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ASSIGNING PRIORITIES IN THE CONFLICT OF LAWS

Lloyd's Maritime and Commercial Law Quarterly

ASSIGNING PRIORITIES IN THE CONFLICT OF LAWS

Andrew Dickinson*

BGL BNP Paribas v TeamBank
The law applicable to dealings with intangible things is one of the more problematic topics in the English conflict of laws.1 Judicial authority is sparse and ambiguous,2 and writers on the subject have engaged in what Dr Morris described as “an acute conflict of opinion”.3 For voluntary assignments of debts and other claims,4 the difficulties have for many years been alleviated, first, by the United Kingdom’s participation in the Rome Convention on the law applicable to contractual obligations5 and, subsequently, by its decision to opt-in to the EU (Rome I) Regulation on the same subject.6 Those instruments contain, in the Rome Convention, Art.12 and the Rome I Regulation, Art.14, detailed rules to determine the law applicable to issues arising from such voluntary assignments. Notwithstanding the UK’s exit from the European Union, those rules will continue to apply during and after the end of any implementation period.7
It is now clear from the decision of the European Court of Justice (ECJ) in BGL BNP Paribas v Team Bank AG,8 Rome I regime does not afford complete relief from the common law in this area. More specifically, the ECJ held that the Rome I Regulation does not designate, directly or by analogy, the law applicable to the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees. That conclusion, although at odds with the treatment in leading English commentaries,9 is wholly unsurprising10 in light of the textual and other considerations to which the ECJ referred.11 It nonetheless leaves English law in an unhappily uncertain state.
* Fellow and Tutor, St Catherine’s College and Professor of Law, University of Oxford.
1. Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, London, 2012), [24.051–24.079].
2. Professor Adrian Briggs has fairly described the authorities as “quite extraordinarily opaque” (A Briggs, Private International Law in English Courts (OUP, Oxford, 2014), [9.88]) and “really useless” (A Briggs, The Conflict of Laws, 4th edn (OUP, Oxford, 2019), 288).
3. JHC Morris and others (eds), Dicey & Morris: The Conflict of Laws, 10th edn (Sweet & Maxwell, London, 1980), 570.
4. This note concerns only assignments falling within this category. The concept of a “claim” for this purpose extends, for example, to a claim to enforce a non-contractual obligation but does not extend to more complex species of intangible thing, such as shares, interests arising under trusts, intellectual property rights or judgment debts.
5. See [1998] OJ C27/34 (consolidated version) and Contracts (Applicable Law) Act 1990.
6. [2008] OJ L177/6. See also Law Applicable to Contractual Obligations (England and Wales and Northern Ireland) Regulations 2009 (SI 2009/3064).
7. European Union (Withdrawal) Act 2018 as amended by the European Union (Withdrawal Agreement) Act 2020, s.1A; Agreement on the Withdrawal of the United Kingdom from the European Union and the European Atomic Energy Community, 19 October 2019, Art.66; Law Applicable to Contractual Obligations and Non-contractual Obligations (Amendment etc) (EU Exit) Regulations (SI 2019/834), Arts 3 and 6.
8. C-548/18, [2019] ECLI:EU:C:2019:848 (“BGL BNP Paribas”).
9. Dicey, Morris & Collins, 15th edn (2012), [24.063]; Briggs, Private International Law in English Courts (2014), [9.95]; Briggs, The Conflict of Laws, 4th edn (2019), 289. The editors of Cheshire, North & Fawcett, Private International Law, 15th edn (OUP, Oxford, 2017) are more hesitant, describing the point as “not entirely clear” (ibid, 1289, n.78).
10. See M McParland, The Rome I Regulation (Oxford, 2015), [18.96].
11. Post, text to fnn 13–25.
CASE AND COMMENT

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