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| United
Nations Convention on the Assignment OF RECEIVABLES New Jork,
12. December 2001 Preamble The Contracting States, Reaffirming their conviction that international
trade on the basis of equality and mutual benefit is an important element
in the promotion of friendly relations among States, Considering that problems created by uncertainties
as to the content and the choice of legal regime applicable to the assignment
of receivables constitute an obstacle to international trade, Desiring to establish principles and to
adopt rules relating to the assignment of receivables that would create
certainty and transparency and promote the modernization of the law relating
to assignments of receivables, while protecting existing assignment practices
and facilitating the development of new practices, Desiring also to ensure adequate protection
of the interests of debtors in assignments of receivables, Being of the opinion that the adoption
of uniform rules governing the assignment of receivables would promote
the availability of capital and credit at more affordable rates and thus
facilitate the development of international trade, Have agreed as follows: Chapter I Article 1 1. This Convention applies to: (a) Assignments of international receivables and
to international assignments of receivables as defined in this chapter,
if, at the time of conclusion of the contract of assignment, the assignor
is located in a Contracting State; and (b) Subsequent assignments, provided that any prior
assignment is governed by this Convention. 2. This Convention applies to subsequent assignments
that satisfy the criteria set forth in paragraph 1 (a) of this article,
even if it did not apply to any prior assignment of the same receivable. 3. This Convention does not affect the rights
and obligations of the debtor unless, at the time of conclusion of the
original contract, the debtor is located in a Contracting State or the
law governing the original contract is the law of a Contracting State. 4. The provisions of
chapter V apply to assignments of international receivables and to international
assignments of receivables as defined in this chapter independently of
paragraphs 1 to 3 of this article. However, those provisions do not apply
if a State makes a declaration under article 39. 5. The provisions of
the annex to this Convention apply as provided in article 42. Article
2 For the purposes of this Convention: (a) “Assignment” means
the transfer by agreement from one person (“assignor”) to another person
(“assignee”) of all or part of or an undivided interest in the assignor’s
contractual right to payment of a monetary sum (“receivable”) from a third
person (“the debtor”). The creation of rights in receivables as security
for indebtedness or other obligation is deemed to be a transfer; (b) In the case of an
assignment by the initial or any other assignee (“subsequent assignment”),
the person who makes that assignment is the assignor and the person to
whom that assignment is made is the assignee. Article
3 A receivable is international if, at the time of conclusion of
the original contract, the assignor and the debtor are located in different
States. 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. Article
4 1. This Convention does
not apply to assignments made: (a) To an individual for
his or her personal, family or household purposes; (b) As part of the sale
or change in the ownership or legal status of the business out of which
the assigned receivables arose. 2. This Convention does
not apply to assignments of receivables arising under or from: (a) Transactions on a
regulated exchange; (b) Financial contracts
governed by netting agreements, except a receivable owed on the termination
of all outstanding transactions; (c) Foreign exchange transactions; (d) Inter-bank payment
systems, inter-bank payment agreements or clearance and settlement systems
relating to securities or other financial assets or instruments; (e) The 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; (f) Bank deposits; (g) A letter of credit
or independent guarantee. 3. Nothing in this Convention
affects the rights and obligations of any person under the law governing
negotiable instruments. 4. Nothing in this Convention
affects the rights and obligations of the assignor and the debtor under
special laws governing the protection of parties to transactions made
for personal, family or household purposes. 5. Nothing in this Convention: (a) Affects the application
of the law of a State in which real property is situated to either: (i) An interest in that real property to the extent
that under that law the assignment of a receivable confers such an interest;
or (ii) The priority of a right in a receivable to
the extent that under that law an interest in the real property confers
such a right; or (b) Makes lawful the acquisition
of an interest in real property not permitted under the law of the State
in which the real property is situated. Chapter
