International and Comparative Secured Transactions Law: Essays in honour of Roderick A Macdonald

Description

The law of secured transactions has seen dramatic changes in the last decade. International organisations, particularly the United Nations Commission on International Trade Law (UNCITRAL), have been working towards the creation of international legal standards aimed at the modernisation and harmonisation of secured financing laws (eg, the United Nations Convention on the Assignment of Receivables in International Trade, the UNCITRAL Legislative Guide on Secured Transactions and its Intellectual Property Supplement, the UNCITRAL Guide on the Implementation of a Security Rights Registry and the UNCITRAL Model Law on Secured Transactions). The overall theme of this book is international (or cross-border) secured transactions law. It assembles contributions from some of the most authoritative academic voices on secured financing law. This publication will be of interest to those involved in secured transactions around the world, including policy-makers, practitioners, judges, arbitrators and academics. Preface Table of Contents List of Contributors Table of Legislation Introduction 1 Secured Credit Legislation: Functionalism or Transactional Co-Existence I. Introduction II. What is the Position in England? III. The Nature and Limits of Functionalism IV. Models of Transactional Co-Existence 2 ‘Functional Formalism’ in the Treatment of Leases under Secured Transactions Law: Comparative Lessons from the Canadian Experience I. Introduction II. The Economic Substance Approach to the Characterisation of Leases under the PPSAs and the UNCITRAL Model Law III. Extension of the PPSAs to Long-term ‘True’ Leases IV. The Functionalist Underpinnings of the Formal Characterisation of Leases under the Civil Code of Quebec V. Characterisation of Leases outside Secured Transactions Law VI. Conclusion 3 Reflections on Misgivings about a Model Law I. Rod’s Misgivings II. My Misgivings III. Assessment of the UNCITRAL Model Law in Light of Our Misgivings IV. A Final Appreciation and Concern 4 The UNCITRAL Model Law on Secured Transactions I. Introduction II. Key Objectives and Fundamental Policies III. Scope and General Provisions IV. Creation of a Security Interest V. Third-party Effectiveness of a Security Interest VI. The Registry System VII. Priority of a Security Interest VIII. Rights and Obligations of the Parties and Third-party Obligors IX. Enforcement of a Security Interest X. Law Applicable to Security Interests XI. Conclusions 5 Non-assignment Clauses and their Treatment under UNCITRAL’s Secured Transactions Law Instruments I. Introduction II. What are Anti-assignment Clauses and Why Are They Used in Contracts? III. The Legal Effect of Anti-assignment Clauses IV. Why is it Necessary to Regulate Prohibitions on the Assignment of Receivables? V. UNCITRAL’s Approach to Anti-assignment Clauses VI. Conclusions 6 Dealing with Concepts of Property in the UNCITRAL Legislative Guide on Secured Transactions and UNCITRAL Model Law on Secured Transactions (2016) I. Introduction II. Rights to Claims that Support Encumbered Assets III. Rights of Persons with Contractual Rights to Encumbered Assets IV. Rights of a Licensee of Intellectual Property V. Conclusion 7 Current Issues in Cross-Border Asset-Based Lending: Lessons from the Field on the Need for Secured Transactions Reform Author’s Note: Remembering Rod Macdonald I. Introduction II. The Growing Cross-border Financing Needs of Middle-market Companies III. Asset-based Lending IV. Current Issues in Cross-border Asset-based Lending V. Conclusion 8 The Rights and Obligations of the Parties to the Security Agreement According to the UNCITRAL Model Law on Secured Transactions I. Introduction II. General Remarks III. The Parties Concerned IV. The Sources of the Reciprocal Rights and Obligations of the Parties (Article 52) V. Obligation to Preserve the Encumbered Asset (Article 53) VI. Obligation of the Secured Creditor to Return the Encumbered Asset (Article 54) VII. The Secured Creditor’s Right to Use and Inspect the Encumbered Asset (Article 55) VIII. Right of the Grantor to Obtain Information (Article 56) IX. Conclusion 9 Sûretés Mobilières et Stocks : ou l’Art et la Manière de Résoudre la Quadrature du Cercle I. L’Art: Comment Réconcilier l’Inconciliable II. La Manière: le Traitement Légistique du Gage des Stocks 10 Some Thoughts (and Facts) about the Process of Secured Transactions Law Reform, with Special Emphasis on Registration, the Key to Achievement of Reform’s Goals I. Introduction II. Key Features of a Modern Efficient Registry III. Reform Approaches: Comprehensive or Piecemeal IV. The Quixotic Search for Brevity V. Allocation of Functions VI. Interrelationship between Policy Choices, the Statutory Rules Governing the Registration System and the Registry Design VII. The Crucial (but Limited) Functions of a Secured Transactions Registry VIII. Omissions from and Gaps in the UNCITRAL Model Law IX. Registry Fees X. The Need for Education XI. Conclusion 11 Conflict-of-Laws Rules on Security Rights in Non-Intermediaries Securities I. Concepts and Terminology II. Role and Scope of Conflict Rules and Policy Considerations III. Creation, Effectiveness against Third Parties and Priority IV. Effectiveness against the Issuer and Enforcement V. The UNCITRAL Rules 12 Comparative Approaches to the Enforcement of Secured Credit in Insolvency II. The Enforcement of Secured Credit in Insolvency Proceedings Generally III. The Treatment of Secured Credit in Rehabilitation Proceedings IV. Conclusion 13 Comparative Study on Indian Secured Transactions Law and the UNCITRAL Legislative Guide on Secured Transactions I. Introduction II. Historical Background of New Secured Transactions Law in India III. Comparative Analysis IV. Modifications Required in Indian Secured Transactions Law to Conform with the Legislative Guide V. Conclusion VI. Recent Reforms in India—an Addendum 14 Security Interests over Intellectual Property Rights in Italy: Critical Analysis and Reform Proposals I. Introduction II. Legal Framework for Taking Security over Intellectual Property Rights III. Taking Security over Intellectual Property Rights IV. Critical Analysis of the Italian legal Regime for the Taking of Security over Intellectual Property Rights V. Legal Reform 15 Reverse Engineering the Law: Reforming Secured Transactions Law in Italy I. Introduction II. Secured Transactions Law Reforms: Common Roots, Different Routes III. From Legal Functionalism to Reverse Engineering IV. From Reverse Engineering to Re-Engineering: Implementing the UNCITRAL Registry System in the Italian Legal System V. Conclusion Index