The law applicable to third-party effects of assignments of claims: the UN Convention and the EU Commission Proposal compared

2019 ◽  
Vol 24 (4) ◽  
pp. 609-632
Author(s):  
Spyridon V Bazinas
Keyword(s):  
Third Party ◽  
The Third ◽  
The Us ◽  
United Nations Convention ◽  
The Law ◽  
The Third Party ◽  
Draft Regulation ◽  
Proposed Regulation ◽  
Eu Commission ◽  
The Eu

Abstract In October 2019, the U.S. ratified the United Nations Convention on the Assignment of Receivables in International Trade (the “Convention”) by the US, thus creating a new impetus for the broad adoption and entry into force of the Convention and with that for the facilitation of international receivables finance. In March 2018, the E.U. Commission issued a Proposal for a Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims (the “Commission Proposal” or “Proposal”). The Commission Proposal includes a first draft of the proposed Regulation (the “draft Regulation”). An alignment of the main rule of the draft Regulation with the equivalent rule in the Convention could result in an internationally uniform conflict-of-laws rule on this matter, which would remove the legal divergences existing among legal systems and reduce the uncertainty as to the law applicable to the third-party effects of assignments of claims. The purpose of this article is to compare the relevant rules of the Convention and the draft Regulation, determine whether this coordinated approach is achieved and, if not, make suggestions as to how it can be achieved to the benefit of all parties involved in international receivables finance.

scholarly journals Kolizyjnoprawna problematyka skuteczności przelewu wierzytelności wobec osób trzecich Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 9 października 2019 r. w sprawie BGL BNP Paribas SA c/a TeamBank AG Nürnberg (C‑548/18)

2020 ◽  
Vol 26 ◽  
pp. 223-236
Author(s):  
Witold Kurowski
Keyword(s):  
European Union ◽  
Third Party ◽  
The European Union ◽  
Conflict Of Laws ◽  
The Third ◽  
Common Opinion ◽  
The Law ◽  
The Third Party ◽  
Rome I ◽  
The Eu

The question of the law applicable to the third-party effects of assignments of claims is widely discussed in the doctrinal debates. In common opinion, the existing European conflict-of-laws regulations do not provide for a rule governing this issue. In the case BGL BNP Paribas SA v. TeamBank AG Nürnberg (C‑548/18), the Court of Justice of the European Union confirmed this gape of the Rome I Regulation.The gloss presents the justification of the European Union Court’s judgment, the reasons for the lack of the uniform conflict-of-laws regulation, and the consequences of this state. It also analyses briefly the European Commission’s proposal for the EU Regulation concerning the law applicable to the third-party effects of assignments of claims (COM(2018) 96 final), as a response to this situation. Finally, it examines the appropriate conflict-of-laws rules for proprietary effects of assignments of claims (the law of the assignor’s habitual residence and the law of the assigned claim).

Relaxations of Contractual Privity and the Need for Third Party Rights in Chinese Contract Law

2018 ◽  
Author(s):  
Chen Lei
Keyword(s):  
Direct Action ◽  
Contract Law ◽  
Third Party ◽  
Chinese Law ◽  
The Third ◽  
Right Of Action ◽  
The Law ◽  
The Third Party ◽  
The Right

This chapter examines the position of third party beneficiaries in Chinese law. Article 64 of the Chinese Contract Law states that where a contract for the benefit of a third party is breached, the debtor is liable to the creditor. The author regards this as leaving unanswered the question of whether the thirdparty has a right of direct action against the debtor. One view regards the third party as having the right to sue for the benefit although this right was ultimately excluded from the law. Another view, supported by the Supreme People’s Court, is that Article 64 does not provide a right of action for a third party and merely prescribes performance in ‘incidental’ third party contracts. The third view is that there is a third party right of action in cases of ‘genuine’ third party contracts but courts are unlikely to recognize a third party action where the contract merely purports to confer a benefit on the third party.

The Consequences of a Third Party Decision on Coopetition Strategies

2016 ◽  
Vol 14 (2) ◽  
pp. 1-19
Author(s):  
Anne-Sophie Fernandez ◽  
Francoise Pierrot
Keyword(s):  
Third Party ◽  
The European Union ◽  
Longitudinal Case Study ◽  
Accounting Standard ◽  
The Third ◽  
Setting Process ◽  
The Us ◽  
The Third Party ◽  
Accounting Standard Setting

Coopetition is a paradoxical strategy combining simultaneously cooperation and competition. Previous scholars investigated the role of the third-party in coopetition dynamics: it can initiate and drive the coopetition strategy or it can be involved in the management of the relationship. But the consequences of this involvement remain under-investigated. This research aims to fill this gap: what are the consequences of the involvement of a third-party in a coopetition strategy on the partners and their relationship? To answer this question, we conducted a longitudinal case study of coopetition strategies between two institutions the FASB and the IASB in the specific context of the global accounting standard-setting process and convergence process between the US GAAPs and the IFRSs.Our findings enable us to identify three different phases in the process. We provide evidence on the role of the third-party (the European Union in the case) in the evolution of the coopetition dynamic between the FASB and the IASB, and analyze the consequences on both partners and their relationship.