II Article
5 For the purposes of this Convention: (a) “Original contract”
means the contract between the assignor and the debtor from which the
assigned receivable arises; (b) “Existing receivable”
means a receivable that arises upon or before conclusion of the contract
of assignment and “future receivable” means a receivable that arises after
conclusion of the contract of assignment; (c) “Writing” means any
form of information that is accessible so as to be usable for subsequent
reference. Where this Convention requires a writing to be signed, that
requirement is met if, by generally accepted means or a procedure agreed
to by the person whose signature is required, the writing identifies that
person and indicates that person’s approval of the information contained
in the writing; (d) “Notification of the
assignment” means a communication in writing that reasonably identifies
the assigned receivables and the assignee; (e) “Insolvency administrator”
means a person or body, including one appointed on an interim basis, authorized
in an insolvency proceeding to administer the reorganization or liquidation
of the assignor’s assets or affairs; (f) “Insolvency proceeding”
means a collective judicial or administrative proceeding, including an
interim proceeding, in which the assets and affairs of the assignor are
subject to control or supervision by a court or other competent authority
for the purpose of reorganization or liquidation; (g) “Priority” means the
right of a person in preference to the right of another person and, to
the extent relevant for such purpose, includes the determination whether
the right is a personal or a property right, whether or not it is a security
right for indebtedness or other obligation and whether any requirements
necessary to render the right effective against a competing claimant have
been satisfied; (h) A person is located
in the State in which it has its place of business. If the assignor or
the assignee has a place of business in more than one State, the place
of business is that place where the central administration of the assignor
or the assignee is exercised. If the debtor has a place of business in
more than one State, the place of business is that which has the closest
relationship to the original contract. If a person does not have a place
of business, reference is to be made to the habitual residence of that
person; (i) “Law” means the law
in force in a State other than its rules of private international law; (j) “Proceeds” means
whatever is received in respect of an assigned receivable, whether in
total or partial payment or other satisfaction of the receivable. The
term includes whatever is received in respect of proceeds. The term does
not include returned goods; (k) “Financial contract”
means any spot, forward, future, option or swap transaction involving
interest rates, commodities, currencies, equities, bonds, indices or any
other financial instrument, any repurchase or securities lending transaction,
and any other transaction similar to any transaction referred to above
entered into in financial markets and any combination of the transactions
mentioned above; (l) “Netting agreement”
means an agreement between two or more parties that provides for one or
more of the following: (i) The net settlement of payments due in the same
currency on the same date whether by novation or otherwise; (ii) Upon the insolvency or other default by a party,
the termination of all outstanding transactions at their replacement or
fair market values, conversion of such sums into a single currency and
netting into a single payment by one party to the other; or (iii) The set-off of amounts calculated as set forth
in subparagraph (l) (ii) of this article under two or more netting agreements; (m) “Competing claimant” means: (i) Another assignee of the same receivable from
the same assignor, including a person who, by operation of law, claims
a right in the assigned receivable as a result of its right in other property
of the assignor, even if that receivable is not an international receivable
and the assignment to that assignee is not an international assignment; (ii) A creditor of the assignor; or (iii) The insolvency administrator. Article
6 Subject
to article 19, 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. Such an agreement does not affect the
rights of any person who is not a party to the agreement. Article
7 1. In the interpretation
of this Convention, regard is to be had to its object and purpose as set
forth in the preamble, to its international character and to the need
to promote uniformity in its application and the observance of good faith
in international trade. 2. Questions concerning
matters governed by this Convention that are not expressly settled in
it are to be settled in conformity with the general principles on which
it is based or, in the absence of such principles, in conformity with
the law applicable by virtue of the rules of private international law.
