Financial Instruments - Holding, Transfer, Collateral

Abstract

The law governing various aspects of securities holding and disposition was, and still widely is, purely national law, whereas the relevant markets were highly internationalised and securities were transferred and pledged cross-border all the time. Against this background, the EU adopted the Settlement Finality Directive in 1998 and the Financial Collateral Directive in 2004. The Hague Conference on Private International Law adopted the Hague Securities Convention in 2002, and UNIDROIT adopted the Geneva Securities Convention in 2009. These EU and international instruments address in part identical problems. Some of the solutions provided by these are compatible, or even identical, with one another, others differ. This paper provides an analysis of the main patterns for holding and disposition of financial instruments, including the provision of financial collateral. It emphasises the importance of the relevant conflict-of-law analysis.