A Study On The Conflict Of Laws In The Receivables Assignment In International Trade

With the variance of international trade environment, non-L/C payment terms have become the most widely used settlement method in international trade. Among all the non-L/C payment terms in payment exchanges, open account (O/A) is the main terms. As O/A is a mode of payment with certain term limit, exporters not only have to face pressures from shortage of liquid capital, but also should try to manage receivables, including accounting, dunning payments, collecting payments, dispute settlement and so on. It is hard for exporters engaged in international business to complete such work only with their own efforts to make the receivables administration as a specialized business. In this way, a specialized agency which technically deals with management and financing service of receivables gradually came into being and made the business of management and financing of receivables develop into a new type trade and financial technique. Receivables assignment is the fundamental business in managing and financing service of receivables.From the angle of law, receivables means the right of getting payment for any sold or rented goods or provided services, irrespective of the nature of basic contracts and status of receivables on the account book of companies. To be brief, receivables represents a kind of contract creditor's rights in law. Therefore, all the key law problems of receivables assignment are those of the assignment of creditor's rights. Due to a lot of conflicts existing in each country's stipulations in their domestic laws about the assignment of creditor's rights, relevant international customs and international conventions have been established to overcome the conflictsamong those countries' domestic laws, and actually significant achievements have been obtained, especially the United Nations Convention on the Assignment of Receivables in International Trade adopted by voting on the United Nations General Assembly, and the convention will exert great influence on the uniform tendency of laws of receivables in international trade. However, with regard to our country's legislation, although the law problems of contract assignment are stipulated in Clause 79-83 of the Contract Law of the People's Republic of China, many problems which should be explicitly stimulated fails to be put into effect in the law and some regulations are not in accordance with international conventions. Therefore, this article is attempted to deeply analyses the law conflicts among each country's stipulations on their domestic laws about the assignment of creditor's rights and in this article the author discuss the standpoints and methods of international conventions when applied to settle conflicts among each country's law, for the sake of providing beneficial instructions for our country's practical business of receivables assignment, and providing helpful instructions for consummating law system of our country's creditor's rights. The paper consists of six parts:In the first chapter, the author defines international assignment of receivables in terms of law. This thesis holds the point of view that receivables assignment is a form of assignment of creditor's rights in practice. In United Nations Convention on the Assignment of Receivables in International Trade clearly the drafters distinguish receivables, receivables assignment as well as international receivables, and list the applicable international receivables which are excluded by the United Nations Convention on the Assignment of Receivables in International Trade.In the second chapter, the author explores into the restrictions ofinternational assignment of receivables. Although all countries allows assignment of creditor's rights under the principle of free transfer nowadays, yet with regards to the consideration of social policy or the need of respecting creditor's nature all these countries acknowledge the suitability to limit the creditor's, rights' assignment Two aspects confine the assignment of creditor's rights: one is from law;the other is from contract. In this thesis the author analyses in details these aspects of restrictions in different national legislations, and approaches the state point of the United Nations Convention on the Assignment of Receivables in International Trade oIn the third chapter, the author concerns about the form of international receivables and its notice. Different national legislations require different form of receivables assignment contract, while The Convention leaves its form to the norm that controls the contracts. The notice of international receivables includes the issues such as the need of informing the creditor, the ways of informing, the body of informing and the effect of informing. As for these issues, countries do not get an unanimous way to deal with it, however, the Convention unifies the various ways in some degree.In the fourth chapter, the author probes into the effects of the international contract about receivables assignment. The effect is a fourfold problem, (a) if it is influenced by the basic exchange contracts, (b) interior effects of contract of receivables assignment, (c) its effect exerted to debtors, and (d) its effect on the third side. Different countries have varied prescriptions concerning these problems, therefore some conflicts of legal procedure are inevitable. The Convention lays some rules for settling these conflicts, and thus it is helpful to the development of legislations that have acknowledgements in countries all around the world.In the fifth chapter, the author concentrates on the legal applicability ofinternational receivables assignment. Its nature is legal applicable problems of contracts. The Convention induces three relationships from international receivables assignment and sets suitable rules to these relationships. Legal relationship between the transferor and the transferee is applicable to the law that the party has chosen. If the party has not chosen one, it is suitable to the law in the place that has the closest relation with the said contract. Second, problems of rights and obligations between the transferee and the debtor are appropriate for legal judgments of managing the receivables. And the relationship between transferee and the third side suits the law of the transferor's place, which, however, should not be against public policies made in the country where the concerned court locates.In the sixth chapter, the author analyzes development of the regulation of receivables assignment in China. The present writer first presents the significance that the Convention means to our country, and follows with the discussion of disadvantages of its relevant rules about the assignment of creditor's rights. In the process of analysis, the author of this thesis further tenders some pieces of advice for the perfection of related legislation in our country.