Chapter III Article 8 1. An assignment is
not ineffective as between the assignor and the assignee or as against
the debtor or as against a competing claimant, and the right of an assignee
may not be denied priority, on the ground that it is an assignment of
more than one receivable, future receivables or parts of or undivided
interests in receivables, provided that the receivables are described:
(a) Individually as receivables
to which the assignment relates; or (b) In any other manner,
provided that they can, at the time of the assignment or, in the case
of future receivables, at the time of conclusion of the original contract,
be identified as receivables to which the assignment relates. 2. Unless otherwise
agreed, an assignment of one or more future receivables is effective without
a new act of transfer being required to assign each receivable. 3. Except as provided
in paragraph 1 of this article, article 9 and article 10, paragraphs 2
and 3, this Convention does not affect any limitations on assignments
arising from law. Article
9 1. An assignment of
a receivable is effective notwithstanding any agreement between the initial
or any subsequent assignor and the debtor or any subsequent assignee limiting
in any way the assignor’s right to assign its receivables. 2. Nothing in this article
affects any obligation or liability of the assignor for breach of such
an agreement, but the other party to such agreement may not avoid the
original contract or the assignment contract on the sole ground of that
breach. A person who is not party to such an agreement is not liable on
the sole ground that it had knowledge of the agreement. 3. This article applies
only to assignments of receivables: (a) Arising from an original
contract that is a contract for the supply or lease of goods or services
other than financial services, a construction contract or a contract for
the sale or lease of real property; (b) Arising from an original
contract for the sale, lease or licence of industrial or other intellectual
property or of proprietary information; (c) Representing the payment
obligation for a credit card transaction; or (d) Owed to the assignor
upon net settlement of payments due pursuant to a netting agreement involving
more than two parties. Article
10 1. A personal or property
right securing payment of the assigned receivable is transferred to the
assignee without a new act of transfer. If such a right, under the law
governing it, is transferable only with a new act of transfer, the assignor
is obliged to transfer such right and any proceeds to the assignee. 2. A right securing
payment of the assigned receivable is transferred under paragraph 1 of
this article notwithstanding any agreement between the assignor and the
debtor or other person granting that right, limiting in any way the assignor’s
right to assign the receivable or the right securing payment of the assigned
receivable. 3. Nothing in this article
affects any obligation or liability of the assignor for breach of any
agreement under paragraph 2 of this article, but the other party to that
agreement may not avoid the original contract or the assignment contract
on the sole ground of that breach. A person who is not a party to such
an agreement is not liable on the sole ground that it had knowledge of
the agreement. 4. Paragraphs 2 and
3 of this article apply only to assignments of receivables: (a) Arising from an original
contract that is a contract for the supply or lease of goods or services
other than financial services, a construction contract or a contract for
the sale or lease of real property; (b) Arising from an original
contract for the sale, lease or licence of industrial or other intellectual
property or of proprietary information; (c) Representing the payment
obligation for a credit card transaction; or (d) Owed to the assignor
upon net settlement of payments due pursuant to a netting agreement involving
more than two parties. 5. The transfer of a
possessory property right under paragraph 1 of this article does not affect
any obligations of the assignor to the debtor or the person granting the
property right with respect to the property transferred existing under
the law governing that property right. 6. Paragraph 1 of this
article does not affect any requirement under rules of law other than
this Convention relating to the form or registration of the transfer of
any rights securing payment of the assigned receivable.
Chapter IV Section
I Article
11 1. The mutual rights
and obligations of the assignor and the assignee arising from their agreement
are determined by the terms and conditions set forth in that agreement,
including any rules or general conditions referred to therein. 2. The assignor and
the assignee are bound by any usage to which they have agreed and, unless
otherwise agreed, by any practices they have established between themselves. 3. In an international
assignment, the assignor and the assignee are considered, unless otherwise
agreed, implicitly to have made applicable to the assignment a usage that
in international trade is widely known to, and regularly observed by,
parties to the particular type of assignment or to the assignment of the
particular category of receivables. Article
12 1. Unless otherwise
agreed between the assignor and the assignee, the assignor represents
at the time of conclusion of the contract of assignment that: (a) The assignor has the
right to assign the receivable; (b) The assignor has not
previously assigned the receivable to another assignee; and (c) The debtor does not
and will not have any defences or rights of set‑off. 2. Unless otherwise
agreed between the assignor and the assignee, the assignor does not represent
that the debtor has, or will have, the ability to pay. Article
13 1. Unless otherwise
agreed between the assignor and the assignee, the assignor or the assignee
or both may send the debtor notification of the assignment and a payment
instruction, but after notification has been sent only the assignee may
send such an instruction. 2. Notification of the
assignment or a payment instruction sent in breach of any agreement referred
to in paragraph 1 of this article is not ineffective for the purposes
of article 17 by reason of such breach. However, nothing in this article
affects any obligation or liability of the party in breach of such an
agreement for any damages arising as a result of the breach. Article
14 1. As between the assignor
and the assignee, unless otherwise agreed and whether or not notification
of the assignment has been sent: (a) If payment in respect
of the assigned receivable is made to the assignee, the assignee is entitled
to retain the proceeds and goods returned in respect of the assigned receivable; (b) If payment in respect
of the assigned receivable is made to the assignor, the assignee is entitled
to payment of the proceeds and also to goods returned to the assignor
in respect of the assigned receivable; and (c) If payment in respect
of the assigned receivable is made to another person over whom the assignee
has priority, the assignee is entitled to payment of the proceeds and
also to goods returned to such person in respect of the assigned receivable. 2. The assignee may
not retain more than the value of its right in the receivable.
