Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
the traditional rule pointing to the place where the property is situated or
to other objective circumstances is not an insurmountable natural state,
but rather is based on a deliberate decision on the part of the legislator,
which can also be different, namely in favour of party freedom in the
choice of law.
II.
Europe
There are currently no plans in the European Union for legislation on
international property law. However, Article 14 of the Rome I Regulation
also regulates the international assignment of claims and in that context it
necessarily also had to understand the claim as an asset which can go from
hand to hand or can be encumbered with a limited right in rem, in respect
of which asset, therefore, in short, a disposal can be made. According to
Article 14(1) of the Rome I Regulation, the law that is governing this
disposal is the law that must be applied to the underlying contract between
the present holder of the claim and the person going to acquire the claim
(or the limited right in it), and this law applicable to the contract may
be chosen by the parties themselves in accordance with Article 3 of the
Rome I Regulation.
This means that choice of law by the parties is also acknowledged for the
disposal of the claim as an asset. This should make us seriously reconsider
the international law of tangible property too. To be sure, tangible
assets are physical objects and therefore necessarily located in one place,
while claims are incorporeal and, being an intellectual concept, have no
‘place’ where they ‘can be found’. Something both items have in common,
though, is that disposal of them by legal transaction should bring
about their legal reallocation to a person with effect towards third parties.
This legal reallocation, the nomination of a person as the new legitimate
holder of title to the asset, is also a purely intellectual process, which has
been clearly worked out particularly in the d’Avout thesis. 23 It can be
asked, therefore, whether party freedom of choice of law, if accepted for
claims, is not a conceivable solution for tangible goods as well.
The assumption that is widespread in the literature, however, is that the
‘third-party effect’ of the assignment of claims is not covered by Article
23
D’Avout, Solutions 16-20.
18
Axel Flessner
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