The difference existing in laws pertaining to security interests, such as security deposit, financial receivables, factoring, assignment of future income-stream in project finance and refining transaction, security interests on insurance policies, tort receivables and deposit accounts, all these have posed the difficulty in the international trade and peaceful resolution of cases of conflict arising from deals on security interest. Thus, the need to unify and harmonize security interest law internationally is one issue that for decades is a task to execute for the UNCITRAL, an agency of the United Nation.
This has captured the agency’s focus and interest as a way fashioning out a pragmatic approach in the unification of international law in security interest in order to improve international trade. Though sometimes, the task may seem impossible due to the gap and difference in domestic laws of states in security interest, the difficulty involved in a feasible unification of security interest on a global scale nearly resulted in the UNCITRAL conclusion that the process is a futile and realistic exercise.
The complexity state of the subject matter, wide differences existing among legal systems, the connection of the subject with other areas of law (such as bankruptcy) and work carried out by other organization on retention of title and factoring, all this have impeded the successful realization of the unification process of security interest law at the international level, though, UNCITRAL has not given up on the issue. Since the 1990s when resumption work on the unification process picked up, a significant progress has been recorded by the attained.
Thus, this write-up will analyze the current importance of the unification of the lien. How successful the UNCITRAL has gone in fashioning a pragmatic framework for harmonizing security/ deposit law in the international system. The actual problems obscuring the successful outcome of this exercise would be looked into and an evaluation of opinion on the subject matter. CONCEPTUALIZATION OF TERMS Different terminologies regarding security rights are defined by the United Nations Commission on International Trade Law (UNCITRAL).
With respect to ‘purchase money security right’ it was agreed that the reference to transfer of title should be deleted to avoid inadvertently giving the impression that the main purpose of transfer of title was to provide credit for the purchase of assets. On ‘proceeds’, it was agreed that a reference should be included to collectibles of receivables. Also, it was suggested that ‘proceeds’ should refer only to proceeds received by the grantor as the secured creditor would have a right to follow the encumber assets in the hands of a third party and a right in the proceeds received by the grantor.
‘Possessory security right’ was defined that reference should be made to tangible assets in order to clarify that negotiable instrument and negotiable documents, which were included in the definition of tangibles, could be subject to a possessory security right (UNCITRAL, 2004:7) Security interest: security interest can be defined as transaction pertaining to the forward payment of financial consideration that is repayable based on certain laid down agreed terms, in this case, there is transfer of title or title that is reclaimable at the end of the transaction.
Security interest thus, includes security deposit, receivables, assignment etc. According to Ali (2002), the security interest is one of the most important devises used by financiers to manage credit risk. The level of advantage enjoy by the financier who holds a security interest over the assets of a debtor is of a considerable proportion. The most important class of security interest, concerns security interests granted by companies over their personal property.
This plays an integral role in many modern financing transactions. Some latest for of security interests include lightweight floaters and fixed charges over fluctuating asset classes; which are used by financiers, and the substitutes for security interests, principally negative pledges, retention of title clauses set- off and flawed assets. Security deposits in many instance has to do with leasing/ rental contract.
Where a landlord or the assets owner of the rented fixed assets, as building, demands for a specified amount, as an upfront to safeguard any anticipated damage done by the tenant to the assets it becomes a security deposit. And by law this security deposit is receivable when the occupier of the asset is moving out or done with it, without any damages recorded. According to Bazinas (1998 ), the broad definition of the Working Group, on the draft convention of UNCITRAL, defined ‘receivable’ that it applies to a wide variety of transactions (e.
g. factoring, securitization, assignment of future income- stream in project finance and refinancing transactions), including transactions involving the transfer of tort receivables, insurance policies and deposit accounts. Assignment: an assignment is defined as the transfer of a receivable by agreement provided that the transfer is made against value, credit or related services. Thus, transfer of an assignment involves both the transfer of property rights in receivables and the agreement to assign this transfer right (ibid).