Conditions in Favour of Third Parties

1952 ◽  
Vol 11 (2) ◽  
pp. 240-257
Author(s):  
T. C. Thomas
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Common ◽  
The Law ◽  
The Third Party

The purpose of this article is to consider the legal effects of a transfer of property by A to B subject to the performance by B of some obligation in favour of C, a third party to the transfer. The student of the law of contract is well familiar with the common law rule that no one who was not an original party to the contract is entitled to the benefit of that contract. But this rule creates hardship in particular cases and it has been shown that, in the main, three methods have been evolved to evade those unfortunate results. First, the legislature has intervened and provided C, the third party, with statutory rights. Secondly, the doctrine of agency has been invoked whereby C may claim that he is the principal of B. Thirdly, but with varying success, the trust concept has been pressed into service whereby C has sometimes been able to show that he is a beneficiary.

scholarly journals Kolizyjnoprawna problematyka skuteczności przelewu wierzytelności wobec osób trzecich — projekt rozporządzenia Parlamentu Europejskiego i Rady w sprawie prawa właściwego dla skutków przelewu wierzytelności wobec osób trzecich (COM(2018) 96 final)

2019 ◽  
Vol 25 ◽  
pp. 67-90
Author(s):  
Witold Kurowski
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Habitual Residence ◽  
Eu Regulation ◽  
The Third ◽  
The Law ◽  
The Third Party ◽  
Contractual Obligations ◽  
Rome I

The question of which law should govern the third-party effects of assignments of claims was considered during the preparation of the Rome I Regulation. The European Commission’s proposal for the Rome I Regulation admitted the law of the assignor’s habitual residence as the law that should apply to the proprietary effects of assignments of claims. Finally, EU Regulation on the law applicable to contractual obligations did not include the issue of the third-party effects of the assignment. However, Article 27(2) of the Rome I Regulation required the European Commission to present a report on the question of the effectiveness of assignments of claims against third parties accompanied, if appropriate, by a proposal to amend the Rome I Regulation. Proposal for a Regulation on the law applicable to the third-party effects of assignments of claims (COM(2018) 96 final) is a response to this request. This paper analyses current draft of the new EU Regulation, the rules on determination of the third-party effects of assignments of claims (law of the assignor’s habitual residence and law of the assigned claim) and "super conflict rules" in specific cases. The author argues that the law of the assignor’s habitual residence remains the appropriate conflict rule for proprietary effects of assignments of claims.

scholarly journals AL-IJARAH AL-MUNTAHIYAH BI AL-TAMLIK (IMBT) DALAM PERSPEKTIF ANATOMI KONTRAK BISNIS

ALQALAM ◽  
2009 ◽  
Vol 26 (2) ◽  
pp. 193
Author(s):  
Jaih Mubarok
Keyword(s):  
Financial Institutions ◽  
Financial Institution ◽  
The State ◽  
Point Of View ◽  
Third Party ◽  
Business Unit ◽  
The Third ◽  
Arbitration Board ◽  
The Law ◽  
The Third Party

AI-Ijarah al-Muntahiyyah bi al-Tamlik (IMBT) is conceptually almost the same as leasing which is conducted by world financial institutions, including those of in Indonesia. IMBT is a service product of syari'a financial institution which is transparant and is able to involve the third party whenever it is necessary. In the context of Indonesia, economic syari'a is culturally designed and run by the Coumil of Indonesian Ulama (MUI). In order to regulate the bussiness in the syari'a system, MUI forms the Council of National Syari'a (DSN) issuing the fatwas; in order to give monitoring, DSN places The Board ef Syari'a Controller (DPS) in every business unit which uses syari'a system; in order to solve the syari'a business disputation, MUI forms the Arbitration Board of National Syari'a (Basyarnas). Moreover, The State has structurally accomodated the system of syari'a business in law and regulation. Therefore, The openess characteristics (the principle of free based contract) which is also practiced in the contract of IMBT is restricted by the law and regulation and considered appropriate in syari'a point of view based on DSN-MUI fatwas.

Contracts for the Benefit of Third Parties: Hong Kong

2018 ◽  
Author(s):  
Lee Mason
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Strict Adherence ◽  
The Third ◽  
English Law ◽  
The Law ◽  
The Third Party ◽  
Contractual Rights

This chapter analyses the law on third party beneficiaries in Hong Kong long characterized by strict adherence to the traditional common law doctrine of privity. The law relating to third party rights was only reformed by way of Ordinance in 2016, along the lines of the statutory reform of English law in 1999. A small number of specifically enumerated types of contract are excluded from the scope of the Ordinance; other contracts may be concluded to confer enforceable contractual rights on third parties. Whether a third party may enforce a term of a contract depends on the interpretation of the contract: if the third party right was not expressly conferred there is a presumption that the conferral was intended; but this can be rebutted if the parties made it clear that they did not intend it to be enforceable. The third party must be identified by name, as a member of a class, or answering a particular description and may claim the same remedies for breach as a party to the contract.

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