Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
practised or recommended from the outset by many and in many places
as the main principle (country of residence of one of the parties involved,
law of the claim). 30
Secondly, the rule in the conflict of laws should correlate with the owner’s
freedom to dispose over the property and to determine its location and
thereby the law that would be objectively applicable to its use. 31
Thirdly, a distinction must be made between matters of law that are associated
with the physical nature and location of the property, and those
matters of law that relate solely to the legal attribution of a piece of property
to one person or another. 32 Thus, it seems natural that the owner’s
right effectively to use and consume the property and the rights of others
to effectively act upon the property or to seize it are determined according
to the laws of the place where the property is effectively situated.
On the other hand, the physicality and location of the property do not
play a decisive role in the legal, in other words, purely intellectual allotment
of an asset to a person through a legal transaction. The question of
where the disposing legal transaction is made (place where the property
is situated or elsewhere) and between whom (residents or non-residents)
and the geographical distance between the assets and those who have, or
are supposed to have, property rights in them is of no consequence to the
allocation of the right by legal transaction. It is obvious, therefore, that
here, too, the party freedom in the choice of law generally existing in
relation to private legal transactions should be granted. 33 It is by the same
token the continuation of the fundamental freedom of the title-holder to
dispose in the international context with the means available there under
the conflict of laws – which is precisely the party choice of the legal system
that should govern the disposal.
D. Central ideas and counter-arguments
The foregoing summary is to some extent at odds with the prevailing
doctrine in Germany and Austria, which tends to be completely sealed
30
More information, with further details Flessner, IPRax 2009, 36 et seq.
31
See above in footnotes 12-14.
32
D’Avout, Solutions, footnotes 8-11 above.
33
D’Avout, Solutions, footnotes 10, 11 above.
20
Axel Flessner
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