Recent developments in the law of secured transactions of movables under the new Chinese Civil Code

2021 ◽  
Author(s):  
Jing Zhang
Keyword(s):  
Civil Code ◽  
International Institute ◽  
Trade Law ◽  
International Trade Law ◽  
Filing System ◽  
Commercial Code ◽  
Secured Transactions ◽  
Recent Developments ◽  
The Law ◽  
International Conventions

Abstract In May 2020, the first Chinese Civil Code was enacted. This Civil Code incorporates several modifications of the law of secured transactions concerning corporeal movables and receivables. These modifications are made under the influence not only of international conventions, model laws, and legislative guides by the International Institute for the Unification of Private Law and the United Nations Commission on International Trade Law but also of overseas legislation, especially Article 9 of the Uniform Commercial Code. First, a semi-functional approach is taken by the Civil Code. The security agreement includes, in addition to typical security contracts, ‘other contracts having a function of security’. Consequently, the rules concerning the property right of charge (hypothec) are also applicable to reservation of ownership, financial lease, factoring, and other security interests, provided that there is no lex specialis. This leaves a larger space of autonomy for individual parties. Moreover, the new Civil Code intends to construct a more inclusive register by requiring reservation of ownership, financial lease, factoring, and other types of security rights to be registered to be effective against third parties. The future register for ordinary corporeal movables and claims will very possibly be a notice-filing system.

Setting a new standard for the harmonization of secured transactions law: the new Belgian Pledge Registry

2019 ◽  
Vol 24 (3) ◽  
pp. 520-544
Author(s):  
Joke Rachel Baeck ◽  
Lize Heytens
Keyword(s):  
The United States ◽  
Modern Technology ◽  
International Standards ◽  
Trade Law ◽  
International Trade Law ◽  
Filing System ◽  
Registry System ◽  
Commercial Code ◽  
The Us ◽  
Secured Transactions

Abstract At present, the notice filing system under Article 9 of the United States Uniform Commercial Code is seen as the most influential model worldwide for a registry of security rights in movables. However, the US system, established in 1952 and currently still in transition towards electronic filing, does not meet state-of-the-art technology standards. By contrast, the Belgian Pledge Registry, operational since 1 January 2018, is a fully automated electronic registry system that benefits from the advantages of modern technology. The question therefore arises whether the Belgian Pledge Registry has the potential to become a new additional leading model for registration of security interests in movables. To answer this question, we will test the extent to which the Belgian Pledge Registry meets the current international standards for a modern and efficient registry of security rights in movables, as set out in United Nations Commission on International Trade Law instruments and the European Draft Common Frame of Reference.

scholarly journals National Blockchain Laws as a Threat to Capital Markets Integration

2021 ◽  
Author(s):  
Matthias Lehmann
Keyword(s):  
International Institute ◽  
Private Law ◽  
Private International Law ◽  
The European Union ◽  
Legal Rules ◽  
Trade Law ◽  
International Trade Law ◽  
Commercial Code ◽  
The World ◽  
The Usa

Abstract Various states have started providing private law frameworks for blockchain transfers and crypto assets. France and Liechtenstein have adopted the first acts, while a commission of the British government sees no difficulties in extending property protection under the common law to crypto assets. In the USA, an amendment to the Uniform Commercial Code has been suggested, which has not stopped some states going their own, different way. The aim in all cases is to promote the use of modern distributed ledger technology and enhance investor protection. While these initiatives will increase legal certainty, they differ significantly. This has an important downside: there is a strong risk that the blockchain will be made subject to diverging legal rules. Similar to the world of intermediated securities, various national laws will need to be consulted to determine the rights and privileges of investors. This may increase transaction costs, thwart interoperability, and produce thorny conflict-of-laws problems. Markets risk being fragmented into national segments, with an inevitable diminution of their depth and liquidity. As a remedy, this article suggests developing uniform rules for the blockchain. Before national legislators and judges once again divide the world through idiosyncratic rules, the private law of crypto assets should be harmonized to the highest degree possible. Uniform rules should ideally be forged at the global level, by fora like the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL), and the Hague Conference on Private International Law. In the absence of worldwide rules, uniformization of private law should take place at the regional level—for instance, by the European Union. The article makes specific suggestions as to how this can be achieved and what the content of those rules should be.

