учебный год 2023 / Krupski, Connecting Security Rights in Receivables — A Canadian Perspective on the Rome Convention

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5.Conclusion

This short discussion should have demonstrated that the current state of the law does not permit the conclusion Article 12 of the Rome Convention would cover assignments by way of security. Drafters did simply not contemplate creditor interests. They had legal systems in mind, in which debtor protection is virtually the only policy criterion, and in which a transfer of property in a chose in action typically is the only conceivable form of creating a security in a claim.

This legal culture is comprehensible from a historic point of view, but it is disproportionate to the goals it wishes to achieve, and certainly does not correspond to the realities of international commercial practice. As the Preamble of the Receivables Convention states in simple words, it must be regarded as an “obstacle to international trade”. This conclusion is nihil novi sub sole. One can scarcely understand why Supreme Courts in some European countries are still reluctant to embark upon a candid and exhaustive discussion of the problem at the best of their ability.

A purported inability to obtain court decisions or doctrine from other countries, or their publication in another language, would not serve as excuse.69 It would be similarly unacceptable to concede that the rules in the Rome Convention were nothing new compared to prior German codifications. “Codes have a Spartan quality that is unforgiving of spontaneity and insensitive to the foggy or the strange”,70 even if put in an international context. And codes become even more rigid when applied by closed minds. It is sad to say that the rhetoric “why should we change what we have always been doing” is often, if not always, applicable to judicial practice.

One final conclusion may be drawn. Discussion materials on international instruments that are not available in the language of the lex fori reveal as a major impediment to uniform application of international instruments. It is consequently wise that Unidroit as well as UNCITRAL have embarked upon the elaboration of official comments on their recent Conventions. These texts must also clarify that legal figures well known from internal law cannot necessarily bear fruits at a transnational level, and that the precise scrutiny of legal relations must again prevail over self-righteous juridical constructions – back to basics.

69I should mention that courts of the civilian system relying on legal commentaries, such as Germany’s famous Palandt, may lack information simply because the commentators and editors did not conceive of reviewing foreign doctrine or decisions on the uniform law of the Rome Convention, and hence (with “wilful blindness”?) depict an incorrect state of the discussion, despite the example set by P. SCHLECHTRIEM, Commentary on the UN Convention on the International Sale of Goods (CISG), 2nd ed, Clarendon Press, Oxford 1998, originally drafted in German. This problem, again, is not new. See, for example, M. EVANS, ‘Uniform Law – A Bridge too far?’, 3 Tul J Int’l & Comp L (Tulane Journal of International & Comparative Law) 1994, p 145. The existence of commentaries provides a unique infrastructure that could easily be used to overcome language and information barriers.

70M.A. SCHNEIDER, Culture and Enchantment, University of Chicago Press, Chicago 1993, at 40 cited by P. LEGRAND, ‘Against a European Civil Code’, 60 Mod L Rev (Modern Law Review) 1997, p 44 at 45.

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It can be expected that a revision of the Rome Convention by the European Commission in the footsteps of the EC Regulation will take place as announced,71 and that uniform law will be enacted taking account of the recent developments within Unidroit and UNCITRAL. Following recent jurisprudence,72 it is likely that the Communities will implement Unidroit and UNCITRAL rules as a consequence of their accession to these international instruments in line with Articles 65, 95 of the EC Treaty and Article 48 of the Cape Town Convention.73 Economic integration will hopefully bring about what obstinacy has prevented at the national level.

71See EC, COMMISSION AND COUNCIL, Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, 3 December 1998, [1998] OJ C 19, p 1; EC, COMMISSION, Scoreboard for the evaluation of progress in the establishment of an area of freedom, security and justice, 24 March 2000, COM(2000), 167 as updated on 30 November 2000, COM(2000) 782 and 28 May 2001, COM(2001) 278. See PLENDER, supra note 4 at 247, para 14-06; C. KESSEDJIAN, ‘La Convention de Rome du 19 juin 1980 sur la loi applicable aux obligations contractuelles – Vingt ans après’, in Private Law, supra note 3, 329 at 334 et seq. A rather critical perspective is presented by F.K. JUENGER, ‘Two European Conflict Conventions’, 28 Victoria U Wellington L Rev (Victoria University of Wellington Law Review) 1998, p 527 at 535 et seq. His remarks on Savigny’s ideal of decisional harmony indeed seem to prove true when applied to art 12.

72See generally J. BASEDOW, ‘The communitarization of the conflict of laws’, 37 CMLR (Common Market Law Review) 2000, p 687; C. KOHLER, ‘Interrogations sur les sources du droit international privé européen après le traité d’Amsterdam’, Rev. crit. dr. int. pr. 1999, p 1 at 15 et seq. A decisive turn in favour of a competence of the Communities in international treaty law appears to be currently taking place with regard to illegal “open skies” agreements concluded between Member States and the United States of America. Advocate General TIZZANO in his opinion of 31 January 2002, Cases C-466/98, C- 467/98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98 and C-476/98, Commission of the European Communities v. United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria and Germany [unpublished], online: European Court of Justice <www.curia.eu.int> (date accessed: 11 July 2002), has proposed that whenever the Communities adopt common rules in a given sphere on the internal level, the Member States lose power to contract with non-Member countries obligations which affect those rules. It follows that Member States may under no circumstances conclude international agreements in matters covered by the common rules. Any steps undertaken unilaterally would be incompatible with the Common Market.

73A provison resembling art 48 of the Cape Town Convention has not (yet) been inserted in the Receivables Convention. It is unclear what consequences, if any, this lacuna will entail if the Communities have the exclusive power to adhere without such event being authorized by a Convention only looking at individual States.