GPRPraxis

Schriften zum Gemeinschaftsprivatrecht

Die Schriften zum Gemeinschaftsprivatrecht werden herausgegeben von

Professor Dr. Martin Schmidt-Kessel, Osnabrück

Professor Dr. Christian Baldus, Heidelberg

Privatdozent Dr. Martin Gebauer, Heidelberg

Professor Dr. Brigitta Jud, Salzburg

Professor Dr. Peter Jung, Basel

Richter am OLG Dr. Jan Maifeld, Düsseldorf Rechtsanwalt Dr. Eike Najork, LL.M., Köln

Notar Dr. Robert Schumacher, LL.M., Aachen

Cross-Border Security

over Tangibles

edited by

Harry C. Sigman Eva-Maria Kieninger

ISBN 978-3-86653-037-9

Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar.

© 2007 by sellier. european law publishers.

Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen.

Gestaltung: Sandra Sellier, München. Herstellung: Karina Hack, München. Druck und Bindung: AZ-Druck, Kempten im Allgäu. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany.

Preface

This book originates from a workshop, organized by the editors, that took place at the European Law Academy in Trier in March 2007. The case studies and national reports were presented, compared and discussed by the panel of authors and among the participants, mostly law practitioners from a large number of EU Member States.

The book presents significantly revised versions of the national reports, together with a comparative study of the current divergences and in-depth material about Uniform Commercial Code Article 9 (particularly about “notice filing”), as well as a discussion of the prospects for and possible content of a harmonized European secured transactions law.

The editors and authors thank the European Law Academy, especially Dr. Angelika Fuchs, for the possibility to hold the workshop and for the excellent facilities at the Academy’s premises in Trier. They also thank the participants for their stimulating comments and questions. We are grateful to Olaf Beller, research assistant at the University of Würzburg, for his diligent editorial work and – last but not least – to the editors of the “Schriften zum Gemeinschaftsprivatrecht” for the possibility to publish this book within this series.

We hope that this book will foster a better understanding of each of the national laws studied and the nature and scope of the differences among them, help practice to overcome the current difficulties encountered in cross-border secured transactions and contribute to reform and to a future European harmonization measure.

Harry C. Sigman

Eva-Maria Kieninger

List of Contributors

Michael Bridge is Professor of Law at the London School of Economics. He was formerly Professor of Commercial Law and Dean of the Faculty of Laws of University College London. He is also a barrister of the Middle Temple. He was a member of the Property Group for the Trento Common Core Project, and is an advisor to the European Civil Code Study Group (secured transactions and transfer of property). He has written The Law of Personal Property Security (2007) with co-authors, co-edited a collection on Cross-Border Security and Insolvency, contributed the chapter on Insolvency for the encyclopaedia on English Private Law and is the editor of the chapters on company charges in Palmer’s Company Law.

Ángel Carrasco Perera received his Master of Law in 1982 and his Doctor of Law in 1985, both from the Autonomous University of Madrid. He has been a Professor of Civil Law at the Autonomous University of Madrid (1987), Professor of Civil Law at the University of CastillaLa Mancha (1989) and Vice-Chancellor of Institutional Relations at the University of Castilla-La Mancha (1991-1997). He now holds the Chair of Civil Law at the University of Castilla-La Mancha and is a member of the Academic Counsel of Gómez-Acebo & Pombo since 1998. He has written

Fianza, accesoriedad, contrato de garantía (1992), Tratado de los derechos de garantía (2002) with co-authors and Los derechos de garantía en la Ley Concursal (2005).

Eric Dirix is judge in the Belgian Cour de cassation as well as Professor at the University of Leuven, where he teaches Insolvency Law. He obtained his PhD with a thesis on Contracts and Third Parties, and has written extensively on the areas of contracts, security and insolvency. He is also the president of the Belgian Centre for Comparative Law.

