The New Rule on the Assignment of Rights in Rome I – The Solution to All Our Proprietary Problems? Determination of the Conflict of Laws Rule in Respect of the Proprietary Aspects of Assignment.

A conflict of laws rule applying to the proprietary aspects of an assignment of a right must be devised that encompasses the following characteristics. The rule must lead to effective harmonization of conflict of laws rules, legal certainty, the applicability of the closest connected law (the so–called proper law of the (proprietary) relationships in respect of the right to which the assignment relates), and must be suited to achieve internal harmony in decision making. This means the rule must be unambiguous in formulation and not subject to different interpretation depending which court is involved in the dispute. It must lead to the applicability of the law third parties would expect to be applicable and must be suited to apply to all proprietary issues that may arise out of the assignment of a right.
The purpose of this paper is to find the best solution for a conflict of laws rule in respect of the proprietary aspects of an assignment of a right which fulfils the requirements as set forth above, in light of the harmonization of conflict of laws within the European Union. To come to devising such a rule, the paper will first look at the attempts to harmonize substantive law on assignment and at the attempt by the
EU to harmonize (at least part of) the conflict of laws rules in respect of assignment by including a provision (article 12) on assignment of rights in the Rome Convention, particularly in respect of the proprietary aspects of an assignment. Comparing the provisions of article 12 of the Rome Convention as interpreted in different EU States will show whether that harmonization has been successful. The jurisdictions that are discussed in this paper are the Netherlands, Germany, England, France and Belgium.