Assignment in European Private International Law: Claims as Property and the European Commission's "Rome I Proposal"sellier. european law publ., 2006 - 130 pages The assignment of contractual rights is of immense importance for the world of business and finance. Never before have assignments taken place on such a large scale as is the case in the contemporary securitisation market. Many receivables-based financial transactions, such as securitisations, are cross-border transactions. It is therefore often crucial to determine which law governs the proprietary aspects of assignment. The European Commission has, in its "proposal for a regulation on the law applicable to contractual obligations," formulated a new conflict rule referring the enforceability of an assignment against third parties to the law of the assignor's residence. This book demonstrates how the solution which has been adopted by the Commission is inadequate for receivables-based cross-border transactions. The authors argue that a cross-border assignment should, instead, be governed by the law chosen by the assignor and the assignee and, in the absence of a choice, by the law applicable to the assigned claim. The most important policy behind the Commission's conflict rule, i.e. that the assignor's creditors should be able to look to the assignor's law for registration requirements, can be realized in subtler ways, in particular by means of a special conflict rule for public filing systems. The Annexes contain the full texts of the Commission's Proposal, the UN Convention on the Assignment of Receivables, and Chapter 11 of the Principles of European Contract Law (Assignment of Claims). |
Contents
A conflict rule suitable for receivables as marketable assets | 4 |
Article 12 of the Rome Convention | 14 |
II | 21 |
Choiceoflaw with external effect in European | 27 |
Law Applicable in the Absence of Choice | 37 |
The proper law of the assigned receivables | 43 |
Article 1451 of the Swiss Private International Law Act IPRG | 49 |
The United Nations Convention on the Assignment | 60 |
The fundamental freedoms of the ECTreaty | 67 |
Conclusion | 77 |
Authors Proposal for Assignment Conflict Rule | 101 |
103 | 125 |
Common terms and phrases
accordance agreement annex article 13 aspects of assignment assets assigned claim assigned debtor assigned receivable assignee Assignment of Receivables assignor assignor and assignee assignor's residence choice choice-of-law competing claimant conflict rule referring contract of assignment contractual limitations court créance creditors declaration different law Dutch law English law EUIR European floating charge German law governing the assigned governing the proprietary habitual residence Hans Stoll Hoge Raad insolvency proceedings Internationales IPRG jurisdictions Keller/Girsberger Kieninger Lagarde law applicable law chosen law governing law of obligations legal system lex situs mandatory Member ment notification numerus clausus original contract paragraph payment place of business pledge principle private international law proper law Proposal proprietary aspects registration Regulation requirement respect Rome Convention rule referring assignment scope of article securitisation security assignment set-off signee signment solution Stadler Stoll subrogation subsequent assignment substantive law territorial units third party third persons tion validity WPNR