Secured Transactions Law in Asia: Principles, Perspectives and Reform

Description

This collection of essays offers a unique insight and overview of the secured transactions law in many of the most important countries in Asia, as well as reflections on the need for, benefits of and challenges for reform in this area of the law. The book provides a mixture of general reflections on the history, successes and challenges of secured transaction law reform, and critical discussion of the law in a number of Asian countries. In some of the countries, the law has already been reformed, or reform is under way, and here the reforms are considered critically, with recommendations for future work. In other countries, the law is not yet reformed, and the existing law is analysed so as to determine what reform is desirable, and whether it is likely to take place. First, this book will enable those engaging with the law in Asia to understand better the contours of the law in both civil and common law jurisdictions. Second, it provides analytical insights into why secured transactions law reform happens or does not happen, the different methods by which reform takes place, the benefits of reform and the difficulties that need to be overcome for successful reform. Third, it discusses the need for reform where none has yet taken place and critically assesses the reforms which have already been enacted or are being considered. In addition to providing a forum for discussion in relation to the countries in question, this book is also a timely contribution to the wider debate on secured transactions law reform which is taking place around the world. Preface Table of Contents List of Contributors List of Abbreviations Table of Cases Table of Legislation 1. Introduction I. General Introduction II. Plan of Book III. Secured Transactions Law Reform IV. Terminology and Concepts V. Asia: Variations between Countries VI. The Contribution of the Book PART I.
GENERAL 2. Lost in Transplantation? Modern Principles of Secured Transactions Law as Legal Transplants I. Introduction and Background II. The Modern Principles of Secured Transactions Law III. Legal Transplantation: Alan Watson's Legal Transplants and its Relevance for the Modern Principles IV. Transplantation (or not) of the Modern Principles in Context V. Benefits of Modern Principles: Beyond Credit Enhancement VI. Conclusion 3. Personal Property Securities Law Reform in Developed Jurisdictions I. Introduction II. Federal System Challenges III. Oversight IV. Register Upgrades V. Conclusion 4. Secured Transactions Law Reform in Asia and Access to Finance: What can the UNCITRAL Model Law on Secured Transactions Offer? I. Introduction II. Key Objectives and Fundamental Policies of the UNCITRAL Model Law III. Scope and General Provisions of the Model Law IV. Creation of Security Interests (Attachment) V. Third Party Effectiveness of Security Interests (Perfection) VI. The Registration System VII. Priority of Security Interests VIII. Enforcement of Security Interests IX. Conflict of Laws in Secured Transactions X. Conclusion 5. Secured Transactions Reform in East Asia: Progress and Challenges I. Introduction II. Financial Inclusion, Stability and Access III. Implementation Challenges IV. The Role of Law Schools V. Conclusion PART II.
CIVIL LAW JURISDICTIONS 6. Secured Transactions Law Reform in Civil Law Jurisdictions: Challenging Tradition, Facing Reality, and Embracing Modernity I. Mapping Secured Transactions Reform in Civil Law Jurisdictions: Challenges and Opportunities II. The Merits of an International-Principle-Driven Reform for Civil Law Jurisdictions III. Facing Conceptual Challenges: Policy Implications of a Unitary Approach and Implementation Alternatives IV. Institutional Challenges: Opportunities for Civil Law Jurisdictions to Decode Institutions and Recode in Digital V. Fortifying Enforcement of Security Rights – A Matter of Balance VI. Conclusions and Proposals 7. The Law of Secured Transactions in China: Comparison and Futu I. Introduction II. The Period from the Reform and Opening Up to 2007: The Formation of the Legal System of the Law on Secured Transactions III. The Reform of the Law on Secured Transactions in the 2007 Real Property Law IV. Future