Party Autonomy in International Property Law - Peace Palace Library

1. Choice of Law in International Property Law
into conflict with the guiding idea of the European Single Market. The
European money and credit market is so highly integrated, even more so
due to its shared currency, that a mandatory national regulation, even
if self-restraint is explicitly intended, will have an impact on the entire
market such that self-restraint would in truth be a contradiction in terms.
This applies particularly to mandatory requirements for security rights,
with which a Member State intends to put a squeeze on secured credit
and give unsecured credit its chance of satisfaction. In the harmonised
money and credit market, this sort of legal policy directed only at a single
Member State’s market can merely be referred to as pointless. Against the
parties’ interest in choosing the applicable law by themselves, it merits
no European support.
On the distant horizon is a single ‘European Security Right’. 81 It will be
offered to the parties as an alternative to Member State security rights.
It would free legal dealings from the agony of choosing between Member
State laws, but it would also show through its optional nature that
party choice of law for property transactions is a practicable solution.
It is the only realistic way in the world in which the economic players,
their goods and their money actually move freely – and in Europe with a
constitutional guarantee – in the international market and across local
legal boundaries.
81
For reflections on this subject, see Kreuzer, Conflict-of-Laws Rules for Security
Rights in Tangible Assets in the European Union, in: Eidenmüller / ​Kieninger,
Future of Secured Credit 297, 314 et seq.; Flessner, Security Interests in
Receivables – A European Perspective, in: Eidenmüller / ​Kieninger, Future of
Secured Credit 336, 340 et seq.; further references in Röthel, JZ 2003, 1034
footnote 101.
Axel Flessner
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