The conditions under which the assignment of a claim can be invoked against the debtor of the claim and other third parties in Belgium are set out in Article 1690 of the Civil Code.
In private international law, the question arises of which law governs the enforceability of an assignment of a claim towards the debtor and other third parties in an international context.
Article 12-2 of the Treaty of Rome (June 19 1980) determines the applicable law governing the enforceability of an assignment of a claim towards the debtor of the claim as follows:
"The law governing the right to which the assignment relates shall determine its assignability, the relationship between the assignee and the debtor, the conditions under which the assignment can be invoked against the debtor and any question whether the debtor's obligations have been discharged."
However, the Treaty of Rome does not consider the enforceability of the assignment towards third parties, other then the debtor. According to the traditional view of Belgian legal scholars, this question was covered by the law of the jurisdiction of the debtor's domicile (see Van Hecke, G., Lenarts, K., Internationaal Privaatrecht, in APR,1989, nr 657).
Surprisingly, the law of August 2 2002 regarding the control on the financial sector and financial services (wet van 2 augustus 2002 betreffende het toezicht opde financiële sector en de financiële diensten) (BS 4 September 2002), contains the following article 145:
"The enforceability of the assignment agreement towards other third parties than the debtor will be determined by the law governing the assignment agreement."
This provision implies an important modification to the renvoi rules of Belgian Private International Law.
An example demonstrates this:
A Belgian limited liability company assigns its claims on a German debtor to a French Bank. The assigned claim and the assignment agreement are governed by Belgian law.
According to article 12-2 of the Treaty of Rome, the enforceability of the assignment towards the German debtor will be determined by Belgian law.
According to the traditional view of Belgian legal scholars, the enforceability towards other third parties was determined by German law (the law of the jurisdiction of the debtor's domicile).
Article 145 of the law of August 2 2002 implies that the conditions under which the assignment of the claim can be invoked against third parties, other then the debtor, will be governed by the law governing the assignment agreement (that is, Belgian Law).
The consequences of this new rule are significant in the framework of international transactions of factoring or the securitization of claims, as it allows the parties to the transaction to choose the law that will be applicable on the enforceability of the assignments towards third parties.
On the other hand, it will be extremely difficult for the creditors of the assignor (and its receiver in cases of bankruptcy) to determine which law governs enforceability.
Wilfred Goris and Dieter Veestraeten
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