Edited by Mads Andenas and Camilla Baasch Andersen
Chapter 19: Convergence, Path-dependency and Credit Securities: The Case Against Europe-wide Harmonisation
19. Convergence, path-dependency and credit securities: the case against Europe-wide harmonisation* Gerard McCormack** Within Europe in recent years there have been two pressure points for reform of the law governing secured transactions.1 The first pressure point arises out of the desire by some to create a European Civil Code, a common law for Europe as you will, and this Civil Code (or Common Frame of Reference, as it is now less contentiously termed) is envisaged as extending to security rights over property. The second pressure point stems from lobbying to promote the merits of Article 9 of the American Uniform Commercial Code as the basis for European (and indeed international) harmonisation of the law of secured transactions. Behind the second point is the view that Article 9 is normatively superior to other systems and that, irrespective of national frontiers, the law should converge towards the best model. This chapter suggests that these theories fail to take adequate account of the ‘path-dependent’ nature of legal development. They also fail to pay sufficient regard to the role of national lawyers and other interest groups in the reform process. To illustrate my thesis, the English experience with an attempted transplant of Article 9 is singled out for discussion. * The author would like to thank the British Academy Leverhulme Trust for funding some of the research on which this chapter was based. An earlier version of this paper was presented at the WG Hart Workshop at the Institute of Advanced Legal Studies, London, in...
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