Could Continental Europe Adopt a Uniform Commercial Code Article 9-Type Secured Transactions System? The Effects of the Differing Legal Platforms

Abstract

With the entry into force of the Australian Personal Property Securities Act 2009 (Cth) in 2012, the Unitary Model of secured transactions law on personal property became part of the legal system of another major economy of the world. Australia joined the United States of America (the source-jurisdiction), Canada and New Zealand. Given the success of the Unitary Model, it is natural to question whether a similar breakthrough is to be expected in Europe as well. From a legal perspective, the key dilemma is whether the Continental European civil law systems — the majority of Europe’s jurisdictions — are compatible with the Unitary Model at all. This depends to a great extent on the inherited yet differing legal platforms — the concepts, principles and rules characteristic of common law or civil law systems. This article aims to exemplify the discrepancies that might prove to be obstacles to transplanting the Unitary Model and which still have not yet been properly analysed in comparative scholarship.

Keywords: Australian PPSL reform, secured transactions, civil law, insolvency, Draft Common Frame of Reference