Law Applicable to The Assignment of Receivables Involving Foreign Element
With the growth of international trade and finance, the number of transactions of assignment of receivables, involving foreign element, is increasing. The cross-border use of assignments of receivables has raised the question of which country’s law should be applied to the tripartite relations, comprising the debtor-creditor, creditor (assignor)–assignee and assignee–debtor relations. The Law No. 5718 on Private International Law and Procedural Law (PILA) does not include a specific provision on the law applicable to the assignment of receivables. Several other conflicts of laws rules, principally the Rome Convention and its successor Rome I Regulation, which were specially considered in the preparation stage of the PILA No. 5718, contain specific provisions to be applied to the assignment of receivables. Some countries have gone a step further and regulated the third-party effects of an assignment of receivables. Taking into account the developments in comparative law, this paper will examine the issue of applicable law to the assignment of receivables under the Turkish Private International Law.
Yabancı Unsurlu Alacağın Devri İşlemine Uygulanacak Hukuk
Uluslararası ticaret ve finans işlemlerinin yaygınlaşması ile birlikte, yabancılık unsuru içeren alacağın devri işlemlerinin sayısı artmaktadır. Alacağın devri kurumunun sınır-ötesi kullanımı, borçlu-alacaklı, alacaklı (devreden)-devralan ve devralan-borçlu şeklinde üçlü tarafın dahil olduğu ilişkilere hangi ülke hukukunun uygulanması gerektiği sorununu ortaya çıkarmıştır. 5718 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun (MÖHUK)’da alacağın devri işlemine uygulanacak hukuk konusunda özel bir düzenlemeye yer verilmemiştir. Başta 5718 sayılı MÖHUK’un hazırlanması aşamasında özel olarak dikkate alınan Roma Sözleşmesi ve halefi olan Roma I Tüzüğü olmak üzere, diğer kanunlar ihtilafı kurallarında ise alacağın devri işlemine uygulanacak hukuk konusunun özel olarak düzenlendiği görülmektedir. Bazı ülkeler bir adım daha öteye giderek, alacağın devri işleminin üçüncü kişilere etkisine hangi hukukun uygulanması gerektiğini düzenlemiştir. Bu çalışmada karşılaştırmalı hukuktaki gelişmeler de göz önüne alınarak, Türk Milletlerarası Özel Hukuku bakımından yabancı unsurlu alacağın devri işlemine uygulanacak hukuk konusu ele alınacaktır.
The assignment of receivables is the process of transferring the receivable arising from a debt relationship to a third party. In the early periods of Roman law and common law, the debt liability and the right to claim receivable arising from the debt relationship between the debtor and the creditor are considered to be inextricably linked to the personalities of the debtor and the creditor. Thus, assignment of receivables was not allowed. However, due to the necessities of commercial life, the opposite of this view has started to dominate over time and the assignment of the receivables has been recognized as an institution. In modern legal systems, assignment of receivables has been widely used for many purposes such as performance, collection, guarantee and donation. In addition to its domestic use, with the growth of international trade and finance, cross-border use of assignment of receivables has increased. Cross-border assignment of receivables is used specifically for international financing. In this context, the companies operating internationally use the assignment of receivables to meet their immediate cash needs, to provide collateral for obtaining credit and to finance the large scale projects. The main reason for funding through the cross-border assignment of receivables is that the cost of the financing obtained in this way is lower than that of the conventional financing instruments. Nonetheless, the cross-border use of assignments of receivables has raised the question of which country’s law should be applied to the tripartite relations, comprising the debtor-creditor, creditor (assignor)–assignee and assignee–debtor relations. The Turkish Private International Law and International Civil Law (PILA No. 5718) does not include a specific provision on the law applicable to the assignment of receivables. Thus, the law applicable to the assignment of the receivables should be determined within the framework of general provisions. Some guidance may also be drawn from the EU and the international practice. Indeed, the Rome Convention and its successor Rome I Regulation, which were specially considered in the preparation stage of the PILA No 5718, contain specific conflict of law provisions to be applied to the assignment of receivables. United Nations Convention on the Assignment of Receivables in International Trade (UNCITRAL Receivables Convention), though not entered into force, also provides conflicts of law rules to be applied to the assignment of receivables, arguably reflecting the international practice. In this regard, under the Turkish Law, the relationship between assignor and assignee under a voluntary assignment shall be governed by the law that applies to the contract between the assignor and assignee i.e. contract by which the receivable is assigned. Thus, in accordance with the principle of freedom of contract, it should be accepted that assignor and assignee may choose either explicitly or implicitly the law applicable to the relationship between them. If the parties do not choose a law, then the applicable law will have to be determined in accordance with the objective conflict of law rules. Concerning the relationship between assignee and debtor, the law governing the assigned receivable shall determine not only the relationship between the assignee and the debtor, but also the assignability of receivable, the conditions under which the assignment can be invoked against the debtor and whether the debtor’s obligations have been discharged. It is worth to mention that this approach is internationally accepted. Indeed since there is no voluntary relationship between the debtor and the assignee, the debtor’s situation should not be worsen because of the assignment. Finally, it is possible that assignment of the receivables may affect the third parties. Some third parties that may be affected by the assignment can be listed as follows: In case of bankruptcy of the assignor “the bankruptcy administration”, if the assignor assigns the same receivable to more than one assignee “the other assignees” and “creditors of the assignor”. In this context, whether or not the assignee acquires the receivable validly, priority of the assigned receivable over a right of another person, and effectiveness of the assignment against the third parties are the issues that need to be addressed in regard to third party effects of the assignment of receivables. Thus, determining applicable law to the third party effects of assignment of the receivables is the most complex and controversial subject in terms of the assignment of the receivables. Although there are three potential alternatives to the law applicable to the third party effects of assignment of the receivables i.e. the law governing contract for assignment, the law governing the assigned claim and law of habitual residence of the assignor, the most appropriate one is the law of habitual residence of the assignor. However, as accepted by the EU and the UNCITRAL Convention, law of the assigned claim should apply or at least the parties should be allowed to choose this law, to the cash credited to a bank account and assignment of claims arising from financial instruments under the Turkish Law as well.
