Legislative Guide Research Articles

AMERICAN PRIVATE LAW WRIT LARGE? THE UNCITRAL SECURED TRANSACTIONS GUIDE

AbstractThis article provides a critical evaluation of the main provisions of the UNCITRAL Legislative Guide on Secured Transactions. It examines the Guide in the context of other international and national secured transactions instruments including article 9 of the United States Uniform Commercial Code. The clear objective of the Guide is to facilitate secured financing. It is very facilitating and enabling, and permits the creation of security in all sorts of situations. Security is seen as a good thing, through enhancing the availability of lower-cost credit. The paper suggests that this closeness in approach to article 9 is likely to militate against the prospects of the Guide gaining widespread international acceptance. This is the case for various interlocking reasons including the battering that American legal and financial norms have taken with the global financial crisis.

Acquisition Financing under the UNCITRAL Legislative Guide on Secured Transactions

Acquisition Financing under the UNCITRAL Legislative Guide on Secured Transactions

지적재산권을 활용한 금융거래 법률체계: UNCITRAL 담보거래 입법지침에 따른 담보자산으로서의 지적재산권 : Intellectual property as collateral under the UNCITRAL Legislative Guide on Secured Transactions

This article introduces the UNCITRAL Legislative Guide on Secured Transactions and its Supplement on Security Rights in Intellectual Property, both of which are intended to provide guidance to States with regard to enacting legislation on secured transaction, in particular, regarding intellectual property. Based on the discussions provided therein, this article points to four elements to be included in the legislative framework for intellectual property financing: 1) that it should be a comprehensive regime for movable assets including intellectual property, 2) that it should be possible to create security rights in future intellectual property, 3) that it should provide priority rules for those financing the acquisition of intellectual property and 4) that it should contain rules on the law applicable to security rights in intellectual property. The article concludes that, while these innovative features once included in the legislative framework for intellectual property financing would foster the use of intellectual property as collateral in secured transactions, it is not enough, acknowledging that valuation of intellectual property is a practical barrier. In this context, this article urges the intellectual property community to develop standards for the assessment intellectual property based on the market mechanism with the understanding that secured transactions was, by nature, a risk-adverse transaction.

China's new Enterprise Bankruptcy Law—A great leap forward, but just how far?

AbstractThe closure of many small and medium enterprises (SMEs) following the global financial crisis of 2008 spurred the Chinese government to follow its international counterparts in issuing an economic stimulus package. While it was effective in preventing many financially distressed SMEs from failure by boosting demand for its businesses, in the long run, such SMEs should be rescued through a statutory regime, which affords them temporary protection from creditors and provides them an opportunity to restructure their businesses. In doing so, the premature liquidation of SMEs would be prevented and SMEs with viable businesses but in temporary financial difficulties would be given a chance to succeed again. Although China's new Enterprise Bankruptcy Law (EBL) has shortcomings, it improves upon its predecessor legislation and, since it is still at an infantile stage of development, is bound for further reform. Despite the EBL's success in bringing Chinese corporate bankruptcy laws in line with international standards, full compliance with the UNCITRAL Model Law on Cross‐Border Insolvency and UNCITRAL Legislative Guide on Insolvency Law remains to be seen. In September 2008, the South China Morning Post newspaper reported that the number of (applications for) corporate reorganization and bankruptcy cases had dropped, “leading to widespread speculation there are problems in the law's practical application”.1 This article examines the implementation of the EBL, critiques key aspects of the EBL and argues for a comprehensive assessment of the EBL and for bringing the EBL in full compliance with the international standards on cross‐border insolvency. Copyright © 2010 John Wiley & Sons, Ltd.

Sphere of Application of the UNIDROIT Convention on Substantive Rules for Intermediated Securities and Future Work by UNIDROIT on a Legislative Guide for Emerging Financial Markets

Journal Article Sphere of Application of the UNIDROIT Convention on Substantive Rules for Intermediated Securities and Future Work by UNIDROIT on a Legislative Guide for Emerging Financial Markets Get access José Angelo Estrella Faria José Angelo Estrella Faria Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 15, Issue 2, April 2010, Pages 357–365, https://doi.org/10.1093/ulr/15.2.357 Published: 01 April 2010

The Case for Including Directly Held Securities within the Scope of the UNCITRAL Legislative Guide on Secured Transactions

The Case for Including Directly Held Securities within the Scope of the UNCITRAL Legislative Guide on Secured Transactions

The UNCITRAL Annex on security rights in IP: a work in progress

In 2007, UNCITRAL adopted the Legislative Guide on Secured Transactions (henceforth, the Guide). Currently, the organization is endeavoured in drafting an Annex to the Guide aimed at identifying and resolving the particular issues that may arise when IP rights are the object of the security. The purpose of this project is to provide a legislative model for those countries wishing to reform their secured transaction laws, in such a way as to allow for an efficient employment of IP rights as collateral. Indeed, the growth in value of IP rights brought by the advent of the information society has generated a growing interest worldwide in both offering and taking these assets as security for debt finance. This article describes some of the main issues that are currently being discussed in the development of the Annex and the different solutions under consideration; in particular (i) the interaction between the general security register set out in the Guide and the specialized IP registries; (ii) the ordinary course of business exception and its application to IP licences; and (iii) the choice of law rule for transactions creating a security interests over an IP right.

