Party Autonomy in International Property Law - Peace Palace Library

D. Assignment; Financial Instruments; Insolvency Law
It is submitted that the vulnerability of detrimental acts by which the
debtor has disposed of or encumbered assets is a matter that is most closely
connected to the law that governs the proprietary aspects of the transfer or
encumbrance, irrespective of the fact that the technical legal cause of the
reversal may lie in the reversal of the contractual obligation underlying
the proprietary right created. I consider that, for the purpose of Article
13 EIR, only the law governing the proprietary aspects of the transaction
should be taken into consideration. 13 This law should govern not only the
vulnerability of the (proprietary) act of transfer or encumbrance of the
asset(s) concerned but also the vulnerability of the (contractual) obligation
to transfer or encumber the asset, irrespective of the law applicable to
that obligation under the normal conflict of laws rules. The law governing
the conditions under which a right has effect against third parties, such as
the liquidator and the other creditors of the insolvent debtor, should also
govern the protection of such creditors where the creation or transfer of
such a proprietary right has prejudiced their rights of recourse in respect
of the debtor’s assets.
To the extent that party autonomy is not accepted in international property
law, this approach would eliminate some of the perceived adverse
effects of party autonomy. The protection of the interests of creditors in
whose interest avoidance actions are included in insolvency laws cannot
be circumvented by a choice of law. Unlike the law governing the
contractual obligations between parties, the law governing proprietary
aspects of the transfer or encumbrance of assets is – under current private
international law rules – generally not determined by a choice of law by
the parties. But even in cases where a choice for the applicable proprietary
regime is accepted in international property law (as, for example,
is the case under rules of Dutch private international law [and, as some
authors have argued, under Article 14 of the Rome I Regulation] 14 regarding
the assignment and charging of receivables), this approach would lead
to all relevant aspects of the validity and enforceability of the transfer
and encumbrance of assets to be governed by the law with the closest
connection. Furthermore, this approach takes into account that not in
all legal systems a clear distinction is made in respect of the juridical act
13
Cf. Veder 2004 (footnote 7), p. 319; Verhagen / ​Veder, NIPR 2000 / 1 (footnote
10), p. 14.
14
Cf. A. Flessner, Die internationale Forderungsabtretung nach der Rom-I
Verordnung, IPRax 2009 / 1, p. 38; S. van Dongen and A.P. Wenting, Europa en
internationale overeenkomsten. EVO wordt Rome I, NTBR 2009 / 3, p. 89.
270
P. M. Veder
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