Continuation of security rights in movable assets in conflict of laws – Austrian approach reconsidered

Abstract

AbstractIn decision no. 3 Ob 249/18sOGH [2019] 3 Ob 249/18s. the Austrian Supreme Court (Oberster Gerichtshof, OGH) acknowledged a security right in a movable asset acquired abroad, although publicity requirements under Austrian law have not been observed before and after the movable asset crossed the Austrian border. Consequently, only the law of the country in which the movable asset is located upon the completion of the acquisition or loss shall be applicable to the acquisition or loss of a right in rem. Whether the transaction has been completed or not, is determined by the lex causae. No subsequent change in the applicable law occurs in relation to this question.The decision is analysed in this paper in the context of the former jurisprudence of the Austrian Supreme Court, which has been overturned by the present decision, and the positions published to date in legal literature. In addition, this paper provides an overview including aspects relating to EU law, the debate regarding overriding mandatory rules and fraus legis.