Lloyd's Maritime and Commercial Law Quarterly
THE PROPRIETARY ASPECTS OF INTERNATIONAL ASSIGNMENT OF DEBTS AND THE ROME CONVENTION, ARTICLE 12
Teun H. D. Struycken*
The assignment of debts belongs to the most hazardous areas of private international law. One of the issues is whether a distinction must be made between contractual and proprietary aspects of assignment. If so, a next question is which conflicts rule applies to the proprietary aspects of assignment of debts. In particular, the question is whether Art. 12 of the Rome Convention on the Law applicable to Contractual Obligations applies. These issues of great practical importance are subject to much controversy in virtually all countries of the EU. In Brandsma q.q. v. Hansa Chemie AG the Dutch Hoge Raad, has cut the Gordian knot.1
After critical analysis of this decision, a different conflicts rule will be proposed.
The case
The facts of the case are simple. Hansa Chemie AG, a German company based in Germany, sells and delivers chemical products to a Dutch, Netherlands based company, while reserving title to the products. The Dutch company was to resell the products. To secure payment of the purchase price, the German seller stipulated that the Dutch buyer would assign its claims against sub-buyers for the purchase price to the German company. This agreement was governed by German law.2 When the Dutch company became insolvent, the Dutch liquidator contested the validity of the assignment of claims against a Dutch sub-buyer. After these monies had been paid into court, the liquidator sued the German seller over the title to these monies. If German law applied to all aspects of the assignment, the arrangement would be valid and effective, and the German defendant would probably win. In Dutch law this sort of assignment is invalid and ineffective.
* Nijmegen University, the Netherlands.
The following abbreviations are used in these footnotes:
Dicey & Morris, L. Collins et al. (eds), Dicey & Morris on the Conflict of Laws, 12th edn (1993).
Goode: R. Goode, Commercial Law, 2nd edn (1995).
Kieninger. Dr Eva-Maria Kieninger, “Das Statut der Forderungsabtretung im Verhältnis zu Dritten” (1998) 62 Rabels Zeitschrift (November).
Pardoel: Dorothée Pardoel, Les conflits de lois en matière de cession de créance, Bibliothèque de droit privé, vol. 277, L.G.D.J. 1997.
Peltzer: Oliver Peltzer (1997) 43 Recht der Internationalen Wirtschaft, Heft 11, 893.
1. Brandsma q.q. v. Hansa Chemie AG, Hoge Raad, 16 May 1997, Rechtspraak van de Week 126.
2. There was no explicit choice of German law in the agreement, but the agreement was written down in the German language, reference was made in it to sections of the German Civil Code, and the German courts were chosen. The court of first instance held that this was sufficient to amount to a choice of law. The Hoge Raad could not be asked by the parties to judge this factual decision, this being beyond its powers as a court of “cassation”.
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