Статья 23. 1. Настоящая Конвенция подлежит хранению Правительством Канады.
2. Правительство Канады должно:
a)
информировать все государства, которые
подписали данную Конвенцию или
присоединились к ней, и президента
Международного института по унификации
частного права (ЮНИДРУА) о:
i) каждом
новом подписании или представлении
документа о ратификации, принятии,
одобрении или присоединении и их датах;
ii) каждом заявлении, сделанном в
соответствии со статьями 16, 17 и 18;
iii)
отзыве любого заявления, сделанного в
соответствии со ст. 19 (4);
iv) дате
вступления в силу настоящей Конвенции;
v) представлении документа о денонсации
настоящей Конвенции, дате этого
представления и дате ее вступления в
силу;
b) передать надлежаще заверенные
копии настоящей Конвенции всем
государствам, которые ее подписали, всем
государствам, которые присоединились к
Конвенции, и президенту Международного
института по унификации частного права
(ЮНИДРУА).
Настоящая Конвенция
удостоверена и подписана официальными
представителями соответствующих
правительств, имеющих на то необходимые
полномочия.
Совершено в Оттаве, двадцать
восьмого мая, одна тысяча девятьсот
восемьдесят восьмого года, в едином
экземпляре, английский и французский
тексты которого имеют одинаковую
силу.
(Подписи)
UNIDROIT CONVENTION
ON
INTERNATIONAL FACTORING
(Ottawa, 28.V.1988)
The States Parties to this
Convention,
Conscious of the fact that international factoring has a
significant role to play in the development of international trade,
Recognising therefore the importance of adopting uniform rules to provide a
legal framework that will facilitate international factoring, while maintaining
a fair balance of interests between the different parties involved in factoring
transactions,
Have agreed as follows:
Chapter I - SPHERE OF
APPLICATION AND GENERAL PROVISIONS
Article 1
1. - This Convention
governs factoring contracts and assignments of receivables as described in this
Chapter.
2. - For the purposes of this Convention, "factoring contract"
means a contract concluded between one party (the supplier) and another party
(the factor) pursuant to which:
(a) the supplier may or will assign to
the factor receivables arising from contracts of sale of goods made between the
supplier and its customers (debtors) other than those for the sale of goods
bought primarily for their personal, family or household use;
(b) the
factor is to perform at least two of the following functions:
- finance
for the supplier, including loans and advance payments;
- maintenance of
accounts (ledgering) relating to the receivables;
- collection of
receivables;
- protection against default in payment by debtors;
(c) notice of the assignment of the receivables is to be given to debtors.
3. - In this Convention references to "goods" and "sale of goods" shall include
services and the supply of services.
4. - For the purposes of this
Convention:
(a) a notice in writing need not be signed but must identify
the person by whom or in whose name it is given;
(b) "notice in writing"
includes, but is not limited to, telegrams, telex and any other
telecommunication capable of being reproduced in tangible form;
(c) a
notice in writing is given when it is received by the addressee.
Article
2
1. - This Convention applies whenever the receivables assigned pursuant to
a factoring contract arise from a contract of sale of goods between a supplier
and a debtor whose places of business are in different States and:
(a)
those States and the State in which the factor has its place of business are
Contracting States; or
(b) both the contract of sale of goods and the
factoring contract are governed by the law of a Contracting State.
2. - A
reference in this Convention to a party"s place of business shall, if it has
more than one place of business, mean the place of business which has the
closest relationship to the relevant contract and its performance, having regard
to the circumstances known to or contemplated by the parties at any time before
or at the conclusion of that contract.
Article 3
1. - The application of
this Convention may be excluded:
(a) by the parties to the factoring
contract; or
(b) by the parties to the contract of sale of goods, as
regards receivables arising at or after the time when the factor has been given
notice in writing of such exclusion.
2. - Where the application of this
Convention is excluded in accordance with the previous paragraph, such exclusion
may be made only as regards the Convention as a whole.
Article 4
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 which 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 II - RIGHTS AND DUTIES OF THE
PARTIES
Article 5
As between the parties to the factoring contract:
(a) a provision in the factoring contract for the assignment of existing or
future receivables shall not be rendered invalid by the fact that the contract
does not specify them individually, if at the time of conclusion of the contract
or when they come into existence they can be identified to the contract;
(b) a provision in the factoring contract by which future receivables are
assigned operates to transfer the receivables to the factor when they come into
existence without the need for any new act of transfer.
Article 6
1. -
The assignment of a receivable by the supplier to the factor shall be effective
notwithstanding any agreement between the supplier and the debtor prohibiting
such assignment.
2. - However, such assignment shall not be effective
against the debtor when, at the time of conclusion of the contract of sale of
goods, it has its place of business in a Contracting State which has made a
declaration under Article 18 of this Convention.
3. - Nothing in
paragraph 1 shall affect any obligation of good faith owed by the supplier to
the debtor or any liability of the supplier to the debtor in respect of an
assignment made in breach of the terms of the contract of sale of
goods.
Article 7
A factoring contract may validly provide as between the
parties thereto for the transfer, with or without a new act of transfer, of all
or any of the supplier"s rights deriving from the contract of sale of goods,
including the benefit of any provision in the contract of sale of goods
reserving to the supplier title to the goods or creating any security
interest.
Article 8
1. - The debtor is under a duty to pay the factor
if, and only if, the debtor does not have knowledge of any other person"s
superior right to payment and notice in writing of the assignment:
(a) is
given to the debtor by the supplier or by the factor with the supplier"s
authority;
(b) reasonably identifies the receivables which have been
assigned and the factor to whom or for whose account the debtor is required to
make payment; and
(c) relates to receivables arising under a contract of
sale of goods made at or before the time the notice is given.
