The European Community Conflict of Laws Rules on Voluntary Assignments

Law serves man as a means to settle conflicts. Sometimes the preliminary legal inquiry of a conflict concerns the question of which body of laws should be utilized in order to resolve a conflict. This study focuses on one specific type of private law conflict, i.e. the question of which law should govern the assignment (transfer) of a right against another person (the debtor) The perspective this study takes is that of a court of an EU Member State that is confronted with such a question in a dispute between, for instance, assignor (transferor) and assignee (transferee)_, or assignee and debtor, or assignee and a third party. In that situation, the court of a Member State should refer to Article 12 of the EC Convention concerning the right applicable to contractual obligations (Rome Convention). The problem is that, although this provision contains a uniform rule different views exist with respect to its scope. Thus, it is not clear whether Rome Convention Article 12 also designates the law governing the effect of the assignment in respect of third parties other than the debtor, nor whether, if article 12 were to apply, subparagraph 1 of subparagraph 2 contains the applicable choice-of-law rule. Furthermore, the Member States and the European Commission (Commission) have found arguments to convert the Rome Convention into a community instrument and to amend it. It has been proposed to convert Rome Convention Article 12 into Article 13 of the Rome I Regulation (Rome I), adding a new subparagraph 3 pursuant to which the question whether the assignment may be relied on against third parties is governed by the law of the country in which the assignor as his habitual residence at the material time. Given the questions that Article 12 raises and the limited explanation given by the Commission for its proposal in Rome I Article 13, this study aims to define the scope application of Rome Convention Article 12 and forms a response to Rome I Article 13. Table of Contents: Table of Contents Table of Abbreviations Table of Cases Bibliography Table of Websites Introduction Part I Chapter 1: Law Governing a Contractual Obligation Chapter 2: Law Governing the Voluntary Assignment of a Right Against a Debtor Chapter 3: Law Governing the Validity and Effect of the Assignment of Relation to the Debtor Part II Chapter 4: Law Governing the Assignment in Relation to the Debtor of the Right in his Capacity of Creditor of the Assignor Chapter 5: Law Governing the Assignment in the Event of Insolvency of the Assignor Chapter 6: Validity and Effect of an Assignment in Relation to Parties other than the Party who is Debtor Part III Chapter 7: Rome I Regulation Article 13(3) Conclusion Summary Samenvatting Index