Assignment in European Private International Law: Claims as Property and the European Commission's "Rome I Proposal"

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sellier. european law publ., 2006 - Law - 130 pages
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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).
 

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Contents

Article 12 of the Rome Convention
7
Article 13 of the Rome I Proposal
17
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
Law of the Assignors Residence
53
Conflict rule is unjustly onesided
59
Continuance of business practices
65
Registration
71
Conclusion
77
Annex II
98
Annex IV
125
Copyright

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