2. -
Irrespective of any other ground on which payment by the debtor to the factor
discharges the debtor from liability, payment shall be effective for this
purpose if made in accordance with the previous paragraph.
Article 9
1.
- In a claim by the factor against the debtor for payment of a receivable
arising under a contract of sale of goods the debtor may set up against the
factor all defences arising under that contract of which the debtor could have
availed itself if such claim had been made by the supplier.
2. - The
debtor may also assert against the factor any right of set-off in respect of
claims existing against the supplier in whose favour the receivable arose and
available to the debtor at the time a notice in writing of assignment conforming
to Article 8(1) was given to the debtor.
Article 10
1. - Without
prejudice to the debtor"s rights under Article 9, non-performance or defective
or late performance of the contract of sale of goods shall not by itself entitle
the debtor to recover a sum paid by the debtor to the factor if the debtor has a
right to recover that sum from the supplier.
2. - The debtor who has such
a right to recover from the supplier a sum paid to the factor in respect of a
receivable shall nevertheless be entitled to recover that sum from the factor to
the extent that:
(a) the factor has not discharged an obligation to make
payment to the supplier in respect of that receivable; or
(b) the factor
made such payment at a time when it knew of the supplier"s non-performance or
defective or late performance as regards the goods to which the debtor"s payment
relates.
Chapter III - SUBSEQUENT ASSIGNMENTS
Article 11
1. - Where
a receivable is assigned by a supplier to a factor pursuant to a factoring
contract governed by this Convention:
(a) the rules set out in Articles 5
to 10 shall, subject to sub-paragraph (b) of this paragraph, apply to any
subsequent assignment of the receivable by the factor or by a subsequent
assignee;
(b) the provisions of Articles 8 to 10 shall apply as if the
subsequent assignee were the factor.
2. - For the purposes of this
Convention, notice to the debtor of the subsequent assignment also constitutes
notice of the assignment to the factor.
Article 12
This Convention shall
not apply to a subsequent assignment which is prohibited by the terms of the
factoring contract.
Chapter IV - FINAL PROVISIONS
Article 13
1. -
This Convention is open for signature at the concluding meeting of the
Diplomatic Conference for the Adoption of the Draft Unidroit Conventions on
International Factoring and International Financial Leasing and will remain open
for signature by all States at Ottawa until 31 December 1990.
2. - This
Convention is subject to ratification, acceptance or approval by States which
have signed it.
3. - This Convention is open for accession by all States
which are not signatory States as from the date it is open for signature.
4. - Ratification, acceptance, approval or accession is effected by the deposit
of a formal instrument to that effect with the depositary.
Article 14
1.
- This Convention enters into force on the first day of the month following the
expiration of six months after the date of deposit of the third instrument of
ratification, acceptance, approval or accession.
2. - For each State that
ratifies, accepts, approves, or accedes to this Convention after the deposit of
the third instrument of ratification, acceptance, approval or accession, this
Convention enters into force in respect of that State on the first day of the
month following the expiration of six months after the date of the deposit of
its instrument of ratification, acceptance, approval or accession.
Article
15
This Convention does not prevail over any treaty which has already been
or may be entered into.
Article 16
1. - If a Contracting 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 the time of
signature, ratification, acceptance, approval or accession, declare that this
Convention is to extend to all its territorial units or only to one or more of
them, and may substitute its declaration by another declaration at any
time.
2. - These declarations are to be notified to the depositary and
are to state expressly the territorial units to which the Convention
extends.
3. - If, by virtue of a declaration under this article, this
Convention extends to one or more but not all of the territorial units of a
Contracting State, and if the place of business of a party is located in that
State, this place of business, for the purposes of this Convention, is
considered not to be in a Contracting State, unless it is in a territorial unit
to which the Convention extends.
4. - If a Contracting State makes no
declaration under paragraph 1, the Convention is to extend to all territorial
units of that State.
Article 17
1. - Two or more Contracting States
which have the same or closely related legal rules on matters governed by this
Convention may at any time declare that the Convention is not to apply where the
supplier, the factor and the debtor have their places of business in those
States. Such declarations may be made jointly or by reciprocal unilateral
declarations.
2. - A Contracting State which has the same or closely
related legal rules on matters governed by this Convention as one or more
non-Contracting States may at any time declare that the Convention is not to
apply where the supplier, the factor and the debtor have their places of
business in those States.
3. - If a State which is the object of a
declaration under the previous paragraph subsequently becomes a Contracting
State, the declaration made will, as from the date on which the Convention
enters into force in respect of the new Contracting State, have the effect of a
declaration made under paragraph 1, provided that the new Contracting State
joins in such declaration or makes a reciprocal unilateral
declaration.
Article 18
A Contracting State may at any time make a
declaration in accordance with Article 6(2) that an assignment under Article
6(1) shall not be effective against the debtor when, at the time of conclusion
of the contract of sale of goods, it has its place of business in that
State.
Article 19
1. - Declarations made under this Convention at the
time of signature are subject to confirmation upon ratification, acceptance or
approval.
2. - Declarations and confirmations of declarations are to be
in writing and to be formally notified to the depositary.
3. - A
declaration takes effect simultaneously with the entry into force of this
Convention in respect of the State concerned. However, a declaration of which
the depositary receives formal notification after such entry into force takes
effect on the first day of the month following the expiration of six months
after the date of its receipt by the depositary. Reciprocal unilateral
declarations under Article 17 take effect on the first day of the