[ 陸棟生 ]——(2003-7-15) / 已閱30776次
Cross-boarder receivables assignments call for a uniform law. From this point, the UNIDROIT convention does not satisfy this requirement once and for all, for which it has been highly criticized.
Based on former experience, UNCITRAL Convention’s sphere of application is enlarged. In the first article, it states this convention applies to assignments of international receivables and to international assignments of receivables. And defines in article 3 that a receivable is international if, at the time of conclusion of the original contract, the assignor and the debtor are located in different States and an assignment is international if, at the time of conclusion of the contract of assignment, the assignor and the assignee are located in different States. Thus the internationality requirement of UNCITRAL Convention actually contains two internationality criteria, and the result is that this convention could be applied to all assignments of receivables with international elements, including: 1) international assignment of international receivables, where the assignor, assignee, and debtor are in three different countries; 2) domestic assignments of international receivables, where the assignor and assignee are in the same country, and the debtor is in another country; and 3) international assignment of domestic receivables where the assignor and debtor are in one country and the assignee in another country. In other words, the scope of UNCITRAL Convention covers all the assignment of receivables except pure domestic assignment of domestic receivables (i.e. where the assignor, the assignee and the debtor are in the same country) and it may be applied on a wide range of receivables financing in international trade.
b) Link to Contracting Party Requirement
Although internationality is required by both the two conventions, in order for the two conventions to apply, it is not sufficient that the internationality requirement is met. Both the conventions require there shall be a link with contracting party.
As in the UNIDROIT Convention, article 2(1) stipulates this convention would apply when any of the two requirements of link with contracting party are satisfied,
(a) those States and the State in which the factor has its place of business are Contracting States; or
(b) both the contract of sale of goods and the factoring contract are governed by the law of a Contracting State.
Thus, in the UNDIROIT Convention, the link to contracting party requirement is twofold: a territorial one and a legal one. The convention would apply whenever either of the two requirements is satisfied.
As for the UNCITRAL Convention, it also contains a territorial link requirement for its application in article 1(1), but different from the UNIDROIT Convention, it does not contain a legal link as article 2(1)(b) of the UNIDROIT Convention. No provisions could lead to the application of this convention when the territorial requirement is not met.
If we compare the territorial requirement in the two conventions, we would find the regulation is not identical. The UNIDROIT Convention requires the factor’s place of business is in contracting States while the UNCITRAL Convention requires not the factor (assignee), but the assignor has its place of business in contracting States. When probing the reason for this, one has to take into account that the UNDROIT Convention was drafted by a small group of experts who basically represent the interests of the factor (banks and financing institutions). The regulation maker is to protect the preferential and leading position of banks, and it’s no surprising that the UNDROIT Convention chooses factor’s place as connecting point. Actually in the two kinds of legal relationship in a receivables financing: the underlying trade relationship between the supplier and the debtor, and the receivables assignment between assignor (supplier) and the assignee, the key role connecting these two kinds of relationship is just the assignor, who would participate in both the two transactions and play the most important role. The UNCITRAL Convention recognizes the key status of the assignor and put its place of business as connecting point.
For the condition where the parties involved have multiple places of business, the two conventions also make different provisions on it. The UNIDROIT Convention solves the problem of identifying the place of business by referring to “the place of business which has the closest relationship to the relevant contract and its performance.” However, the UNCITRAL Convention refers to the “place where its central administration is exercised”. Using the place of “central administration” to substitute for the place “has the closest relationship to the relevant contract and its performance”, the UNCITRAL Convention chooses a more fixed and stable connecting point, which could increase the predictability a lot.
c) Requirement on the Receivables Assigned
The UNIDROIT Convention defines receivables as “arising from a contract of sale of goods between a supplier and a debtor” and supplements that "goods" and "sale of goods" in this convention shall include services and the supply of services. Obviously, the UNIDROIT Convention would apply when the receivables assigned are arising from contracts of sale of goods and supply of services.