Section
II Article
15 1. Except as otherwise
provided in this Convention, an assignment does not, without the consent
of the debtor, affect the rights and obligations of the debtor, including
the payment terms contained in the original contract. 2. A payment instruction
may change the person, address or account to which the debtor is required
to make payment, but may not change: (a) The currency of payment
specified in the original contract; or (b) The State specified
in the original contract in which payment is to be made to a State other
than that in which the debtor is located. Article 16 1. Notification of the
assignment or a payment instruction is effective when received by the
debtor if it is in a language that is reasonably expected to inform the
debtor about its contents. It is sufficient if notification of the assignment
or a payment instruction is in the language of the original contract.
2. Notification of the
assignment or a payment instruction may relate to receivables arising
after notification. 3. Notification of a
subsequent assignment constitutes notification of all prior assignments. Article
17 1. Until the debtor
receives notification of the assignment, the debtor is entitled to be
discharged by paying in accordance with the original contract. 2. After the debtor
receives notification of the assignment, subject to paragraphs 3 to 8
of this article, the debtor is discharged only by paying the assignee
or, if otherwise instructed in the notification of the assignment or subsequently
by the assignee in a writing received by the debtor, in accordance with
such payment instruction. 3. If the debtor receives
more than one payment instruction relating to a single assignment of the
same receivable by the same assignor, the debtor is discharged by paying
in accordance with the last payment instruction received from the assignee
before payment. 4. If the debtor receives
notification of more than one assignment of the same receivable made by
the same assignor, the debtor is discharged by paying in accordance with
the first notification received. 5. If the debtor receives
notification of one or more subsequent assignments, the debtor is discharged
by paying in accordance with the notification of the last of such subsequent
assignments. 6. If the debtor receives
notification of the assignment of a part of or an undivided interest in
one or more receivables, the debtor is discharged by paying in accordance
with the notification or in accordance with this article as if the debtor
had not received the notification. If the debtor pays in accordance with
the notification, the debtor is discharged only to the extent of the part
or undivided interest paid. 7. If the debtor receives
notification of the assignment from the assignee, the debtor is entitled
to request the assignee to provide within a reasonable period of time
adequate proof that the assignment from the initial assignor to the initial
assignee and any intermediate assignment have been made and, unless the
assignee does so, the debtor is discharged by paying in accordance with
this article as if the notification from the assignee had not been received.
Adequate proof of an assignment includes but is not limited to any writing
emanating from the assignor and indicating that the assignment has taken
place. 8. This article does
not affect any other ground on which payment by the debtor to the person
entitled to payment, to a competent judicial or other authority, or to
a public deposit fund discharges the debtor. Article
18 1. In a claim by the
assignee against the debtor for payment of the assigned receivable, the
debtor may raise against the assignee all defences and rights of set-off
arising from the original contract, or any other contract that was part
of the same transaction, of which the debtor could avail itself as if
the assignment had not been made and such claim were made by the assignor.
2. The debtor may raise
against the assignee any other right of set-off, provided that it was
available to the debtor at the time notification of the assignment was
received by the debtor. 3. Notwithstanding paragraphs
1 and 2 of this article, defences and rights of set-off that the debtor
may raise pursuant to article 9 or 10 against the assignor for breach
of an agreement limiting in any way the assignor’s right to make the assignment
are not available to the debtor against the assignee. Article
19 1. The debtor may agree
with the assignor in a writing signed by the debtor not to raise against
the assignee the defences and rights of set-off that it could raise pursuant
to article 18. Such an agreement precludes the debtor from raising against
the assignee those defences and rights of set-off. 2. The debtor may not
waive defences: (a) Arising from fraudulent
acts on the part of the assignee; or (b) Based on the debtor’s
incapacity. 3. Such an agreement
may be modified only by an agreement in a writing signed by the debtor.
