Expansion of Applicable Sphere: A way to Unif
ention 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
(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.
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 internat 《Expansion of Applicable Sphere: A way to Unif(第6页)》
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(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.
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 internat 《Expansion of Applicable Sphere: A way to Unif(第6页)》
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