Private International Law Sciences Po Paris Spring 2017 PIL for property law Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

Forum – immovable property I Norwegian buyer Immovable property in Italy The buyer does not pay the whole price Seller sues the buyer to obtain payment Which court is competent?

Forum – immovable property II Norwegian buyer Immovable property in Italy The buyer claims the contract is invalid Which court is competent?

Forum – immovable property III Norwegian buyer Immovable property in Italy The property has a negative easement to prevent blocking the seller’s neighbouring property’s view The seller seeks a declaratory judgment confirming the extent of the property right transferred to the buyer Which court is competent?

Qualification I Disputes on performance or validity of a contract having as its object immovable property: relate to contract Defendant’s forum Place of performance Place of branch Agreed forum

Qualification II Disputes on the existence, extent or performance of a property right (right in rem) in immovable property: Exclusive forum

Forum – property rights in immovables Art. 24.1 Brussels I, art. 22.1 Lugano: rights in rem in immovable property: The court of the member state where the immovable property is located Exclusive jurisdiction

Forum – property rights in movables Norwegian debtor English creditor Floating charge over all debtor’s assets Dispute about floating charge’s validity Jurisdiction clause in contract: London Which court is competent?

No separate category for movable property Even though dispute regards property rights, the jurisdiction rules for contract apply Defendant’s forum Place of performance Agreed forum

Possible circumvention Floating charge is forbidden under English law Parties choose English forum If English courts apply English law (they should not), they may declare floating charge valid English decision to be recognised and enforced under Brussels I even though it applied wrong law Violation of public policy?

Choice of law – immovable property I Norwegian buyer Immovable property in Italy The buyer does not pay the whole price Seller sues the buyer to obtain payment Which law governs?

Choice of law – immovable property II Norwegian buyer Immovable property in Italy The buyer claims the contract is invalid Which law governs?

Choice of law – immovable property III Norwegian buyer Immovable property in Italy The property has a negative easement to prevent blocking the seller’s neighbouring property’s view The seller seeks a declaratory judgment confirming the extent of the property right transferred to the buyer Which law governs?

Qualification I Disputes on performance or validity of a contract having as its object immovable property: relate to contract Party autonomy Absent parties’ choice: Art. 4.1(c) Rome I: Law of the place where the property is located

Qualification II Disputes on the existence, extent or performance of a property right (right in rem) in immovable property: Property law

Choice of law for property law PIL for property law not regulated in EU PIL National PILs: law of the country where the property is located (lex rei sitae)

Choice of law – movable property Norwegian debtor English creditor Floating charge over all debtor’s assets Dispute about floating charge’s validity Governing law clause in contract: English law Which law governs?

Qualification Disputes on the existence, extent or performance of a property right (right in rem) in movable property: Property law

Choice of law for property law PIL for property law not regulated in EU PIL National PILs: law of the country where the property is located (lex rei sitae) Party autonomy does not apply

When the goods move Norwegian producer sends its raw materials for processing to a Russian plant According to the tolling agreement, the property of the materials is at all time with the Norwegian producer The Russian plant uses the materials in its possession as security for a loan it takes with a Russian bank The Russian bank is not aware that the materials are not the property of the Russian’s borrower The loan is defaulted, and the Russian bank exercises its security rights on the materials Which country’s law governs?

Producer Bank Plant

Plurality of relationships Between the parties to the tolling agreement Between the parties to the loan agreement Between the Norwegian producer and the Russian bank

Qualification Between the parties to a contract: contract law Between a party who asserts a property right and a third party: property law

Lex rei sitae for movable goods The law of the country where the thing is located – at what point in time? At any given time

Assignment of claims Norwegian distributor borrows money in England As a security, distributor assignes to the lender its claims towards the buyers Which law governs?

Buyers Which law governs? Bank assignment Distributor invoices

Buyers Bank Distributor Creditors Creditors Which law governs? assignment Distributor invoices Creditors Creditors

Plurality of relationships Distributor-buyers Distributor-financial institution Buyers-financial institution Distributor’s creditors-financial institution Financial institution’s creditors-distributor

Qualification Contract law: Property law: (Art. 27.2 Rome I) Distributor-buyers (Art. 3, 4 Rome I) Distributor-financial institution (Art. 14.1 Rome I) Buyers-financial institution (Art. 14.2 Rome I) Property law: (Art. 27.2 Rome I) Distributor’s creditors-financial institution Financial institution’s creditors-distributor