Rethinking conflit mobile: applying the law of comi to rights in rem

• Pages: 477-490
• Author: Gilles Cunibert

RETHINKING CONFLIT MOBILE: APPLYING

THE LAW OF COMI TO RIGHTS IN REM

Gilles cuniBerti*

University of Luxembourg

SUMMARY: I. INTRODUCTION.— II. JUSTIFYING THE APPLICATION OF THE

LAW OF COMI: 1. Challenging the rationales for the application of the lex situs;

2. The alternative choice of law rule in more details; 3. Comparing the merits of the

two choice of law rules: 3.1 Stability of Connecting Factor and Legal Certainty; 3.2

Insolvency.— III. SCOPE OF THE NEW CHOICE OF LAW RULE: 1. Assets;2.

Actors; 3. Conicts; 4. Third States.

I. INTRODUCTION

One of the major issues raised by the application of the lex rei

sitae to in rem rights is that the connecting factor on which the choice

of law rule relies can be unstable. If the relevant asset is moveable,

it can be moved to another jurisdiction, which would result in the

connecting factor designating another law. This is a traditional prob-

lem in the conflict of laws, that French scholars have labelled conflit

mobile. It is not peculiar to property law, as many other connecting

factors (nationality, residence, seat of companies, etc.) can change and

trigger a change in the applicable law. But it is probably in property

law that the problem is the most acute, because assets cross borders

routinely, in particular in the context of international trade (goods and

raw materials for instance), international transportation (planes, trains

and trucks for instance) or workers commuting (cars).

* Professor of Private International Law and Comparative Law, President of the European

Association of Private International Law.

PRIVATE INTERNATIONAL LAW ON RIGHTS IN REM IN THE EUROPEAN UNION

DERECHO INTERNACIONAL PRIVADO SOBRE DERECHOS REALES EN LA UNIÓN EUROPEA

Maria Font-Mas (dir.)

ISBN: 978-84-1381-849-8

Madrid, 2024

pp. 477-490

DOI: 10.37417/PILRIRUE/20

Marcial Pons Ediciones Jurídicas y Sociales

Editado bajo licencia Creative Commons Attribution 4.0 International License