DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 58

Possession and rights in rem

1. The possession, ownership and other rights in rem in movable and immovable property, as well as well as their publication, shall be governed by the law of the State where the property is located.

2. The same law shall govern the acquisition, alteration and loss of possession, ownership and other rights in rem, except in respect of matters of succession and in cases in which the attribution of a right in rem depends on a family relationship or a contract. It shall be understood that the place where the property is located shall be that where the property subject to the right is located at the time when the act giving rise to these legal effects occurs.

358. The present provisions have two clearly separate paragraphs. The first establishes the conflict rule and its basic scope of application. The second paragraph establishes that the scope of application of the regulation comprises all other matters that must be considered to belong to rights in rem, whilst providing solutions for defining the conflict rules governing other related matters, such as contractual, inheritance or family445 matters. In addition, the second paragraph provides a specific rule related to the connecting point in order to provide a response to the problem of the so-called “change of connecting factor”, which is particularly important in relation to the rights in rem in movable property.

359. In the comparative view, the adoption of the lex rei sitae rule as the conflict rule in the area of rights in rem in tangible property, both immovable as well as movable, is almost universal. In the case of immovable property, this conflict rule corresponds to the existence of a particular interest of the State related to the concept of territorial sovereignty of the State in relation with its resources and, in particular, its immovable property. In addition, it favours the forum ius correlation in this area, in which the provision of exclusive competences at the jurisdictional level is typical. The application of the same rule to movable properties benefits from economic efficiency criteria and is particularly important in relation with the performance of its organising role of the market.

In accordance with paragraph one, the lex rei sitae rule governs what rights in rem may be created in a property, as well as their effects vis-à-vis third parties, including their publication, which is typically a condition of effectiveness of the right in rem vis-à-vis third parties.

While the lex rei sitae governs the acquisition, alteration and loss of the various rights in rem, the second paragraph specifies that this is not the case when such circumstances result from a succession - insofar as it must be determined in accordance with the rules on the law applicable to successions - or in the cases in which the attribution of a right in rem will depend on a family relationship or a contract, or situations which will be regulated by the conflict rules applicable in those matters.

360. The final part of the second paragraph incorporates a regulation on clarification of the connecting factor of the place where the property is located for addressing the cases of change of connecting factor, which is particularly important in relation with the regime of the rights in rem in movable property. It will be understood that the place where the property is located is that in which the property subject to the right is located at the time when the act giving rise to these legal effects occurs. This criterion favours the ability to predict of anyone who participates in a transaction and corresponds to the organising function of the market of the lex rei sitae connection, facilitating a security of international relations.


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