Expansion of Applicable Sphere: A way to Unif
y 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 int
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. Obv 《Expansion of Applicable Sphere: A way to Unif(第4页)》
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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 int
o 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. Obv 《Expansion of Applicable Sphere: A way to Unif(第4页)》
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