Unification of security interest: the unification of security interest entails the harmonization and the coming out with a common law that will guide transactions of contract pertaining to security interests and deposits at the international level. thus, in order to effect common practice, reduce the difficulties involve in conflict resolution arising from the subject matter and proper interpretation of contract terms regarding security interest, it then requires a unification.
That is, harmonization of laws concerning transactions on security interest in the international level. EFFORT OF UNCITRAL IN UNIFYIN G INTERNATIONAL SECURITY INTEREST United Nations Commissions on International Trade Laws (UNCITRAL) has the responsibility of making the law guiding international trade, one that is unified in its application and also, that brings about ease in the process of transaction and effective trade.
With the problem of diverse state’s domestic laws; difference in laws guiding the operation of security interest in each country, this has not only helped in impeding the smooth transaction of trade at the international level, but also hampered the smooth administration of conflict resolution resulting from transaction across national boundaries. Thus, the need to carry out an effective unification of laws on security interest is a huge task UNCITRAL has been pursing for many years. Series of reports to this effect have come up from Working Group’s session meetings.
It is the intention of UNCITRAL to provide new protection, in order to address the key objective referring to the need to balance the interests of affected persons. This is to be done without impairing existing public policy that was an issue of the enacting state integrating the secured transactions law into its national system (UNCITRAL, 2004:6). The bulk of corporate wealth is locked up in receivables. Assignments provide the primary legal framework for receivables financing yet the legal regime governing assignment is uncertain, fragmented or outdated.
With this focus in mind, the UNCITRAL undertook work in field of assignment of receivables. The Working Group on International Contract Practices of UNCITRAL has been working on this topic since November 1995. (Bazinas1998:317). In 1980, the UNCITRAL discontinued its drive towards harmonizing universal law on security interests. It was concluded that the process is unattainable. As a result of the wide differences existing among legal systems, the connection of the subject with other areas of law and the work carried out by other organizations on retention of title and factoring.
“it can be assumed that other reasons led UNCITRAL to discontinue its work on security interests, such as the desire to give priority to other items on the program of future work or to avoid duplicating the work carried out by other organizations” (Ibid:318). By 1992, the commission started its work on security interests, but not on a serious scale. The current move of UNCITRAL has agreed to broaden its key objectives relating to the harmonization of secured transactions laws; this should be expanded or a new key objective should be added to refer to the need to provide conflict-of-laws rules.
It was widely felt that, to the extent complete harmonization of national secured transactions laws might not be achieved, conflict rules would be particularly useful to facilitate cross- border transactions (UNCITRAL, 2004:7) In regards to the scope of security interest to cover, it was agreed by the UNCITRAL Working Group, that the draft Guide should not only take a unitary approach, covering a broad range of assts, security rights, obligations and parties but also a functional approach, covering all types of transactions performing a security function irrespective of the form of those transactions.
On this scope also, differing views were expressed as to whether the security right should be extended to proceeds of proceeds of the encumbered assets by the grantor outside its ordinary course of business without the consent of the secured creditor, the secured creditor would have a right to follow the assts in the hands of any transferee and a right in all proceeds received by the grantor and any transferee.
While sales of receivables is added to the scope to be covered, security and real e states were excluded from the s cope of the d raft Guide of the Working Group. As the latter were subject of a convention being prepared by the Hague Conference on Private International Law. With respect to ships and aircrafts, it was agreed that, as long as the special regimes dealing with security rights in such assts and registration was not interfered with, there was no need to exclude them from the scope of the draft Guide (ibid:8-9).
The Working Group has also tentatively decided that any reference to conflict- of –laws rules should be avoided in the context of the provisions dealing with the scope of application of the draft convention because it could raise uncertainty to the extent that the conflict- of- laws rules on assignment are not uniform (Bazinas1998 :326) In the process of harmonization of laws that has to do with securities of interest, which pertain to the transfer of title and reclaimable assets, it then requires the combination of states legal framework on the subject matter and ways of harmonizing the variance in them in order to obtain successful unification at the international level. To Burman (2001), to this effect certain emerging questions arose in the 1990s: i. Should harmonization continue to occur by merging existing legal systems and established rules, and thus reaching common denominators between countries; or ii.
