Joined Up Thinking? An Analysis of the Scottish and English Law Commissions' Proposals for the Reform of Rights in Security and Charges Granted by Companies

Abstract

The aim of this article is to review the latest reports of the Scottish and English Law Commissions and the English Law Commission's most up to date thinking on law reform within the field of the constitution, priority and enforcement of company charges granted by companies registered in Scotland or England and Wales. The article assesses the recommendations and their effect from the viewpoint of the commercial law practitioner who desires closer integration between the laws of Scotland and England in this area.The terms of reference submitted to the Commissions are firstly evaluated. The Scottish legal requirements for the creation of company charges, or what are more accurately referred to as “rights in security” granted by companies will be considered. Such an analysis will involve an explanation of the “publicity principle” in Scots law in this particular context. The article then scrutinises both Law Commissions' recommendations, revealing that the English Law Commission's proposals are more expansive than those of the Scottish Law Commission. The effect of such disparity will then be considered.