Assignment of receivables and legal standing: are there expansive effects of arbitration?
The assignment of receivables is a deal, which is concluded between a creditor or assignor and a third party or assignee where the former transfers to the latter the ownership of a certain receivable, without the need of the debtor’s intervention. However, once the debtor knows of the assignment, only the payment to the assignee frees the debtor from their obligation.
The assigned receivable to the assignee may be derived from any type of relation between the assigning creditor and the debtor, the most common in the trade that said receivable results from a sales contract or from delivery of services.
The question, which may arise in the procedural practice, is what happens if the contract from which the assigned receivable derives contains an arbitration clause. Does the submission to arbitration bind the third party assignee of the receivable who wishes to commence a proceeding against the debtor? That is to say, does the arbitration clause have expansive effects as to the assignee’s exercise of a claim against the debtor? Or is the assignee entitled to sue the debtor before ordinary courts, even though the contract from which the receivable derives contains an arbitration clause?
While in the past contradictory stands existed, founded primarily in comparative law, at the present time the as well as the doctrinal answer to the aforementioned question seems clear and consistent: the arbitration clause is only effective against the signatory parties (in this case the assignor of the receivable and the debtor), and therefore cannot extent its binding effect to third parties that were not involved (in this case, the assignee). In this regard, we cite the judgment of the Provisional Court of Barcelona of 1 February 2003 or the judgement of the Supreme Court (First Chamber) of 3 November 1998.
Similarly, the most authoritative doctrine on the matter as well as Yánez Velasco (systematic comments on the Law 60/2003 of 23 December 2003, on Arbitration, Valencia) confirm that It must be clear that the arbitrator acquires legal standing because they have been assigned to him ad causam by the parties that have signed the agreement. Consequently, this arbitrator in arbitration proceedings cannot summon a third party that has not agreed to the commitment of submission to arbitration. In any case, should the arbitrator call upon them, the third party must appear voluntarily.
In conclusion, the assignee of the receivable may go to the ordinary courts in order to defend their rights against the debtor.
Mariano Jiménez
Mariscal Abogados, Spanish lawyers in Madrid, Spain
Member of Eurojuris España, international network of law firms
