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Skuteczność przelewu wierzytelności wobec osób trzecich innych niż dłużnik w krajowym i międzynarodowym obrocie handlowym

100%
Wowerka A.
Kwartalnik Prawa Prywatnego
|
2020
|
vol. 29
|
issue 4
669-700
EN
The assignment of claims is the basis of many financial instruments used by entrepreneurs both in national and international trade in order to obtain liquidity and have access to credit, as in factoring and collateralisation, and in order to optimise the use of their capital, as in securitisation. The effectiveness of the above-mentioned instruments, and thus the development of commercial transactions, largely depends on ensuring the acquisition of legal title over the assigned claim. It is important for the assignee (for example, a factor, a collateral taker or an originator) as third parties could claim legal title over the same claim. The effects of an assignment vis-à-vis third parties and the determination of the rules of priority between parties asserting rights to the same claim is one of the most important issues in the system governing contractual transfer of claims and largely determines the effectiveness of this system. The national substantive laws provide different rules applicable to the resolution of the priority conflict between competing assignees. In this respect, the rules of the EU model law contained in the European Principles of Contract Law offer an interesting alternative. Nevertheless, different approaches of national laws to this issue have resulted in the failure to adopt a uniform mechanism used to determine priority at the level of international uniform substantive law with regard to international trade. In this respect, a compromise solution is provided by the UNCITRAL Convention on the Assignment of Receivables in International Trade, based on the application of the conflict of laws’ connecting factor and the substantive law applicable on the basis of an opt-in rule. The issue of the effects of an assignment vis-à-vis third parties is also being discussed at the level of private international law. Legal uncertainty as to which national law determines who owns a claim further to a cross-border transaction is not conducive to the cross-border transactions in claims. In the EU dimension, the postulate that the applicable law should be determined in a manner ensuring legal certainty and predictability was accepted in the European Commission’s proposal for a regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignment of claims. It looks like the uniform provisions contained in this regulation offer a mechanism that should at least contribute to reducing legal risk and facilitating access to cheaper credit, and, thus, increasing foreign investment, as well as strengthening and integrating financial markets.
2

Faktoring w prawie niemieckim

100%
Wowerka A.
Kwartalnik Prawa Prywatnego
|
2011
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vol. 20
|
issue 1
209-231
EN
The German private law contains no specific regulations on factoring. Thus, the factoring is governed by the general provisions of the civil code and by the provisions of the commercial code relating to the commercial transactions. The factoring contract concluded at the beginning of the co-operation between the factor and the supplier is a frame contract, which provides an obligation to conclude the further performing agreements. Such particular agreements to be concluded under this frame contract may be classified as a contract of sale of receivables or as a loan contract with additional assignment of receivable securing the loan repayment. The factoring is based on the transfer of the receivables. According to the German law, the assignment of receivables is the only instrument of the transfer of receivables within the factoring transactions to the factor. The German law on the assignment of receivables provides some important rules which facilitate and thus promote the factoring. In particular, it allows the general assignment of (existing and future) receivables, removes the ban of assignment incorporated in the civil code. In addition, with its rules on transfer of accessory rights securing payment of the assigned receivable and the priority rules referring to the persons who, by operation of law, claim the rights in the same assigned receivable, it clarifies the effects of an assignment. By establishing the abstraction principle with respect to the assignment it also removes the uncertainty concerning validity of the assignment agreement. Moreover, it confirms a generally accepted rule, that an assignment does not affect the debtor's legal position without the debtor's consent. All these rules can maintain a fair balance of interests between the different parties involved in factoring transactions.
3
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Cross-border Transfer of a Seat, Cross-border Conversion or the Coming into Existence of a New Company? Doubts Against the Background of the Court of Justice’s Judgment in C-106/16 Polbud – Wykonawstwo Sp. z o.o

63%
Majkowska-Szulc S., Wowerka A.
Polish Yearbook of International Law
|
2018
|
vol. 38
275-289
EN
This article focuses on mobility of companies in the European Union in the light of the Court of Justice’s judgment in the C-106/16 Polbud – Wykonawstwo sp. z o.o. case. The Court of Justice has once again interpreted the treaty provisions relating to the EU freedom of establishment in the context of cross-border conversion of companies. The in-depth analysis of the case from the substantive law perspective as well as from the conflict-of-law perspective has raised some doubts with regard to the background of the judgment. Therefore, the article assesses whether the cross-border transfer of a seat took place in the Polbud case or the cross-border conversion, or possibly a new company has come into existence. Most of the analysis is aimed at exposing the risks related to the companies’ mobility under the rules adopted in the Polbud judgment, in particular in the absence of respective European and national regulation.
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