Secured Credit and the Harmonisation of Law

Secured Credit and the Harmonisation of Law

The UNCITRAL Experience

Corporations, Globalisation and the Law series

Gerard McCormack

This is a discerning analysis of international harmonisation efforts for secured credit law and examines the role of globalisation and finance capital in shaping such efforts. Gerard McCormack reveals how an ‘efficient’ law is often seen to increase the availability, and lower the cost, of credit, thereby contributing to international development. He considers whether the most comprehensive international standard – the United Nations Commission on International Trade Law (UNCITRAL) Legislative Guide (2008) – is actually suitable for adoption at the national level. In particular, he examines the hypothesis that American law and lawyers have shaped the content of the Guide to the extent that it is not suitable for translation into other laws.

Chapter 6: The UNCITRAL Secured Transactions Guide

Gerard McCormack

Subjects: law - academic, commercial law, company and insolvency law, corporate law and governance, finance and banking law, international commercial law


The Secured Transactions Guide went through the UN General Assembly approval process in December 2008,1 though the editorial revisions were only completed in 2009 and an intellectual property annex was ‘prereleased’ on 15 July 2010. In this chapter it is intended to provide a critical evaluation of the main provisions of the Guide, looking at the Guide in the context of other international and national secured transactions instruments including the EBRD Model Law and Article 9. The discussion is divided into six parts. The first part looks at the overall philosophy of the Guide and how this is exemplified in particular provisions, including the scope of assets that may be collateralised. It also notes, in this connection, important limitations on the scope of the Guide. The second part looks at all-assets security and possible carve-outs for unsecured creditors. The third part considers the creation and third party effectiveness of security rights. The fourth part addresses the treatment of quasi-securities. The fifth part considers the principles for working out priorities between competing securities, including the extent of the super-priority status afforded to quasi-securities. This is followed by a conclusion which attempts to summarise some of the central themes in the discussion. THE SECURED TRANSACTIONS GUIDE – OVERALL PHILOSOPHY The Secured Transactions Guide is a detailed document and the details were increased in 2010 with the addition of a separate annex that applies to security over intellectual property rights.2 Subject to certain limitations, the Guide is designed to be comprehensive in its...

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