Lloyd's Maritime and Commercial Law Quarterly
THE ASSIGNMENT OF PURE INTANGIBLES IN THE CONFLICT OF LAWS
Roy Goode*
Within the EU the law governing the assignment of contract rights is governed by Rome I, Art.14, which, however, does not apply to third-party issues. Several years ago the European Commission suggested an addition to Art.14 to the effect that third-party conflicts, such as those between competing assignees, be governed by the law of the assignor’s place of business. This attracted much support but also opposition from the securitisation industry, which urged the law governing the assigned obligation. A report from the British Institute of International and Comparative Law reached no firm conclusion. This paper supports the Commission’s proposal and argues that selection of the law of the obligation for issues that are no concern of the debtor has nothing to commend it.
INTRODUCTION
Despite the growing volume of international Conventions designed to harmonise substantive rules of commercial law, it is clear that private international law continues to flourish. In the case of the transfer of goods the rules governing the applicable law have been tolerably well worked out.1
* Emeritus Professor of Law, University of Oxford, and Emeritus Fellow of St John’s College, Oxford.
This article first appeared in L Gullifer and S Vogenauer (eds), English and European Perspectives on Contract and Commercial Law: Essay in Honour of Hugh Beale (Hart, Oxford, 2014) and is reproduced here by kind courtesy of Hart Publishing.
The following abbreviations are used:
BIICL: British Institute of International and Comparative Law;
BIICL Final Report/the Report: see infra, fn.33;
Explanatory Report: R Goode, H Kanda and K Kreuzer, assisted by C Bernasconi, Hague Securities Convention: Explanatory Report (Koninklijk Brill NV, Leiden, 2005);
Rome Convention: Rome Convention on the Law applicable to Contractual Obligations 1980;
Rome I/Rome I Regulation: Regulation No 593/2008 of the European Parliament and of the Council of 11 July 2007 on the law applicable to contractual obligations [2008] OJ L177/6;
Rome II Regulation: Council Regulation (EC) 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations [2007] OJ L 199/40;
UNCITRAL Guide: UNCITRAL Legislative Guide on Secured Transactions (UN, New York, 2010).
1. Some 50 years ago, one of Canada’s leading commercial lawyers, Professor Jacob Ziegel, teamed up with me to write a comparative survey of hire-purchase and conditional sales law, of which one chapter was devoted to the conflict of laws. In this we took issue with several leading scholars on what was then thought to be established doctrine on the effect of a change of situs. Half a century later our analysis, which was well received, still seems to hold good. See RM Goode and JS Ziegel, Hire-Purchase and Conditional Sale: A Comparative Survey of Commonwealth and American Law (British Institute of International and Comparative Law, London, 1965), Part V. The subject was further developed by Ziegel in “Conditional Sales and the Conflict of Laws” (1967) 45 Can Bar Rev 284. However, the traditional lex situs rule is not well suited to mobile equipment regularly moving across national borders and makes no sense at all when applied to pure intangibles. See post, 292.
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