Hague Securities Convention goes into effect in the United States

2017 ◽  
Vol 18 (4) ◽  
pp. 72-77
Author(s):  
Bryan L. Barreras ◽  
Barbara M. Goodstein ◽  
Kevin C. McDonald
Keyword(s):  
The United States ◽  
Choice Of Law ◽  
Content Type ◽  
Commercial Code ◽  
The Us ◽  
Secured Transactions ◽  
The Hague ◽  
Market Practice ◽  
The Law ◽  
The Impact

Purpose To explain the Hague Securities Convention in the context of secured financing transactions in the US and to discuss the implications of the Convention on new and existing transactions, as well as on market practice going forward. Design/methodology/approach This article provides a broad overview of the Hague Securities Convention and the impact of the Convention’s choice of law rules on secured financing transactions in the US involving intermediated securities, including how this deviates from previously applicable laws (such as the Uniform Commercial Code), and provides practical considerations with respect to secured financing transactions. Findings While in most circumstances the Convention provides for the same choice of law as previously applicable laws, there are certain scenarios where the Convention will produce a different result. Market practice with respect to perfecting security interests will likely change to take account of the Convention and to provide the parties with certainty regarding the law applicable to secured transactions. Practical implications The Convention calls for increased diligence with respect to the law governing the account agreement between the debtor and the securities intermediary and whether the securities intermediary has a qualifying office in that jurisdiction. Originality/value Practical guidance from experienced finance lawyers.

Redfern and Hunter on International Arbitration

2015 ◽  
Author(s):  
Blackaby Nigel ◽  
Partasides Constantine ◽  
Redfern Alan ◽  
Hunter Martin
Keyword(s):  
Conflicts Of Interest ◽  
International Arbitration ◽  
Sixth Edition ◽  
Trade Law ◽  
International Trade Law ◽  
Constant Change ◽  
The Law ◽  
Bar Association ◽  
Model Law ◽  
The Many

This sixth edition of Redfern and Hunter on International Arbitration takes a fresh look at the law and practice of international arbitration in today’s world, against a background of constant change and evolution. Since the fifth edition of this book was published in 2009, there have been major changes in many national laws governing international arbitrations, as states seek to become ‘arbitration friendly’ by introducing new laws based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law. There have been changes too in some of the best-known rules of arbitration, including new UNCITRAL Rules of Arbitration (2010), new International Chamber of Commerce (ICC) Rules of Arbitration (2012), and, in October 2014, new Rules from the London Court of International Arbitration (LCIA). There have also been important developments in the so-called soft law of international arbitration. In 2010, the International Bar Association (IBA) published a revised version of its Rules on the Taking of Evidence in International Arbitration, and followed this up in 2014 by publishing new and important Guidelines on Conflicts of Interest in International Arbitration. This sixth edition of Redfern and Hunter reviews the many changes that have taken, and are taking, place in the law and practice of international arbitration, and it places these changes in context as part of the constant evolution of a voluntary system of dispute resolution that is today recognised and established worldwide.

Part V Legal and Conduct Risk in Interconnected Financial Markets, 18 The Role of International Institutions in Financial Law Reform

2018 ◽  
Author(s):  
Mccormick Roger ◽  
Stears Chris
Keyword(s):  
International Trade ◽  
United Nations ◽  
Financial Institution ◽  
International Institute ◽  
Private Law ◽  
Governmental Organization ◽  
International Financial Institution ◽  
Trade Law ◽  
International Trade Law ◽  
The United Nations

This chapter focuses on United Nations Commission on International Trade Law (UNCITRAL), the International Institute for the Unification of Private Law (UNIDROIT) and the European Bank for Reconstruction and Development (EBRD). UNCITRAL was created in 1966 by a resolution of the United Nations General Assembly. It was given a general mandate to further the progressive harmonization and unification of international trade law and regards itself as ‘the core legal body of the United Nations system in the field of international trade law’. UNIDROIT is an independent inter-governmental organization with 63 member states. The purposes of UNIDROIT are to ‘examine ways of harmonising and coordinating the private law of States and groups of States, and to prepare gradually for the adoption by the States of uniform rules of private law’. The EBRD is an international financial institution that supports projects in more than 30 countries to promote transition to a market economy.

