, with regard
to assignment of claims, there is a line in French legal thinking that divides
the problem in just that way: namely, the mere consensus of the
assignment parties transferring the claim between them, and only an additional
step – notification to the debtor or his express assent – making
the assignment effective towards others. 21 In providing exactly for this
external aspect, Article 27 shows that the European legislator finds just
such a split not as incongruous as it may appear to observers outside of
France. 22
In contrast, Article 27(2) is very clear in calling for a report that possibly
proposes a ‘modification’ of the Regulation with regard to the
topic of third-party effects. 23 The text obviously presupposes that the
Regulation does contain a rule on the topic, which, however, should be
reconsidered and, if it appears necessary, be modified; it also seems to
allow Article 14 to remain unaltered if the Commission or the Council
and the Parliament so decide. Thus, all in all, the textual interpretation
ends with a somewhat mixed result. Taken alone, the text of Article
14 neither compels nor excludes its application to third-party effectiveness.
legal orders where such aspects are treated separately from the aspects under
the law of obligations.’
20
Lagarde, Retour sur la loi applicable à l’opposabilité des transferts conventionnels
de créances, in: Droit et actualité: Études offertes à Jacques Béguin, Paris
2005, p. 419, 424.
21
The system has recently been explained to foreign readers by Verhagen / ​van
Dongen (note 2) 6-7; Bauer (note 5) 64-77.
22
For the latter view, see Flessner (note 6) 40; Verhagen / ​van Dongen (note 2)
5-8.
23
The English version speaks of the envisaged proposal ‘to amend’ the Regulation.
This might evoke the idea of an addition to the existing text, but all the
other versions in Germanic and Romanic languages use the term ‘modification’:
modificación (Sp), modification (Fr), modifica (It), alteracao (Port),
wijziging (Du), aendring (Dan), ändring (Swed), Änderung (Ger).
214
Axel Flessner
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