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					               Uniform Law for the
                 Assignment of
                   Receivables
    UN Convention on the Assignment of Receivables in
                   International Trade
     UNIDROIT Convention on International Factoring
               European Principles (PECL)
                Unidroit Principles (PICC)


Claudia Rudolf, Faculty of Law, University of Vienna
  „Assignment“
  right is transferred voluntarily by the assignor (who is the old
  creditor) to the assignee (who is the new creditor)
  can be distinguished from the agreement between the parties
  embodying the economic objective that has led them to transfer
  the right


  „Receivables“
  debts or right to payment of money


  „Receivables financing“
  transactions on which cash is raised based on receivables

Claudia Rudolf, Faculty of Law, University of Vienna                 2
  UN Assignment Convention
  • international treaty
  • binding instrument
  • aimed at unifying national laws relating to international
  assignments



  Unidroit Factoring Convention
  • entered in force on May 1st 1995
  • international treaty
  • binding instrument
  • aimed at facilitating international trade by promoting
  international factoring

Claudia Rudolf, Faculty of Law, University of Vienna            3
  Unidroit Principles (PICC)
  • not a binding instrument
  • can not be ratified by states
  • relate to international commercial contracts



  European Principles (PECL)
  • not a binding instrument
  • can not be ratified by states
  • apply to all kinds of contracts




Claudia Rudolf, Faculty of Law, University of Vienna   4
  UN Assignment Convention (1)
  main objective:
  Facilitating international receivables financing
  practices
  Parties of an assignment:
  • assignor
  • assignee
  • debtor

  Convention applies to:
  • international assignments
  • assignment of international receivables


Claudia Rudolf, Faculty of Law, University of Vienna   5
 UN Assignment Convention (2)
 „Assignment“
 is defined as the transfer of property in receivables by agreement
 includes:
 • pure outright transfers

 • outright transfers for security purposes and
 • the creation of security rights in receivables

 Distinction between
 • the assignment and
 • the underlying contract

 „Receivable“
 is defined as contractual right to payment of a monetary sum.
Claudia Rudolf, Faculty of Law, University of Vienna                  6
 UN Assignment Convention (3)
 Territorial scope:
 assignor is located in a State that is party to the Convention

 debtor-related provisions:
 the debtor is also located in a State party to the Convention or if the law
 governing the assigned receivables is the law of a State party to the
 Convention


 Subsequent assignment:
 all subsequent assignments, if the prior assignment is governed by the
 Convention
 subsequent assignment covered by the Convention whether or not the
 prior assignment is governed by the Convention


Claudia Rudolf, Faculty of Law, University of Vienna                     7
  UNIDROIT Factoring Convention (1)


  parties of a factoring transaction:
  • supplier (this is the assignor),
  • debtor
  • factor (this is the assignee)


  Two-factor-system:
  • assignment supplier  export factor
  • assignment export factor  import factor



Claudia Rudolf, Faculty of Law, University of Vienna   8
UNIDROIT Factoring Convention (2)
Factoring contract:
contract between the supplier (the assignor) and a factor
    pursuant to which
1. supplier will assign to the factor receivables which are not
   „consumer receivables“
2. the factor performs at least two of four described functions
3. notice of the assignment is to be given to the debtor



International character of factoring transactions:
determined by the international character of the contract of sale

Claudia Rudolf, Faculty of Law, University of Vienna                9
UNIDROIT Factoring Convention (3)
Territorial scope of application:
•   supplier, debtor and factor have their places of business in Contracting
    States
•   both the contract of sale and the factoring contract are governed by the
    law of a Contracting State




Subsequent assignment
•   Convention is applicable provided that the subsequent assignment is not
    prohibited under the terms of the factoring contract
•   notice of the debtor of the subsequent assignment to the import factor
    constitutes notice of the assignment to the first assignee



Claudia Rudolf, Faculty of Law, University of Vienna                         10
European Principles (PECL)

• assignment of monetary and non-monetary claims
• consensual assignments of claims
• outright transfer
• transfer by way of security
• grant of the security otherwise than by way of
    transfer




Claudia Rudolf, Faculty of Law, University of Vienna   11
Unidroit Principles (PICC)

• assignment of monetary and non-monetary claims
• transfer by agreement
• outright transfer
• transfer for security purposes




Claudia Rudolf, Faculty of Law, University of Vienna   12
 UN Assignment Convention

 Contractual limitations (Art 9):
 For certain types of receivables the Convention
           an assignment made in violation of an
 • validates
 antiassignment clause
 • without eliminating any liability that the assignor
 may have for breach of contract under law applicable
 outside the Convention and
 • without extending that liability to the assignee




Claudia Rudolf, Faculty of Law, University of Vienna     13
   UNIDROIT Factoring Convention:

   Prohibitions on assignment of receivables:
   • are not effective with the respect of the validity of
        the assignment
   • the assignor remains liable to the buyer for any
        damages under applicable law
   • a State may adopt a reservation to that provision




Claudia Rudolf, Faculty of Law, University of Vienna    14
European Principles (PECL)

Contractual prohibition of assignment

Assignment is not effective against the debtor unless
• the debtor has consented to it
• the assignee neither knew nor ought to have
    known of the nonconformity
• the assignment is made under a contract for the
    assignment of future rights to payment of money



Claudia Rudolf, Faculty of Law, University of Vienna   15
Unidroit Principles (PICC)

Non-assignment clauses

In an assignment of monetary claims

• the assignment is fully effective
• the assigor may be liable to the debtor




Claudia Rudolf, Faculty of Law, University of Vienna   16
UN Assignment Convention

Debtors discharge (Art 17)
• subject to an objective criterion (notification)
• not relevant: knowledge of a previous assignment
• debtor may request adequate proof: assignee gives
notification without the co-operation or apparent
authorisation of the assignor
• not excluded other ways of discharge that may exist
under national law applicable outside the Convention


Claudia Rudolf, Faculty of Law, University of Vienna   17
 UNIDROIT Factoring Convention

 Debtors discharge
 Debtor is obligated to pay the factor:
 • after he receives a written notice of assignment
     and
 • if the debtor does not have knowledge of any other
     person’s superior right to payment.
 • Convention does not affect any other ground,
     resulting from the applicable national law, on
     which payment by the debtor to the factor
     discharges the debtor.
Claudia Rudolf, Faculty of Law, University of Vienna   18
European Principles (PECL)

notice
• reasonably identify the assigned claims
• reasonably identify the assignee
• require the debtor to give performance to the
    assignee
•    notice from the assignee: debtor entitled to
    evidence

Knowledge of the assignment
• debtor cannot give performance to the assignor

Claudia Rudolf, Faculty of Law, University of Vienna   19
Unidroit Principles (PICC)
• subject to an objective criterion (notification)
• not relevant: knowledge of a previous assignment
• debtor may request adequate proof




Claudia Rudolf, Faculty of Law, University of Vienna   20
 Convention conflict
 • The Assignment Convention prevails over the
 Factoring Convention

 • A partial application of the Factoring Convention is
 not possible




Claudia Rudolf, Faculty of Law, University of Vienna   21
 Final remark
 The Assignment Convention reaches compared to the
 Factoring Convention a higher degree of unification
 of law.

 Never the less the Factoring Convention has already
 taken force, while the Assignment Convention had
 not proved itself in practical use until now and was
 not adopted yet by the states.




Claudia Rudolf, Faculty of Law, University of Vienna   22
             Thank you for your attention.


                    Hvala za vašo pozornost.


        Danke für Ihre Aufmerksamkeit.


Claudia Rudolf, Faculty of Law, University of Vienna   23

				
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