Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
lems since the parties have the freedom to submit disputes to the courts
of their jurisdiction of choice. 55
Secondly, if only Dutch parties are involved in the collateral arrangement,
it may be beneficial not to choose English or New York law but to
adapt the ISDA documentation for Dutch law. If this is combined with
a submission to the jurisdiction of the Dutch courts, this may sometimes
lead to substantial cost benefits, depending on the precise circumstances
of the case. Dutch law offers sufficient flexibility to have the ISDA documentation
governed by Dutch law, although it would need some minor
amendments. However, no problems would arise either in terms of contract
law or in terms of proprietary issues. Ultimately, whether English,
New York law or Dutch law is most suitable for the parties would be a
matter of preference. I have of course focused on English (and to a lesser
extend New York law) because that is where problems might be expected
in terms of party autonomy (although, as I have argued, such problems are
largely absent). As regards Dutch law, there would be no issues in terms
of party autonomy and therefore Dutch law in this respect has not been
dealt with in any detail in this chapter.
Finally it may be of interest to know that Euroclear Bank, which is located
in Brussels, Belgium, offers various services to market participants
in terms of both cash and securities collateral arrangements. Euroclear
Bank is often seen by market participants as a safe entity to use when
placing the relevant collateral. Euroclear Bank’s services can help reduce
administrative tasks for the collateral provider and collateral taker. It also
means that parties using these services may prefer Belgian law as the law
applicable to their collateral arrangement and submit to the jurisdiction
of the courts of Belgium. 56
55
See Article 23 of Council Regulation (EC) No 44 / 2001 of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters. See Hudson 2009, § 6-27.
56
Euroclear Bank’s website: https: // ​www.euroclear.com / ​site / ​publishedFile?D
ocumentName=MA0060 Collateral management broch_tcm86-132206.
pdf&action=dload.
248
Reinout M. Wibier
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