Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
into property transactions would actually be adversely affected by allowing
party choice of law generally or by its use in a given case. 41
But to begin with, the strict doctrine of numerus clausus is already fundamentally
out of place in today’s international property law. The doctrine
presumes a legal system that is self-contained and closed off from the
outside world, such that it can keep its property law system ‘pure’. This
notion is unrealistic and inadequate in a world where international freedom
ought to exist in the movement of goods. In this open world, the
individual country can no longer expect that all property located within
its territory has been acquired and encumbered according to its closed
system of rights in rem; rather, the opening of the system to foreign property
law is quite inevitable. The country where the property is situated
may wish to keep its own system closed for the exercising of any rights in
rem within the country and to protect them from attack. However, this is
not necessary for the recognition of acquisitive transactions, particularly
if the acquisition took place while the property was abroad. Moreover,
even in order to exercise and protect the property right which was acquired
under foreign law but is to be protected according to the law of the
forum, the conceptual adaptation of the foreign property right to domestic
notions is necessary, in order to make it compatible with the domestic,
allegedly ‘closed’ system. 42 This need for adaptation – which requires the
ability of lawyers to compare legal systems and often to make difficult
evaluations 43 – undermines the main advantage commonly ascribed to
the numerus clausus principle, namely the standardisation of the available
41
In detail: d’Avout, Solutions 663-690: ‘… disproportion entre le but poursuivi et
les effets obtenus: l’autonomie de la volonté est abstraitement et généralement
paralysée pour un objectif de protection des tiers, qui n’est concrètement en
jeu que de manière exceptionelle’ [‘… disproportion between the aim pursued
and the effects obtained: the autonomy of will is paralysed abstractly and
generally for an objective of protecting third parties which is not specifically
involved other than in an exceptional manner’], 665.
42
The literature deals with this adaptation, insofar as it is necessitated by the
reference to the place where the property is situated, under the title ‘Statutenwechsel’:
Verschraegen in Rummel, ABGB II 3d ed., § 31 IPRG nr. 20-26;
Wendehorst in MünchKomm BGB X, EGBGB 4 th ed., Article 43 nr. 125-147,
both with extensive further details on the literature.
43
The ‘change of the governing law’ in text books and commentaries is routinely
the most important and most difficult subject in international property law.
24
Axel Flessner
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