Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
have all been inspired by the English legal system. This is not to say that
they cannot be amended fairly easily so as to be suitable to be governed
by Dutch law, but the parties may still not be willing to do so preferring to
use the documents as they are. Moreover, applying the mandatory provisions
of Dutch law instead of the standard English law provisions would
seem to serve no purpose at all in our example, where the professional
parties do not need the protection of mandatory Dutch law and so there
should be no recourse to Dutch law / ​and so Dutch law provisions should
be irrelevant if this reflects the parties’ preferences. 27 If the parties had
instead chosen New York law as applicable to their arrangement, the
provisions of article 3(4) Rome I, restricting the ability to deviate from
mandatory community law if all elements relevant to the situation are
located in a Member State, could still be relevant. 28 However, for much
the same reasons as mentioned immediately above, professional parties
in my view should have the freedom to apply New York law to their collateral
arrangement without being subject to the restrictive provisions of
article 3(4) Rome I. Restricting party autonomy in this situation would
not seem to serve any purpose.
These matters are of course only relevant if there are in fact mandatory
provisions under Dutch or community law that would apply to the transaction,
which does not appear to be the case. Indeed, I cannot think of any
rule that might be relevant in this respect as long as the analysis is limited
to the contractual and contract law aspects of the arrangement. 29 Having
said that, articles 3(3) and 3(4) of Rome I might in principle be viewed
as a restriction on party autonomy. The question then could be whether
there are ways around these restrictions. Could the parties, by posting
the collateral in an account outside the Netherlands, for instance, make
the transaction sufficiently international in order to avoid application of
articles 3(3) and (4) of Rome I? In my view this would in fact solve the
27
For the Netherlands: R.I.V.F. Bertrams and S.A. Kruisinga, Overeenkomsten
in het internationaal privaatrecht en het Weens Koopverdrag, Kluwer, December
2007, p. 25, with further references.
28
The full provision reads as follows: ‘Where all other elements relevant to the
situation at the time of the choice are located in one or more Member States,
parties’ choice of applicable law other than that of a Member State shall not
prejudice the application of provisions of Community law, where appropriate
as implemented in the Member State of the forum, which cannot be derogated
from by agreement.’
29
The property law aspects will be discussed presently.
236
Reinout M. Wibier
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