Meanwhile, article 2(a) of the UNCITRAL Convention, when defining “assignment”, also defines “receivables” as “an undivided interest in the assignor’s contractual right to payment of a monetary sum”. The scope of any “contractual right” is a rather broad scope, which is followed by a detail list of exclusions and limitations under which the convention does not apply. According to article 4 of the UNCITRAL Convention,
(1) The convention does not apply to assignment to an individual for his or her personal, family or household purposes;
We could find the very word in article 1(2) of UNIDROIT Convention, where when limits receivables to the field as “arising from contracts of sale of goods made between the supplier and its customers”, it excludes “those for the sale of goods bought primarily for their personal, family or household use”. But on closer examination we would find the exclusion contained in the two conventions is not the same: the UNIDROIT Convention excludes the assignment of consumer receivables from its sphere of application while the UNCITRAL Convention excludes assignment made for consumer purposes. The four kinds of possible relations are illustrated in the following chart:
Receivables Assignment Which convention may govern
Consumer Receivables For consumer purpose Neither
Consumer Receivables For Commercial purpose UNCITRAL Convention
Commercial Receivables For consumer purpose UNIDROIT Convention
Commercial Receivables For Commercial purpose Both
The first situation is not difficult to understand where the consumer receivables are assigned for consumer purpose. It’s a general practice that international convention does not regulate on pure personal matters, let alone the UNCITRAL is an organization under the United States concentrating on international trade matters; Under the second situation, where consumer receivables are assigned for commercial purpose, it cannot be governed by the UNIDROIT Convention, but still could be subject to the UNCITRAL Convention; Under the third situation, where commercial receivables are assigned for consumer purpose, logically the UNDROIT Convention shall govern, but considering the UNDROIT Convention is a convention on international factoring, where factors are all banks and other financial institutions, the receivables are not possible to be assigned for consumer purpose, so this situation does not exist; Under the last situation where commercial receivables are assigned for commercial purpose, both of the conventions may be applied.
UNIDROIT’s attitude is understandable that banks don’t want consumer receivables, for pressing for payment from individuals is, in anyway troublesome and low profit. Thus exclusion of these consumer receivables is a natural choice. UNCITRAL Convention substitute the exclusion of consumer receivables to exclusion of receivables assigned for consumer purpose, regardless of the receivables is consumer or commercial one, thus expand the sphere of application of the convention. This expansion is justified for receivables, once coming into being, shall be separated from the underlying contract for the sale of goods. No matter the goods are bought for personal purpose or for commercial purpose, debt has come into being. The convention put the emphasis on the character of receivables assignment, not the character of underlying contract.
(2) The convention does not apply to assignment as part of the sale or change in the ownership or legal status of the business out of which the assigned receivables arose
Considering the complexity in the field of business transfer and the great inconsistency among various jurisdictions, the convention thus leave this part untouched. If UNCITRAL Convention insists to regulate on this sector, it would face great difficulty when being ratified by States. For this reason, the convention chooses a careful attitude and excludes this part out of its sphere of application.
(3) This Convention does not apply to assignments of receivables arising under or from: transactions on a regulated exchange, financial contracts governed by netting agreements, except a receivable owed on the termination of all outstanding transactions foreign exchange transactions, inter-bank payment systems, inter-bank payment agreements or clearance and settlement systems relating to securities or other financial assets or instruments, transfer of security rights in, sale, loan or holding of or agreement to repurchase securities or other financial assets or instruments held with an intermediary, bank deposits, letter of credit or independent guarantee,
In this article, the convention made a detail and exhaustive list on some receivables excluded. After reading this list carefully, one might find these exclusions are mostly in the financial fields. Since financial sector is of vital importance to the national economy and its fluctuation influences the society a lot, nearly all the States put this sector under its own jurisdiction, and different States’ regulations varies a lot. For the same reason above, the convention leave this part untouched.
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