Should commercial law unification now become, as some argue, result and policy driven, so that agreement is measured by economic gains and not by the merging of differing standards; and iii. In view of various technological changes primarily electronic commerce, can these efforts legitimately seek into establish uniform rules before national legal system have been developed? In regards to the first question US is a reckoning force and propagator of the unification work at the international trade level. With little international consensus on the economic goal of the harmonization process US have challenged the expansion of unification work, thus, promoting the expansion of trade and global law networks. This has been coupled with greater support internationally for private sector solutions.
Secondly, the advent of electronic computer has result in turning the trend from traditional harmonization process seeking to bridge differences stemming from decades of national laws, decisions and cultural approaches. Recent efforts have attempted to establish international legal norms and standards before national laws take root and territorial differences loom as obstacles to cross- border computer based commerce. The 1990’s has recorded front liner work taken on more economic and other policy issues, which from time to time may call for a different vision of the unification process, compare to the 1980’s where major developments such as the UNIDROIT Principles of International Commercial Law (ibid).
With the aid of improvement in IT based network, such as internet, international trade has been potentially endowed with openings of new avenues of trade stream across national boundaries. This has made UNCITRAL carry out projects on electronic commerce in 1992. This project covered UN rules on international credit transfers and rested in part on commercial banking law concerns and in part on public supervisory concerns of banking authorities. Most recent phase of UNCITRAL on the project has engaged substantial public policy issues and squarely contrasts governmental concerns or regulatory approaches with private sector marketing and risk issues.
This phase focuses on proposed international legal rules for identification and attribution of messages, as w ell as message integrity. In the aspect of projects on security interest, Burman (2001) has it that, two draft conventions are concurrently underway at UNIDROIT and UNCITRAL, which can significantly boost availability of commercial credit for investments and transactions. Adoption of either for many countries could signal a concrete step toward seeking the benefits of global economic village, which in turn may also call for a change in some domestic law traditions. The first of the two projects, builds on high-end moveable equipment such as aircraft, containers, satellites, agricultural and construction equipment, and possibly vessels.
This forms the proposed UNIDROIT convention, as a build up from the 1988 UNIDROIT convention on International Financial Leasing. The focus of this project is to cover and determine the status of equipment transfer across borders; whether equipment ab initio that cross borders regularly in the normal course of business is a key issue. Both treaty projects rely on open disclosure systems, whereby potential assignees, upon whom credit system rely, would have prior notice of the existence of other and possibly competing interest. The second related project, this proposed by UNCITRAL convention, covers accounts receivable financing, which is often, employed for general inventory and project financing.
In this regards it has a wider reach than UNIDEOIT text; whereby both international receivables and international assignment of domestic receivables are currently drafted (ibid). The UNCITRAL Working Group VI on security interest reached several recommendations. Among these notable ones aimed at consolidation and the unification of security right include: • With respects to fixtures, accessions and commingled goods, it was agreed that the recommendation should be that the security right should be preserved even after they were attached to immovable or moveable property, or commingled with other assets. Here, the relative rights of competing claimants should be addressed as an issue of priority. With respect to proceeds, it was suggested that the recommendations should be that: i.
Unless otherwise agreed by the parties, the security right in the encumbered assets should extend to any proceeds ii. Proceeds had to be identifiable; and iii. Tracing rule should be introduced. • Dealing with the requirement of a signed writing for the security agreement, it was agreed that, while possession was sufficient for the creation of possessory security rights, a writing signed by the grantor should be required for the creation of non-possessory security right; Where the requirement for a writing signed by the grantor was necessary to put the grantor on notice as to the important remedies of the secured creditor with respect to the encumbered assets.
