Description
(Text)
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 as against third parties to the law of the assignor's residence.
In this book, it will be demonstrated that 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 realised 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).
(Table of content)
Preface
Abbreviated Literature
List of Other Abbreviations
I. Cross-border Assignments: Legal and Commercial Setting
1. Overview of the present situation
2. Hybrid nature of assignment
3. A conflict rule suitable for receivables as marketable assets
4. Article 12 of the Rome Convention
5. Article 13 of the Rome I Proposal
II. Party Autonomy
6. Advantages of party autonomy
7. Party autonomy and property law
8. Choice-of-law with external effect in European private international law
9. Limitations on party autonomy
10. Competing assignments
III. Law Applicable in the Absence of Choice
11. An objective conflict rule for assignment
12. The law of the assigned debtor's residence
13. The proper law of the contract to assign
14. The proper law of the assigned receivables
15. Final assessment
16. Article 145(1) of the Swiss Private International Law Act (IPRG)
IV. Law of the Assignor's Residence
17. Introduction: article 13(3) RIP
18. Bulk assignments and assignments of future receivables
19. The interests of the assignor's other creditors: registration
20. The interests of the assignor's other creditors: notification
21. Conflict rule is unjustly one-sided
22. The United Nations Convention on the Assignment of Receivables in International Trade
23. Static approach to a dynamic institution
24. Continuance of business practices
25. The fundamental freedoms of the EC-Treaty
V. Registration
26. A special conflictrule for public filing systems?
Conclusion
Annex I: Proposal for a Regulation on the law applicable to contractual obligations
Annex II: Authors Proposal for Assignment Conflict Rule
Annex III: United Nations Convention on the Assignment of Receivables in International Trade
Annex IV: Principles of European Contract Law, Chapter 11, Assignment of Claims
Index
