H.L.E. Verhagen

Cross-Border Assignments under Rome I

This paper discusses the law governing the property aspects of the assignment of claims under the Regulation on the law applicable to contractual obligations (“Rome I”).1 Rome I applies to contracts concluded as from 17 December 2009, replacing the Convention on the law applicable to contractual obligations 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 clarity 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 confl ict rule has been adhered to by the Dutch Hoge Raad.3 The criticism levied on this decision in legal literature and even by the judicial authority of another EU Member State indicates that our opinion will elicit similar opposition.4 In section D we will therefore examine the different confl ict rules that have been proposed in legal writing to deal with the property aspects of an assignment, in order to consider whether another confl ict rule would be more appropriate. Not surprisingly, these differ-The law governing the property aspects of the assignment of claims under the Regulation on the law applicable to contractual obligations (Rome I) is discussed. The key aspects and features of a compromise solution for the same are highlighted.