Party Autonomy in International Property Law - Peace Palace Library

10. Between Articles 14 and 27 of Rome I
assignment), it should be better not to make a difference. Not creating
a separate and different rule for the third-party effects in either of these
situations would keep Article 14 sensibly in line with Article 15 of Rome
I and Article 19 of Rome II. 28
It would also keep Article 14 Rome I in line with the Financial Collateral
Directive, which, in its Article 9, shows in the clearest manner
how the proprietary effects of a transaction can be dealt with by a unitary
conflicts rule for the parties to the transaction and third parties alike. 29
The provision subjects the proprietary effects of a financial collateral arrangement
involving book entry securities to the law of the country where
the ‘account’ is maintained: that is, the register in which title entries
concerning the securities are made (Article 9[1]). That country’s law is
(in paragraph 2) declared to apply to:
a) the legal nature and proprietary effects of book entry securities collateral;
b) the perfection of such collateral and more generally to the completion
of the steps necessary to render such an arrangement effective against
third parties; and
c) whether a person’s title in such book entry securities is overridden by
or subordinated to a competing title, or whether a good faith acquisition
has occurred.
A legislator could not have demonstrated more clearly that it is perfectly
all right to cover by one and the same conflicts rule the property effects
between the parties to a transaction and the property effects towards third
parties. Why should Article14 Rome I not embody the same approach?
Furthermore, to carve out the third-party effectiveness from Article 14
would raise the question of where to put this topic in the overall European
system of conflict rules. Imagine that we had a European Regulation
of international property law. Should we place third-party effects of assignments
into that regulation and keep in Rome I the property effects
between assignor and assignee? Certainly it would be better to have both
28
See in greater detail Einsele (note 6) 98-99, and, as to Article 13 of the Rome
convention, the predecessor of Article 15 Rome I, Flessner / ​Verhagen (note 8)
27-28.
29
Directive 2002 / 47 / ​EC on financial collateral arrangements, Official Journal
2002, L 168, p. 43. In the same sense, but less elaborately, Article 9(2) of the
Settlement Finality Directive 1998 / 26 / ​EC of 19 May 1998.
Axel Flessner
217
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