Reform and Chinese Civil Law Codification V. Conclusion 8. Secured Transactions Law Reform in Indonesia: Fiducia, at a Crossroads I. Introduction II. Security and Priority Rights in Indonesia III. Fiducia Security as a Non-possessory Security Right Over Movables IV. Conclusion 9. Navigating the Patchwork of Secured Transactions Rules in Japan: Towards a Framework Conducive to Asset Based Lending I. Introduction II. Economic Overview and Financing Environment III. Overview of Security Interests IV. Creation V. Perfection and Priority VI. Identification Issues and Over-collateralisation VII. Enforcement VIII. Asset Based Lending (ABL) IX. Conclusion 10. Banking the Unbanked: An Examination of the Personal Property Security Act of the Philippines I. Introduction II. The Legislative Background to the PPSA III. The PPSA IV. Early Assessment of the PPSA V. Steps Forward 11. Banking the Unbanked: An Examination of the Personal Property Security Act of the Philippines I. Overview on Korea's Secured Transactions Law II. Pledge and Security by Means of Transfer (Yangdodambo) III. Security Rights Prescribed in the Act IV. Prospect for Future Reform in Korea 12. Law Reform of the Secured Transactions Regime in Taiwan: Modernisation, Controversies, and Prospects I. Introduction II. Current Law on Secured Transactions in Personal Property III. Policy and Focus of the Reform on Secured Transactions: Movable Collateral Regime IV. Regulatory Reform and Research Reports in the Past Decades V. Issues and Recommendations VI. Conclusion 13. Implementation of International Standards on Secured Transactions into the Thai Legal System: Possibilities and Proposals I. Introduction II. An Overview of Thai Law on Secured Credit III. Non-compliance of Thai Law with International Standards IV. Rationales for Non-adoption of International Standards V. Compatibility of International Standards with the Thai Legal System VI. Proposals for Implementation of a Functional Approach in the Thai Legal System VII. Assessment of the Feasibility of Further Adoption of the Modern Principles in Thailand VIII. Lessons Learned IX. Conclusion 14. Secured Transactions Reform in Vietnam: Prominent Achievements, Experiences, and Lessons Learnt I. Introduction and Background II. Creating and Improving an Enabling Regulatory Environment for Secured Transactions III. Building a World Class Web-Based Registration System for Secured Transactions IV. Building Capacity for the Banking Sector and Related Stakeholders V. Conclusion PART III.
COMMON LAW JURISDICTIONS 15. Secured Transactions Law Reform in Common Law Jurisdictions (Brunei Darussalam as an Example) I. Introduction II. History of Secured Transactions Law in Brunei III. Modern Principles of Secured Transactions Law IV. Comparison between the Modern Principles and the Common Law V. Other Challenges VI. Conclusion 16. Bangladesh Secured Transactions Framework: Moving Towards a Reform I. Introduction II. Economic Overview III. Current Secured Transactions Framework IV. Why PPSA was used as a Model V. Structure of the Draft Act VI. Deviations from the PPSA VII. Complementary Reforms VIII. Conclusion 17. Secured Transactions Law in India: Suggestions for Reforms I. Introduction II. Indian Law on the Creation and Perfection of Security Rights in Property III. The Salient Features of the Indian Law on Secured Transactions IV. The SARFAESI Act V. Compliance of Indian Law with Modern Principles of Secured Transactions Law VI. Factoring Regulation Act, 2011 VII. Suggestions for Reform in the Indian Law VIII. The Impact of the Insolvency and Bankruptcy Code 2016 on Secured Transactions Law 18. Pakistan’s Reform of Secured Transactions Law: Challenges and the Road Ahead I. Introduction II. Economic Overview III. Pre-reform Legal Regime IV. The ST Act V. Final Remarks 19. Secured Transactions Law in Singapore: Living with Untidiness I. Introduction II. Security Interests III. Quasi-security Devices IV. Priorities V. Enforcement VI. Law Reform Studies VII. Assessment and Recommendation VIII. The Challenges of Reforming Secured Transactions Law in Singapore IX. The Way Forward X. Conclusion 20. Conclusion I. Introduction II. Attitudes to Reform III. Method of Reform IV. Substance of the Law V. Conclusion Index