Pavel Svoboda, JURI Committee, European Parliament, recently authored a draft Report on the 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. Amendments to the proposal of the European Commission are suggested. Here are the relevant extracts of the Explanatory Statement (most important amendments):
“Explicit exclusion of debtors
The law applicable to the consequences of an assignment for the debtor is regulated in Article 14 of the Rome I Regulation. Not explicitly excluding debtors from third parties under this Regulation would mean that the provision in Rome I applies by way of being lex specialist but that the question may arise to what extent this Regulation supplements Rome I. To make the third party consequences for debtors be solely regulated by Rome I, an explicit exclusion should be introduced in this Regulation.
Exclusion of insolvency proceedings
Regulation (EU) 2015/848 of the European Parliament ans of the Council of 20 May 2015 on insolvency proceedings contains rules relating to applicable law. For that reason, assignments done in the course of a collective proceeding according to that regulation should be excluded from the scope of application of this Regulation.
The Commission has proposed that the assignor and assignee would be able to choose the law applicable to third party consequences of an assignment. Such a rule goes across one of the fundamental principles of European civil law: that the parties to an agreement may not dispose over the rights of third parties by way of the agreement. To leave the parties to the assignment agreement in full discretion in the respect would, especially in the light of Article 3, go too far. However, a solution where the parties to the securitisation arrangement would be able to choose that the law applicable to the largest number of claims applies to all claims would achieve sufficient streamlining while it retains a sufficient level of protection for third parties”.