The effect of such a modification as against the assignee is determined
by article 20, paragraph 2. Article
20 1. An agreement concluded
before notification of the assignment between the assignor and the debtor
that affects the assignee’s rights is effective as against the assignee,
and the assignee acquires corresponding rights. 2. An agreement concluded
after notification of the assignment between the assignor and the debtor
that affects the assignee’s rights is ineffective as against the assignee
unless: (a) The assignee consents
to it; or (b) The receivable is
not fully earned by performance and either the modification is provided
for in the original contract or, in the context of the original contract,
a reasonable assignee would consent to the modification. 3. Paragraphs 1 and
2 of this article do not affect any right of the assignor or the assignee
arising from breach of an agreement between them. Article
21 Failure of the assignor to perform the original contract does
not entitle the debtor to recover from the assignee a sum paid by the
debtor to the assignor or the assignee. Section
III Article
22 With the exception of matters that are settled elsewhere in this
Convention and subject to articles 23 and 24, the law of the State in
which the assignor is located governs the priority of the right of an
assignee in the assigned receivable over the right of a competing claimant.
Article
23 1. The application of
a provision of the law of the State in which the assignor is located may
be refused only if the application of that provision is manifestly contrary
to the public policy of the forum State. 2. The rules of the
law of either the forum State or any other State that are mandatory irrespective
of the law otherwise applicable may not prevent the application of a provision
of the law of the State in which the assignor is located. 3. Notwithstanding paragraph
2 of this article, in an insolvency proceeding commenced in a State other
than the State in which the assignor is located, any preferential right
that arises, by operation of law, under the law of the forum State and
is given priority over the rights of an assignee in insolvency proceedings
under the law of that State may be given priority notwithstanding article
22. A State may deposit at any time a declaration identifying any such
preferential right. Article 24 1. If proceeds are received
by the assignee, the assignee is entitled to retain those proceeds to
the extent that the assignee’s right in the assigned receivable had priority
over the right of a competing claimant in the assigned receivable. 2. If proceeds are received
by the assignor, the right of the assignee in those proceeds has priority
over the right of a competing claimant
in those proceeds to the same extent as the assignee’s right had priority
over the right in the assigned receivable of that claimant if: (a) The assignor has received
the proceeds under instructions from the assignee to hold the proceeds
for the benefit of the assignee; and (b) The proceeds are held
by the assignor for the benefit of the assignee separately and are reasonably
identifiable from the assets of the assignor, such as in the case of a
separate deposit or securities account containing only proceeds consisting
of cash or securities. 3. Nothing in paragraph
2 of this article affects the priority of a person having against the
proceeds a right of set-off or a right created by agreement and not derived
from a right in the receivable. Article
25 An assignee entitled to priority may at any time subordinate
its priority unilaterally or by agreement in favour of any existing or
future assignees.
Chapter
V Article
26 The provisions of this chapter apply to matters that are: (a) Within the scope of
this Convention as provided in article 1, paragraph 4; and (b) Otherwise within the
scope of this Convention but not settled elsewhere in it. Article 27 1. A contract of assignment
concluded between persons who are located in the same State is formally
valid as between them if it satisfies the requirements of either the law
which governs it or the law of the State in which it is concluded. 2. A contract of assignment
concluded between persons who are located in different States is formally
valid as between them if it satisfies the requirements of either the law
which governs it or the law of one of those States. Article
28 1. The mutual rights
and obligations of the assignor and the assignee arising from their agreement
are governed by the law chosen by them. 2. In the absence of
a choice of law by the assignor and the assignee, their mutual rights
and obligations arising from their agreement are governed by the law of
the State with which the contract of assignment is most closely connected. Article
29 The law governing the original contract determines the effectiveness
of contractual limitations on assignment as between the assignee and the
debtor, the relationship between the assignee and the debtor, the conditions
under which the assignment can be invoked against the debtor and whether
the debtor’s obligations have been discharged. Article
30 1. The law of the State
in which the assignor is located governs the priority of the right of
an assignee in the assigned receivable over the right of a competing claimant.