• In view of the minimum contents of the security agreement, it was agreed such a form requirement would place an undue burden on parties. In order to ensure that result could be melt, it was also agreed that the writing requirement could be met by a data message; as defined in article 6 of the UNCITRAL Model Law on Electronic Commerce. • As to whether failure to meet the requirement for a signed writing would result in the security agreement being ineffective or impossible, it was decided that the matter should be left to the law of each enacting state, taking into account that the two approaches was conceptual rather than practical. Thus, it was agreed that failure to meet the form requirements fro the security agreement did not affect the underlying secured obligation
On the definition of the term ‘grantor’ it was agreed that there must be a consistency between which implied that the grantor was the owner of the encumbered assets, and that which suggested that the grantor did not need to be the owner of the encumbered assets. • The term ‘control’ needs to be clarified by reference to its technical meaning. In regards to default and enforcement, the Working Group gave the following recommendations: • It was agreed that clarity should be given for the source of the right of the grantor to dispose of the encumbered assets within a limited time period after default could be an agreement with the secured creditor or a rule of law.
In the case of a third party grantor, any surplus should be returned to the grantor and not to the debtor. It was agreed that discussion should be added with respect to the intersection of moveable and immovable property law. • The importance of ensuring expeditious realization of the value of encumbered assets, balance between efficiency and due process, flexibility for parties to agree on the appropriate enforcement mechanisms, protection of the rights of third parties and finality upon completion of enforcement proceedings were emphasized. It was also widely felt that at absence of a credible judicial system, no enforcement procedure could work well, a point that should be made in the commentary.
• It was observed that: notice of default and enforcement was a matter of contract law; the debtor knew of its default and should not be given an opportunity to delay or derail enforcement procedures; it was not advisable to establish by law cumbersome mechanisms that could have a negative impact on the realization value of encumbered assets; the nature and the details of notices might differ depending on the type of encumbered assets and security right involved; a specified notice of disposition that had the effect of cutting off the grantor’s rights in the encumbered assets should be sufficient; and consumers would not be adversely affected since consumer- protection legislation would always prevail. On the aspect of conflict laws, notable general remarks and recommendations by the Working Group include, inter alia: • Law of the country where the goods were located should govern security rights in negotiable documents of title.
It was widely felt that both the commentary and the recommendations on the matter were appropriately formulated to protect the negotiability of the document and to accommodate market needs. The following were agreed upon, (i). the clarification of the meaning of the reference to the law of location at ‘the time when an issue arises’; (ii). Specify the grace period within which a secured creditor could take any steps to preserve the effectiveness of its right against third parties in the new jurisdiction to which the goods were moved; and (iii). Clarify whether the term ‘place of destination’ meant ultimate destination only or intermediate stop as well.
• In the context of the discussion of the purpose of the recommendations on conflict of laws, the concern was expressed that the term ‘creation’ might be confusing in countries where creating of a security right produced effects against all. In order to address that concern, the suggestion was made that the term ‘creation as between the parties’ should be used. (UNCITRAL, 2004). Based on the highlighted recommendations of the UNCITRAL Working Group VI, it is seen that the process of unifying laws of security rights in international level needs a consensus and well articulated definitions on common terms with different applicable meanings in security interest.
It is seen that there exist variance in meaning ascribed to certain terms across borders. Therefore, proper and clarified definition and interpretation is required in order to make success the unification process. Also, it is seen that the Working Group took a broad approach in articulating the transfer of security right and remedies for default and enforcement. This basis proffer a good stand in clarifying issues pertaining to enforcement of security rights and how defaults could be managed. The importance of interpreting the status of security rights as Bazinas ( 1998:332), puts it, receivables assigned are often backed by security rights, which may be personal rights (e. g.
, pledges, mortgages); the insolvency of the assignor, in which case the assignee may not be able to obtain payment from the debtor or the assignor. In addition, often the value for the assignee may not be in the assigned receivable itself but in the security right. Thus, the importance of the effect of the assignment on rights security payment of the assigned receivables is obvious. “The draft convention attempts to codify current law in that it adopts the principle that accessory rights are automatically transferred with the receivables that they secure. In order to avoid interpretation problems as to the accessory character of the rights, the draft convention refers the matter to domestic law or to the agreement of the parties” (ibid).
