Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
10.3.3. System
In the emerging European system of conflict rules, considerable emphasis
is laid on avoiding overly fine distinctions, and, in particular, on avoiding
distinctions that are familiar only in some Member States but not in
others. See Recital 38 of the Preamble (above, note 19). It says that Article
14(1) has been drafted so as to make clear that in the relationship of assignor
and assignee no distinction should have to be made between the
property aspects and the contractual aspects of assignments, even when
a given Member State’s legal system separates them. This separation is
thought to be basic and necessary, for instance, in German legal thinking
but less so in other countries. Thus, what the Preamble here says
is that this peculiar division of contractual and property aspects should
not bother us in the application of Article 14. The distinction between
property effects between assignor and assignee and property effects against
third parties is another such peculiarity, this time from the French orbit. 27
As long as this distinction has not been clearly adopted in the envisaged
review process, disregarding it for the time being would keep Article 14
in line with the overall endeavour for simplicity in the European conflict
rules. It would save us from a split between the property effects (those
between assignor and assignee and those towards third parties), and from
working with different conflict rules for either side of the split.
The distinction between the internal and external property aspects is also
missing in two provisions that are very close to Article 14, viz. Article
15 of Rome I and Article 19 of Rome II. These provisions apply in the
case of subrogation by operation of law when debts are paid by a person
other than the debtor: for instance, by an insurer or by a guarantor or
surety. According to them, the subrogation is governed by the same law
that, as between creditor and payer, caused or justified the latter to pay.
They do not provide for a special treatment of third-party effects, which
means that these effects as well are governed by the law designated by
the overall rule. Contractual subrogation or transfer by assignment and,
on the other hand, subrogation by operation of law may be very close
together, even interchangeable. Payments by non-debtors can lead either
to an obligation of the paid creditor to assign his claim against the debtor
to the payer, or to an assignment to the payer by operation of law; it is a
matter of legislative discretion and legal technique. However, as to the
position of third parties other than the payer (being the recipient of the
27
See above at note 21.
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Axel Flessner
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