Eva-Maria Kieninger is Professor of German Private Law, European Private Law and Private International Law at the University of Würzburg, Germany (since 2001). She studied law at the University of Passau, Germany, and at King’s College, London. She received her PhD from the Free University of Berlin in 1996. Secured Transactions Law is among her main fields of interest. Her major works in this area are: Mobiliarsicherheiten im Europäischen Binnenmarkt (1996) and Security Rights in Movable Property in European Private Law (2004). Contact: Kieninger@ jura.uni-wuerzburg.de.

James Leavy is a member of the French and Quebec Bars and is a partner in the Paris office of Weil, Gotshal & Manges. He received his legal education at McGill University (Montreal), the University of Montreal, the College of Europe (Bruges) and the University of Paris XI. His practice involves secured transactions and he has written many articles in this area, and he is a member of the advisory board of the International Financial Law Review. He is a member of the legal affairs committee of Paris Europlace, an association of the principal institutions operating on the Paris financial market.

Julia Rakob studied law from 1988 to 1992 at the universities of Heidelberg, Freiburg and at the Free University of Berlin. In 1996/97 she completed a master’s program at Cornell (USA). She worked as assistant at the Institute of Foreign and International Private and Business Law of the University of Heidelberg and completed her doctoral thesis on security rights in movables in cross-border transactions in 1999. From 1999 to 2005, she worked as a banking and finance lawyer with Linklaters in their Frankfurt, London and Berlin offices. In 2005, she joined the Berlin School of Economics as Professor for business-, bankingand capital markets law.

Harry C. Sigman received his Juris Doctor from Harvard Law School in 1963, and has taught at USC and UCLA Law Schools in Los Angeles, as well as at law faculties in Belgium, the Netherlands and Switzerland, and has presented seminars and guest lectures throughout Europe and in Asia, Latin America and Australia. An experienced practitioner as well, he has been a member of the California Bar for over 40 years, specializing in commercial law. He was a member of the Drafting Committee to Revise Uniform Commercial Code Article 9, and he is a U.S. Delegate with respect to the UNCITRAL Legislative Guide on secured transactions. He is a contributing author, Security Rights in Movable Property in European Private Law (2004). Contact: hcsigman@aol.com.

Michael Veder is an attorney in the Amsterdam office of De Brauw Blackstone Westbroek, specialising in insolvency law and security rights. He holds a doctorate in law from the University of Nijmegen and is author of Cross-Border Insolvency Proceedings and Security Rights (2004). He is secretary of the Government Committee on Insolvency Law (Commissie Insolventierecht) that advises the Dutch government on future reform of insolvency law. He is a Fellow of the Business & Law Research Centre (University of Nijmegen).

Anna Veneziano is Professor of Private Comparative Law and International Commercial Transactions at the University of Teramo, Italy (since 2000). She studied law at the University of Rome La Sapienza, as Erasmus at the University of Hamburg and at the Yale Law School (USA), where she received an LL.M. in 1993. She received her PhD at the University of Florence, Italy. She has written in the field of secured transactions and international insolvency. She was a member of the Italian delegation with respect to the 2001 Cape Town Convention on International Interests on Mobile Equipment and the Protocol thereto relating to aircraft collateral, and is national Advisor to the Working Group on Proprietary Security within the Study Group on a European Civil Code.

Introduction

Harry C. Sigman/Eva-Maria Kieninger

The Case Studies

Harry C. Sigman/Eva-Maria Kieninger

Germany

Julia Rakob

I.Introduction

France

James Leavy

4.Purchase-money (asset-acquisition) financing – comparison of financing provided by seller,

England and Wales

Michael Bridge

I.Introduction

Italy

Anna Veneziano

I.Introduction

4.Purchase-money (asset-acquisition) financing – comparison of financing provided by seller,

Netherlands

Michael Veder

I.Introduction

Belgium

Eric Dirix

I.Introduction

II. Case studies

1.Non-possessory security right in specific existing items of equipment 230

2.Non-possessory security right in present and

Spain

Angel Carrasco

I.General background; structure of national law