Though, the Working Group gave a broad clarification on the right status, but certain aspect was not clearly defined. In regards to assignee’s right to payment this is not clearly explicit on the right status. As Bazinas (1998:336), puts it, “Thus, the current draft recognizes assignee’s right to payment but does not specify whether this is a right ad personam or aright in rem”. DIFFERENCE REGIMES ON SECURITY INTEREST LAWS PRACTICED BY SOME COUNTRIES The need to unify the lien came as a result of the difference existing in laws on security interest. The composition of one country’ law and interpretation given to terms and content tend to differs from other countries.
This difference tends to hamper and sometimes constitute confusion to those involve in deals in the international level. Sometimes within a country, like the US, Canada, Australia, especially those operating a federal system, each state may operate a different regime law on security interest. In this view, Law Reform Commission (1998), has it that existing personal property securities laws are inconsistent and cause confusion for prudent potential property over which it is intended to take security is already encumbered. Each jurisdiction has a number of regimes and each regime has different rules. Lenders and other interested parties should have the opportunity to determine once and for all whether a piece of personal property is already encumbered.
They should also be able to determine quickly and easily what priority any particular security will have, when the unification of regimes is put in place. The difference in the laws interpretation makes it hard to imagine a fixed or floating charge unpaid vendor’s lien, a conditional sales agreement (including an agreement to sell subject to retention of title), a hire- purchase agreement or a pledge not having a security purpose but the form which these instruments take may not be definitive of their purpose. in the jurisdiction regimes of different countries on security interests, some transactions are either specifically included or specifically excluded from overseas personal property security models even though they have a security purpose.
Law Reform Commission (1998), has it that “one rationale for these exceptions from the general rule is a desire to maintain some degree of certainty about the s cope of operation of the regimes set up by these models since creating statutory exceptions avoids the need to determine the more fundamental issues of whether the transaction does in fact have a security purpose”. Many transaction exempted are of common transactions across other regimes. Thus, another reason for their exclusion from a regime involves a desire to avoid the cost and delay associated with many transactions which may not have any commercial significance whatsoever (ibid).
In the United States, the following transactions are included or excluded in the regime administration on security interest. Inclusions: Article 9 applies to • Any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles chattel paper or accounts • Any sale accounts or chattel paper • Security interests created by pledges, assignment, chattels mortgages, chattel trusts, trust deeds, factor’s liens, conditional sales, trust receipts, other lien or title retention devices and leases or consignments intended as security. Exclusions: Interests excluded from the Article 9 system and therefore cannot b registered
• Security interests which are subject to any statute of the United States which governs the rights of parties to and third parties affected by transactions in particular types of property. • Interests in s ales of accounts or chattel paper which form part of the assets of a business which is up for sale. • Transfers of an interest in, or a claim in or under, any policy of insurance transfers of an interest in a deposit account. • A landlord’s lien • Any other lien given by statute or rule of law except as provided by section 9- 310 (priority of certain liens arising by operation of law) • Transfer of a claim for wages, salary or other compensation of an employee
• Transfer by a government or governmental subdivision or agency • Right represented by a judgment (other than a judgment taken on a right to payment which was collateral) • Right to set- off • Except as provided in section 9-313 (fixtures), the creation or transfer of a real interest • Transfer in whole or in parts of any claim arising out of tort. The general pattern of the above provisions has the characteristics of exclusion of non- consensual security interests in contingent or non- vested property. Canada Canada’s act applies to every transaction than in substance creates a security interest, without regards to title or to form.
“The concept eliminates the owner need to categories security clearly reproduces the conventional understanding of a security interests in personal property that is at the heart of every secured transaction. ” ….. Subject to some exceptions, transactions are remittable, and therefore subject to the rights and duties imposed by the regimes, if they have a security purpose. Inclusions of transactions in Canada’s regimes are structured in different fashion within different states. In Manitoba mortgages, leases and charges come within the operation of the Act not withstanding that the collateral is real property. In practice, the Manitoba Act only requires that these types of interest be subject to the regime established by the Act if the assignment is for the purpose of securing an obligation.