Creditor Participation in Insolvency Proceedings - Towards the Adoption of International Standards

Effective creditor participation in insolvency proceedings has been widely seen as an essential feature of any well-developed insolvency administration system. This notion has been expressed in different ways in national systems of insolvency law, ranging from principles such as the pari passu rule and the conduct of creditor meetings to decide matters of importance in the insolvency proceedings, to the role of insolvency representatives in such proceedings. The last decade has seen the emergence of a number of multilateral efforts to more clearly articulate insolvency norms or 'best practice' guidelines; these have included such outcomes as the Asian Development Bank’s 2000 Good Practice Standards, the World Bank and International Monetary Fund’s 2005 draft Principles for Effective Insolvency and Creditor Rights Systems and the monumental 2004 UNCITRAL Legislative Guide on Insolvency Law. The emergence of these multilateral statements has recognised the regional and global significance of insolvency laws and the role that they play in providing a foundation for a market economy. This article examines the creditor participation standards evident in this body of international best practice norms. Ultimately, it is argued that creditor participation in insolvency is an essential element in a rule of law based market economy.

Securitization of patents and trade marks: the Polish perspective in comparative perspective

This article examines legal issues of securitization of patents and trade marks in Poland. The security right, which can be established in Poland in this case, is—as in many continental jurisdictions—the pledge. The author aims to present the topic against a comparative background and refers to other continental jurisdictions, mainly Germany and France, as well as to the UNCITRAL Legislative Guide on Secured Transactions and Annex to the Guide dealing with security interests in IP. The article discusses specific problems that arise in relation to registrable IPRs as objects of securitization. Patents and trade marks were chosen as the most representative of this category. Copyright, which is not registrable in Poland, is left outside the scope of the article. Two issues, which seem to be of major importance, are examined in more depth. First, this is the status of registrable IPRs as objects of securitization. Special focus is given to securitization of patent and trade mark applications. The second issue is the process of securitization of registrable IPRs, including the role of IPR registers in this process. The legal framework pertaining to securitization of IPRs in Poland has, as in many jurisdictions, certain deficiencies. The article seeks to offer solutions to problematic issues under current law. Special attention is given to recent legislative changes in Polish law, which relate to securitization of patents and trade marks. The article also contains some general thoughts concerning the role of IPR registers in securitization of IP and their relations with general registers of security rights in the light of Polish law and the UNCITRAL Legislative Guide on Secured Transactions.

Legitimation and Global Lawmaking

In late 2004, the United Nations Commission on International Trade Law (UNCITRAL) concluded a five-year project to produce global standards on corporate bankruptcy law for national law-makers. Because insolvency law is so culturally contextualized, skeptics viewed any global consensus as either impossible to achieve or likely to result in language so vague as to be useless. Yet in a surprisingly short time, UNCITRAL produced its Legislative Guide on Insolvency Law. Even before completion of the Guide, international organizations, as well as reformers from advanced and developing economies, began using its provisions for standard-setting and national law reform. UNCITRAL's Legislative Guide presents more than a simple success story; adoption of the Legislative Guide on Insolvency Law presents a vantage point for generating a theory of conditions under which global organizations can resolve a central paradox of global lawmaking. The paradox is straightforward: international organizations must be legitimate to be effective; but effectiveness is subverted by the very process of legitimation. If law-making organizations are not considered legitimate, the principles or rules articulated by them will be less persuasive and hence less binding. In turn, a lower probability of compliance or adoption by nation-states will reduce global convergence around the norms. But to become legitimate through representation, international organizations must incorporate divergent interests, which at best complicate and at worst thwart consensual lawmaking. It is therefore both a scholarly challenge and a pragmatic necessity to understand what resolutions of this tension are possible in global lawmaking forums.

The UNCITRAL Draft Legislative Guide on Secured Transactions

Journal Article The UNCITRAL Draft Legislative Guide on Secured Transactions Get access Spiros V. Bazinas Spiros V. Bazinas Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 10, Issue 1-2, January-April 2005, Pages 141–154, https://doi.org/10.1093/ulr/10.1-2.141 Published: 01 January 2005

The UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects

The UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects

Congressional Practice and Procedure: A Reference, Research, and Legislative Guide. By Charles Tiefer. Westport: Greenwood, 1989. 1,046p. $95.00.

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The Council on Governmental Policy and Law

THE COUNCIL on Governmental Policy and Law met twice in 1980. Its tasks primarily centered on reviewing the issues involving the right of involuntarily committed psychiatric patients to refuse treatment, as well as early drafts written by the Task Force to Develop Model Legislation on Commitment. This task force, chaired by Scott H. Nelson, M.D., recently submitted its recommendations for model legislation, and they are now being reviewed by the Council. A second component, the Task Force on the Role of Psychiatry in the Courts, has been established. This task force, chaired by Seymour Halleck, M.D. , is charged with delineating how psychiatrists, as experts in the courtroom, should function when conducting psychiatric examinations for criminal procedures. Such examinations would be ndevant to the sentencing process, including the death penalty. In 1980 Clifford Stromberg, Esq., ofthe law firm Arnold & Porter, was hired as a consultant to draft model legislation and position papers on a variety of psychiatric and legal topics addressed in the Mental Health Law Project’s Legislative Guide. The topics include civil commitment, advocacy, standards in human rights, zoning, confidentiality, guardianship, treatment of minors, right to education, and state-