scholarly journals The Need to Remove the Civil Code from Mexican Commercial Laws: The Case of “Offers” and “Firm Promises”

2017 ◽  
Vol 1 (19) ◽  
pp. 21
Author(s):  
Raúl Iturralde González
Keyword(s):  
Civil Code ◽  
Commercial Law ◽  
Porfirio Diaz ◽  
Commercial Code ◽  
The Law ◽  
Further Development

In 1889, then Mexican President Porfirio Díaz enacted the Mexican Commercial Code that is still in force today. This code was inspired on the Napoleonic code of 1807. Unfortunately, the Mexican code eliminated the use of commercial customs and practices as an accepted method for breaching gaps in commercial law. Since then, Mexican commercial law has held the civil code as the basis for dealing with gaps and loopholes in the application of commercial law. This has prevented the further development of Mexican commercial law as it is forced to use institutions and doctrines that were not designed to deal with rapidly changing commercial issues. Mexican commercial law would benefit from the reincorporation of commercial customs and practices as a basis to fill in the gaps in the law.

scholarly journals Towards a Reformed Carriage of Goods by Sea Law: Indonesia and Global Practice

2020 ◽  
pp. 61-79
Author(s):  
Tetty Lubis
Keyword(s):  
International Trade ◽  
United Nations ◽  
Best Interests ◽  
Comparison Analysis ◽  
Trade Law ◽  
International Trade Law ◽  
Major Trading Partner ◽  
The World ◽  
Trading Partners ◽  
International Conventions

The UNCITRAL (United Nations Commission on International Trade Law) has adopted four international conventions to standardize laws governing the carriage of goods by sea. Hybrid versions of the four conventions have been largely applied by most maritime countries in the world, which leave a few countries to uphold their own versions, including Indonesia. Ten major trading partner countries with Indonesia have long established the implementation of provisions under the UNCITRAL conventions, while Indonesia still stays with 1898 codes, inherited from Dutch colonization. This paper examines the key provisions and shortcomings of UNCITRAL conventions and their global adoption. The discussion continues to individually evaluate and compare the legal practices of governing carriage goods by sea in Indonesia and its ten major country partners. The comparison analysis results in similar implementation of a hybrid version of the four UNCITRAL conventions adopted by the ten trading partners; which strongly encourages Indonesia to replace the 1898 commercial codes with current international practices that convey the best interests of Indonesia.

International Trade

2018 ◽  
Author(s):  
John Linarelli ◽  
Margot E Salomon ◽  
Muthucumaraswamy Sornarajah
Keyword(s):  
International Trade ◽  
Multinational Enterprises ◽  
Trade Relations ◽  
Trade Law ◽  
Positive Law ◽  
International Trade Law ◽  
History Of ◽  
The Law ◽  
Principles Of Justice ◽  
Significant Attention

Despite significant attention in recent times, the law of international trade has been remarkably resilient in steering clear of compliance with the demands of justice. The history of the law governing international trade is rooted in forms of coercion and violence designed to promote the interests of powerful states and their multinational enterprises. The first norm of international trade law for the modern state, the principle of freedom to trade, was a rationalization to commit atrocities, including genocide, to promote the interests of European powers and their commercial interests. This problematic history of the law of international trade led governments to promote the wrong values in international trade relations between states. The chapter then examines the international trade order put in place when treaties and positive law became more important and industrial forms of capitalism became ascendant, based on notions of promised-based commitment, providing states with a rationale to ignore notions of justice, disparities in bargaining power, global inequality, and other values. With such norms in effect still today, power is permissibly exercised via a transactional model between states. In this model, trade treaties are all about bargaining. A national or mercantilist conception of market took absolute priority, a conception in which markets are divided up according to power imposed in bargaining. The chapter explains how the contemporary trade treaty suffers from various pathologies because of these historical rationalities imposed on it from these prior eras. The result is a failure of contemporary trade agreements to comply with principles of justice and relatively little concern expressed about this failure.

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