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6 J. Priv. Int'l L. 1 (2010)

handle is hein.journals/jrlpil6 and id is 1 raw text is: Journal of Private International Law

CROSS-BORDER ASSIGNMENTS UNDER ROME I
HENDRIK LE VERHAGEN AND SANNE VAN DONGEN*
A. INTRODUCTION
This paper discusses the law governing the property aspects of the assignment
of claims under the Regulation on the law applicable to contractual obliga-
tions (Rome I).' Rome I applies to contracts concluded as from 17 December
2009, replacing the Convention on the law applicable to contractual obliga-
tions of 1980 (the Rome Convention). Previously, disagreement existed in
EU Member States as to whether the property aspects of an assignment were
governed by Article 12 Rome Convention.2 With the aim of bringing clar-
ity to this issue, the provision relating to assignment in Rome I includes some
apparently minor amendments when compared to its predecessor in the Rome
Convention. Nevertheless, as we will demonstrate in section C, in our opinion
these amendments lead to the interesting conclusion that the property aspects
of cross-border assignments are under Rome I governed by the law applicable
to the underlying contract concluded between the assignor and the assignee.
Already in Brandsma qq/Hansa Chemie AG, this conflict rule has been adhered to
by the Dutch Hoge Raad. The criticism levied on this decision in legal litera-
ture and even by the judicial authority of another EU Member State indicates
that our opinion will elicit similar opposition. In section D we will therefore
examine the different conflict rules that have been proposed in legal writing to
deal with the property aspects of an assignment, in order to consider whether
another conflict rule would be more appropriate. Not surprisingly, these differ-
* Prof Dr Hendrik (Rick) Verhagen is professor of private international law, comparative law and
civil law at the Radboud University Nijmegen and advocate in Amsterdam (Clifford Chance).
Miss Sanne van Dongen LLM works as a researcher at the Business and Law Research Centre
of the Radboud University Nijmegen.
Regulation 593/2008 of the European Parliament and of the Council of 17 June 2008, [2008]
0J L177/16.
2 In this paper the terms claims and receivables will be used interchangeably, to indicate
personal rights which are enforceable against specific obligors only and which have not been
expressed to be payable on bearer or order. Usually, assignments relate to contractual rights to
the payment of money. The term property aspects will be explained infa, in section B.
Hoge Raad 16 May 1997, [1998] Nederlandsejurisprudentie (NJ), No 585.
For an overview, see A Flessner and H Verhagen, Assignment in European Private International Law
(Munich, Sellier, 2006), 10-12, 22-36. The judicial authority is Mance LJ in Raffeisen Zentral-
bank Osterreich AG v Five Star General Trading LLC [2001] 3 All ER 257, ss 51-52.

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Vol. 6 No. 1

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