Book Reviews & Notices
current position under German law based on co-ownership analysis. Dr Hans
KUHN, General Counsel of the Swiss National Bank and Chairman, first, of the
commission of experts that prepared the draft Swiss Act on Book-Entry Securities
and, now, of the UNIDROIT Committee of governmental experts tasked with
preparing the draft Convention, introduces the Swiss draft. Switzerland plays a
leading role in the international reform movement because, on the one hand, its
lex lata is firmly rooted in a proprietary analysis of the account holder’s
(investor’s) position as is, for example, that of France, Germany, Japan as well as
many other countries of the civil law legal family, and, on the other hand, it
reacts in a sensitive way to international market participants’ desire to understand
the law in force in prime financial centres without costly legal opinions for major
transactions. Professor Ulrich NOACK addresses the investors’ position in their
relationship to issuers and intermediaries and appeals to the legislator properly
and functionally to re-order that triangle. Lastly, Dr Axel NAWRATH, formerly with
Deutsche Börse AG, the operator of the Frankfurt Stock Exchange, and currently
Under-Secretary at the German Ministry of Finance, presents an in-depth analysis
of existing business models for clearing and settlement, in particular the vertical
model.
A panel discussion (in English) with representatives of the European Central
Bank, the European Commission, two global financial institutions (Citigroup and
Deutsche Bank) as well as one of the leading international Central Securities
Depositories (Euroclear Bank) concluded this interesting conference.
In summation, a focused and highly informative conference whose papers and
proceedings will not fail to influence the reform discussion ahead both in
Germany and beyond.
(H.K.)
Bénédict Foëx, Luc Thévenoz, Spiros V. Bazinas (Eds.), Réforme des sûretés
mobilières, Les enseignements du Guide législatif de la CNUDCI; Reforming Secured
Transactions, The UNCITRAL Legislative Guide as an Inspiration, Schulthess Médias
Juridiques SA, Genève, Zurich, Bâle, 2007, Publications du Centre de droit bancaire et
financier, pp. 214, ISBN 978-3-7255-5405-8.
In the course of the first part of its fortieth session, from 25 June to 12 July 2007,
UNCITRAL considered the adoption of the UNCITRAL draft Legislative Guide on
Secured Transactions (the Guide), a landmark initiative in the promotion of the
international harmonisation of the legal framework for secured transactions.1 On
1
See <www.uncitral.org>. Adoption of the Guide is expected during UNCITRAL’s
resumed fortieth session, 10-14 December 2007.
402
Unif. L. Rev. 2007
Comptes rendus bibliographiques
7 June 2006, the Centre for Banking and Financial Law of the University of
Geneva organised an international colloquium both to promote the Guide and to
study the lessons that could be drawn from it for a revision of Swiss law on
secured transactions. This colloquium resulted in the above publication, which
contains contributions by several international and Swiss specialists.
This publication appeals to a broad, international audience, even though it is
based on a preliminary version of the Guide distributed on 17 July 2006.2 It
contains a number of general analyses dealing with the contents of the Guide
and the reasons underlying its development. Moreover, the papers addressing
Swiss law reform are generally very accessible and shed light on the policy
choices that have been made in the Guide.
The first three contributions, by BAZINAS, MCCORMACK and FOËX respectively, are
of a more general nature. Bazinas provides a comprehensive framework for
discussions in the rest of the book by outlining the contents of the Guide, while
pointing out that one of the main goals of the Guide is enhancing access to
cheaper credit. McCormack places the Guide in the context of the philosophy
underlying other international legislative initiatives relating to secured transactions. He draws attention to a number of policy choices made in the Guide,
focusing in particular on two controversial issues relating to the position of
unsecured creditors and acquisition financing devices. Likewise, Foëx raises
questions about the validity of policy choices in the Guide for Swiss law,
particularly where these relate to the so-called functional approach, the coming
into existence of a security interest by agreement between the grantor and the
secured creditor (but without any publicity), and fiduciary and outright
assignments of claims.
In another article, Foëx outlines the different techniques envisaged in the Guide
to render security interests opposable to third parties; of these, he deals primarily
with the publication of security interests in a registry. In connection therewith, he
examines the issue of priority and indicates which of the solutions envisaged in
the Guide he considers relevant for a reform of Swiss law. In a related, somewhat
less accessible article that might be of more interest to Swiss lawyers, EIGENMANN
places the Guide’s approach in relation to publication and opposability in a
Swiss law context.
The second major topic, to which three papers are devoted, is default, enforcement and insolvency. SNIJDERS argues that the Guide’s provisions in this respect
strike a fair balance between the interests of the secured creditor, the provider of
security and other parties involved. Moreover, he suggests that a number of
definitions and provisions be reconsidered before final adoption of the Guide.
JEANDIN provides a detailed and qualitative analysis of the similarities and
2
See the version adopted during the eleventh session of UNCITRAL Working Group VI
(Security Interests), No. A/CN.9/WG.VI/WP.29.
Rev. dr. unif. 2007
403
Book Reviews & Notices
differences of the approaches of the Guide and Swiss law in respect of default,
enforcement and insolvency. AESCHLIMANN does the same, focusing mainly on
the interests of secured creditors and the importance of party autonomy, which in
his view are the crucial factors guaranteeing the availability of credit, without
paying too much attention to the interests of providers of security and their other
creditors.
The book concludes with two contributions that examine the Guide from the
perspective of banks. AFFAKI illustrates that the Guide is based on an equal
treatment of secured creditors, whether they be banks, suppliers or others. He
also shows that, at the same time, it takes into account banking practice by
setting out specific provisions in relation to security interests in respect of assets
typically generated by banks, such as funds credited to a bank account or
proceeds following from an independent undertaking. GOTTRAU provides an
interesting and balanced analysis of the principal needs of banks in a reform of
Swiss law and the inspiration that can be drawn in this respect from the Guide.
The necessity of reforming Swiss law on secured transactions is supported by all
Swiss contributors to this volume. There is also a consensus that the Guide is an
important source of inspiration in this respect, however with the admonition that
it should not be blindly followed and that it should, in certain cases, be adapted
to the Swiss legal tradition. While generally applauding the initiative taken by
UNCITRAL, several authors do not refrain from criticising the Guide. All in all,
this book sheds light on the Guide from different perspectives and therefore
contains valuable reference material for those interested in law reform relating to
secured transactions.
Thomas Keijser *
*
Research Officer, UNIDROIT.
B. Zeller, CISG and the Unification of International Trade Law, RoutledgeCavendish, Abingdon, 2007. Hardback, xi + 116. ISBN10: 1-84568-046-4; ISBN13:
978-1-84568-046-6.
The main purpose of this short volume, as stated by its author, is to show that the
unification of law is desirable and serves a useful purpose: “[…]
internationalisation or globalisation has in effect forced the law to take a more
global approach. As trade increasingly crosses borders so by necessity has the
law. Transplantations, the drafting of model laws and ratification of conventions
are the responses of legal systems to internationalisation and are occurring at an
increased pace.” The reason the author examines the United Nations Convention
on Contracts for the International Sale of Goods (CISG) is that in its Article 7 the
Convention “sets the borderline of influence between the CISG and the
404
Unif. L. Rev. 2007