The UNCITRAL Model Law on Secured Transactions:

Transcript:The UNCITRAL Model Law on Secured Transactions::
The UNCITRAL Model Law on Secured Transactions: preparation and implementation issues Spyridon V. Bazinas Consultant and Lecturer Outline Preparation issues Desirability and feasibility Complexity of the matter Coordination Implementation issues Complexity and novelty of the STML Insufficient resources and coordination Other issues: unification and harmonization of international trade law in times of change 1.1. Preparation issues: desirability and feasibility Decisions of the Commission in 2012 and 2013 Desirability: the need to provide urgently needed guidance to States as to how to implement the recommendations of the Secured Transactions Guide, the IP Supplement and the Registry Guide Feasibility: the model law should be based on the recommendations of the Secured Transactions Guide and be consistent with all texts prepared by UNCITRAL on secured transactions The scope of the draft Model Law should include all economically valuable assets To avoid fragmentation of secured transactions law, which creates uncertainty, overlaps and conflicts as one asset may be proceeds of another asset Retain the topic of Sis in non-intermediated securities 1.2. Preparation issues: complexity of the matter UNCITRAL adopted the STML in 2016, after several years of work (1975-1980 and 1992-2016): this indicates the extremely difficult preparation issues that its drafters had to deal with Comprehensive scope-functional approach Relative effectiveness of an SI (which abandons the erga omnes effects of property rights in civil law systems) Effectiveness of SIs in receivables created in violation of an agreement (contravening the principle of party autonomy) Registration: notice registration, asset based, for third-party effectiveness and priority Institutional issues: registry system Efficient enforcement, including out-of-court enforcement Law applicable to creation, third-party effectiveness, priority and enforcement Coordination with property law (SIs in receivables, NIs and NDs, bank accounts, non-intermediated securities, IP rights) Coordination with insolvency law (the UNCITRAL Guides on ST and Insolvency Law) 1.3. Preparation issues: coordination Coordination with property law IP rights Non-intermediated securities Main difficulty: establish a common terminology and approach to basic issues Coordination with texts of Unidroit and the Hague Conference: Joint Publication (2012) Purpose: to ensure that a State can implement all these texts and have a comprehensive and consistent legal framework Coordination with texts of the WB A draft revised Creditor-Debtor Standard, referring also to the recommendations of the Secured Transactions Guide, was jointly prepared by the World Bank (Legal Vice-Presidency) and the UNCITRAL Secretariat The fact that the STML was finally adopted by UNCITRAL suggests that all those issues were addressed