La legge regolatrice degli effetti reali del trasferimento di strumenti finanziari tramite intermediari

The essay analyses the function of the traditional conflict of laws rules in matter of property aspects of the securities transferring when the securities lacks of physical support. To this end, the paper focuses on some national and European Union legislative acts which tried to adequate the criterion of the situs rei to the features of securities transferring carried out by way of accounting operations. Such acts emphasize the place where the account is located. In particular, the account to be taken into consideration along the intermediation chain is that on which the right (concerning the securities) is recorded. Inasmuch as this account is managed by an intermediary, such an intermediary is considered as the «relevant intermediary», so that the law applicable to the rights on the securities is that of the «place of relevant intermediary approach» (PRIMA). The essay points out the problem deriving from the application of such a criterion: problems which induced the Hague Conference on Private international Law to adopt an ad hoc Convention. Hence, the analysis moves on the contents of such Convention, especially as to the choice to determine the law applicable by means of an electio iuris and, in absence, of objective criteria. After having described the real function of the will of the parties in the Convention, the paper sets out the critical aspect of upholding an electio iuris in this matter, by taking into account the third parties’position concurring with that of the person-client of the intermediary. It is a problem of priority which calls for establishing what position should prevail on the other and the criteria provided by the Hague Convention do not seem to face at best with it.