A lessor’s right to be paid rent is not secured by the tenant’s occupation. However, if the lessor took a loan from a bank and produced as collateral its right to receive rent then the banks interest in the lease is a security interest in the lease is a security interest for the purposes of the Act. In other parts of Canada, the regimes set up under Saskatchewan’s Act and the Western Canada Model Act are fundamentally different from the Ontario Act in that the former regimes specifically include commercial consignments, leases for more than one year and interests arising from an assignment of accounts or a transfer of chattel paper whether or not they have a security purpose.
Exclusions: As there are different set up for inclusions in different states in Canada, so there are for exclusions. Ontario: The following types of interests are excluded by the Ontario Act from the operation of its personal property securities regime • Liens given by statute or law, with the exception of liens on real and personal property obtained by judicial process • Transfers of interests or claims in or under any policy of insurance or contract of annuity • Any transaction regulated by the Pawn brokers Act 1980 (RSO) c 372 • Mortgages, charges or assignments whose registration is provided for in the Corporation Securities Registration Act 1980 (RSO) c 94 • Assignments of an interest (including a mortgage, charge or lease) in re al property.
Manitoba: The Manitoba Act exchanges the same types of interests as those listed in Ontario Act, with the exception of corporate securities, which are included in the Manitoba regime. Other added lists to the exclusion are: • Interests in life insurance contracts • Assignment of wages • Security interest in property of the crown or any of its emanations buyers’ and sellers’ rights under the Sale Good Act 1980 (RSO) c 462. Saskatchewan, Alberta and British Columbia share the same exclusions as that of Ontario. The only difference is that insurance proceeds which are excluded from the Ontario Act, and covered by the Saskatchewan Act. United Kingdom Inclusions: The consensual security interests are subject to the operation in the UK regime.
Here, security interest is defined as, mortgages, changes and security in the strict sense but also any other transfer or retention of any interest in or rights of money or the performance of any other obligation (Professor Diamond, quoted in Law Reform Commission, 1998). Title retention contracts, possesory security rights, corporate securities and consumer transactions, all come within the scope of the UK regime on security interest, notwithstanding that the interests created by these types of transactions may not need to be registered. Other interests included in the UK regime but to be excluded in remittable file include: • Interests in consumer goods (other than interest in motor vehicles, caravans, trailers and vessels not registered under the Merchant Shipping Act 1894 (UK) • Interests in s mall transactions • Purchase money security interest and • Transfers in the ordinary course of business.
Exclusions: exclusions in the UK regime, includes exclude obligations which is likened to ‘secured’ payments or performance such as guarantees, indemnity policies or performance bonds, for these do not involve an interest in or right over property. (Reform Law Commission, 1998) PROBLEMS MILITATING AGAINST THE EFFECTIVE UNIFICATION PROCESS Some militating problems and issues that need to be address are constituents that impede the efforts at harmonization of the lien. The absence of a central law body to administer intermediary risk at the international level tends to obscure the direct flow of transactions. The implication of this legal void, according to Schwarcz (2001), is it “creates significant uncertainty as to whether the intermediary’s creditors can look to all those assets, or merely to the intermediary’s interest therein, for repayment.
That uncertainty in turn increases the costs for parties engaging in these transactions and may discourage certain of these transactions altogether”. More so, in the international transactions of security interest, it is seen that securities in contemporary times are generally held indirectly through multiple tiers intermediaries. Cross- border investment requires not only tiering of intermediaries, but also involvement by intermediaries in different country’s laws. Existing national laws contain unnecessary ambiguities when applied to such multi- tiered securities holding system (ibid). Another observed problem is the issue of the polarity approach of ‘Regionalism vs. Universalism’. The United Nations and other broad- m