Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
solvency proceedings take place, the lex fori concursus. 52 Although, on the
other hand, both these enforcement proceedings focus only on property
‘belonging’ to the debtor (a debtor is liable only with this property) 53 , the
issue of where and under which law he acquired the property (or a comparable
pledgable right) is of no concern for execution and insolvency law;
both will accept what their forum’s conflict of laws rules together with the
referred to substantive law of property will tell them about the property
situation in the case at hand. The same applies to the remedies with which
owners and other title-holders as third parties can assert their better rights
in enforcement and insolvency proceedings. For these remedies, the only
crucial factor is whether the claimed better right, with the substance given
to it by the applicable law, deserves the protection, exemption or privilege
provided by the available third party remedy in the forum’s enforcement
or insolvency proceeding – this, by the way, being the main case for the
view gaining ground that in a domestic proceeding the foreign property
right can be honoured directly, without a (intellectually) prior conversion
into a right recognised in the domestic numerus clausus list. 54 This kind
of direct application suggests itself also because the law of the forum need
not phrase its third party protection in terms of property law. Very often,
rather, the procedural rules by which third party claims can be raised
against the grip of the enforcement or insolvency proceeding are phrased
wider than just referring to property law: there may be rights other than
rights in rem that justify under certain circumstances third party opposition,
preferred treatment, segregation or separate realization in a given
forum state’s procedural law. 55
52
Article 4(1) and (2) (f-i) EuInsVO; §§ 221, 222 Austrian Bankruptcy Act
(KO); § 335 German Insolvency Act (InsO).
53
Kerameus, Enforcement Proceedings, in International Encyclopedia of Comparative
Law XVI chapter 10 (2002) sect 82; McBryde / ​Flessner / ​Kortmann
(eds.), Principles of European Insolvency Law (2003) Section 3.1, General
Commentary 35.
54
See footnotes 44, 45 above.
55
In Germany: § 771 Code of Civil Procedure (ZPO): ‘a right preventing the
alienation’; § 805 ZPO: ‘a right of pledge or a preferential right’ that confers a
‘claim to preferential satisfaction from the proceeds’; § 47 InsO (segregation):
‘a right in rem or personal right’; § 49-51 (separation): ‘a right to separate satisfaction’.
In Austria: § 44 KO: ‘right in rem or personal right to segregation’;
§ 48 KO: ‘claims to separate satisfaction’.
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Axel Flessner
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