The Collateral Directive and Financial Collateral: Ownership of, or entitlement to, collateral?

Abstract

Abstract It is controversial if incorporeal moveables (or choses in action) can be the object of property rights. The Collateral Directive arguably attempts to take the middle-ground in this debate. It acknowledges that a person may have either ‘full ownership of’, or 'full entitlement' to, financial collateral, which are conceptualised as intangibles. The approach adopted by the Directive throws up some questions: Is there a difference between owning or being entitled to collateral? If there is a difference, does this matter? The article first highlights the underlying controversy between these two concepts: which arises because of the different conceptions of real rights, or right in rem, and the need to protect the boundary between real and personal rights. The article then argues that although ‘owning’ and ‘entitlement’ are different concepts, there are also functional similarities between both concepts which arguably the Directive extends further than necessary.