2. The rules of the
law of either the forum State or any other State that are mandatory irrespective
of the law otherwise applicable may not prevent the application of a provision
of the law of the State in which the assignor is located. 3. Notwithstanding paragraph
2 of this article, in an insolvency proceeding commenced in a State other
than the State in which the assignor is located, any preferential right
that arises, by operation of law, under the law of the forum State and
is given priority over the rights of an assignee in insolvency proceedings
under the law of that State may be given
priority notwithstanding paragraph 1 of this article. Article
31 1. Nothing in articles
27 to 29 restricts the application of the rules of the law of the forum
State in a situation where they are mandatory irrespective of the law
otherwise applicable. 2. Nothing in articles
27 to 29 restricts the application of the mandatory rules of the law of
another State with which the matters settled in those articles have a
close connection if and insofar as, under the law of that other State,
those rules must be applied irrespective of the law otherwise applicable. Article
32 With regard to matters settled in this chapter, the application
of a provision of the law specified in this chapter may be refused only
if the application of that provision is manifestly contrary to the public
policy of the forum State.
Chapter
VI Article
33 The Secretary-General of the United Nations is the depositary
of this Convention. Article
34 1. This Convention is
open for signature by all States at the Headquarters of the United Nations
in New York until 31 December 2003. 2. This Convention is
subject to ratification, acceptance or approval by the signatory States. 3. This Convention is
open to accession by all States that are not signatory States as from
the date it is open for signature. 4. Instruments of ratification,
acceptance, approval and accession are to be deposited with the Secretary-General
of the United Nations. Article 35 1. If a State has two
or more territorial units in which different systems of law are applicable
in relation to the matters dealt with in this Convention, it may at any
time declare that this Convention is to extend to all its territorial
units or only one or more of them, and may at any time substitute another
declaration for its earlier declaration. 2. Such declarations
are to state expressly the territorial units to which this Convention
extends. 3. If, by virtue of
a declaration under this article, this Convention does not extend to all
territorial units of a State and the assignor or the debtor is located
in a territorial unit to which this Convention does not extend, this location
is considered not to be in a Contracting State. 4. If, by virtue of
a declaration under this article, this Convention does not extend to all
territorial units of a State and the law governing the original contract
is the law in force in a territorial unit to which this Convention does
not extend, the law governing the original contract is considered not
to be the law of a Contracting State. 5. If a State makes
no declaration under paragraph 1 of this article, the Convention is to
extend to all territorial units of that State. Article
36 If a person is located in a State which has two or more territorial
units, that person is located in the territorial unit in which it has
its place of business. If the assignor or the assignee has a place of
business in more than one territorial unit, the place of business is that
place where the central administration of the assignor or the assignee
is exercised. If the debtor has a place of business in more than one territorial
unit, the place of business is that which has the closest relationship
to the original contract. If a person does not have a place of business,
reference is to be made to the habitual residence of that person. A State
with two or more territorial units may specify by declaration at any time
other rules for determining the location of a person within that State.
Article
37 Any
reference in this Convention to the law of a State means, in the case
of a State which has two or more territorial units, the law in force in
the territorial unit. Such a State may specify by declaration at any time
other rules for determining the applicable law, including rules that render
applicable the law of another territorial unit of that State. Article 38 1. This Convention does
not prevail over any international agreement that has already been or
may be entered into and that specifically governs a transaction otherwise
governed by this Convention. 2. Notwithstanding paragraph
1 of this article, this Convention prevails over the Unidroit Convention
on International Factoring (“the Ottawa Convention”). To the extent that
this Convention does not apply to the rights and obligations of a debtor,
it does not preclude the application of the Ottawa Convention with respect
to the rights and obligations of that debtor. Article
39 A State may declare at any time that it will not be bound by
chapter V. Article
40 A State may declare at any time that it will not be bound or
the extent to which it will not be bound by articles 9 and 10 if the debtor
or any person granting a personal or property right securing payment of
the assigned receivable is located in that State at the time of conclusion
of the original contract and is a Government, central or local, any subdivision
thereof, or an entity constituted for a public purpose. If a State has
made such a declaration, articles 9 and 10 do not affect the rights and
obligations of that debtor or person. A State may list in a declaration
the types of entity that are the subject of a declaration. |