Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
cerns of conceivable parties interested in this or that solution 35 ; it must
ask precisely who are the parties possibly involved in property relations,
what kind of interests they may actually have, to what extent their interests
are legitimate and how their essentially legitimate interests should
be measured against essentially legitimate opposing interests, in short –
in the words of Helmut Koziol: ‘The … conflicts of interest to be resolved
and the fundamental evaluations … must be worked out and taken into
account.’. 36
The parties concerned with property are first and foremost the parties to
the disposal transaction. In the international setting, they both want to
know first of all what conditions have to be met for the transfer or creation
of the right in rem under the applicable legal system. They may determine
this applicable law by themselves through their agreement – and thereby
bring into play their knowledge of the chosen legal system or their assessment
of the place where the acquirer intends to assert his property right.
By contrast, the objective reference to the law of the place where the asset
is situated does not give support to such considerations.
The party acquiring the right in rem will also want to know the law under
which the disposing party acquired his title – in other words, whether he
is truly disposing as the entitled party. This law does not have to be the
law of the present location if the property has come from another country.
Finding out the location of the property at the time of the earlier acquisition
is no simpler than asking the disposing party about the (perhaps
agreed) law covering his earlier acquisition. In the individual case, the
concerns of the acquiring party are therefore better served overall with
the power to choose the law than with the mandatory objective reference
to the location of the property. 37
The analysis must not be limited, however, to the interests of the parties
to the individual transaction in question. It must extend to all the potential
actors in the property market – in other words, to all those who at some
time may harbour an interest in acquiring property. It is easier for them
(and for the title-holders) to enter into a property transaction if they
have a visibly existing standard for the acquisition of title. However, the
35
Flessner, Interessenjurisprudenz im internationalen Privatrecht (1990), particularly
48-66.
36
Koziol, Grundlagen und Streitfragen der Gläubigeranfechtung (1991) 2.
37
In detail also: Ritterhoff, Parteiautonomie 289-292.
22
Axel Flessner
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