[ 陸棟生 ]——(2003-7-15) / 已閱31970次
IV. Sphere of Application: Party Autonomy and Exclusion
Both of the conventions set forth that parties to receivables assignment may choose to exclude the application of the said conventions.
According to article 3 of the UNIDROIT Convention, The application of this Convention may be excluded:
(a) by the parties to the factoring contract; or
(b) by the parties to the contract of sale of goods, as regards receivables arising at or after the time when the factor has been given notice in writing of such exclusion.
Similarly, article 6 of the UNCITRAL Convention provides, the assignor, the assignee and the debtor may derogate from or vary by agreement provisions of this Convention relating to their respective rights and obligations. But unlike UNIDROIT Convention, which stipulates that such exclusion may be made only as regards the Convention as a whole, the UNCITRAL Convention stipulates that agreement to derogate from this convention does not affect the rights of any person who is not a party to the agreement.
V. Conclusion
If the international uniform law’s sphere of application is not broader enough, i.e. some issues will still be subject to various domestic law system, the uncertainty exists cannot be thoroughly removed, which is contravening the very purpose of uniform law conventions. Compared with UNIDROIT Convention, the UNCITRAL has expanded a lot in its sphere of application and progressed forward on the way to uniformity. It has been argued given the convention’s potential impact on international trade, it may become the most important work that UNCITRAL has done so far.
In the meantime, the broader the convention’s sphere of application is, the difficult it is to be ratified by certain country. Up until the end of 2002, the UNCITRAL Convention has only been signed by Luxembourg. Considering when drafting this convention, the working group is composed of all States members of the Commission, including the United States, United Kingdom, Japan, China, France and other. For the process of formulation of this convention is participated and supported by lots of States and non-government organizations, it is believed that this convention will be widely recognized and accepted by most of the States.
1 See Steven L. Schwarcz, The Universal Language of Cross- Boarder Finance, 235, 236-37, Duke J. Company and International Law,8 (1998).
2 See Preamble of the UNCITRAL Convention.
3 Article 1(2) of the UNDROIT Convention.
4 See Steven L Schwarcz, Towards A Centralized Perfection System for Cross-Border Receivables Financing (1999).
5 See Assignment in Receivables Financing, Discussion and preliminary Draft of Uniform Rules, Report of the Secretary-General, UNCITRAL., 28th Session, para.25, U.N. Doc. A/CN.9/412/1995.
6 See id. paras. 26.
7 See id. paras. 27-28.
8 See id. paras. 29.
9 See id. paras. 22-29.
10 See Report of the Working Group on International Contract practices on the Work of its Twenty-fourth Session, UNCITRAL, 29th Session, para 16, U.N. Doc. A/CN.9/420 (1995).
11 Article 2(1) of the UNIDROIT Convention.
12 Steven L.Schwarcz, A fundamental Inquiry into the Statute Rulemaking Process of Private Legislatures, 29 GA.L.Rev. 909, 940 (1995) .
13 See LS Sealy& RJA Hooley, Commercial Law: Text, Cases and Materials (Second Edition), 937 (1999).
14 See Franco Ferrari, The UNCITRAL Draft Convention on Assignment in Receivables Financing: Applicability, General Provisions And The Conflict Of Conventions, 11, Melbourne Journal of International Law, 1 (2001).
15 Article 2(2) of the UNIDROIT Convention.
16 Article 5 of the UNCITRAL Convention.
17 Article 2(1) of the UNIDROIT Convention.
18 Article 1(3) of the UNIDROIT Convention.
19 Article 3(2) of the UNIDROIT Convention.
20 Article 6 of the UNCITRAL Convention.
21 See Gerald T. McLaughlin & Neil B. Cohen, International Accounts Receivables Financing, 216 N.Y.L.J. 3 (1996).
總共3頁 [1] [2] 3
上一頁
