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Cross-Border Security and Insolvency

Cross-Border Security and Insolvency

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Prudent creditors seek to protect themselves against the risk of their debtor's insolvency by taking security. With the growth of the multinational corporation and the increasing globalization of the market-place, cross-border insolvency has become a major commercial risk. Much academic, judicial, and legislative consideration has been given to this problem, and international conventions and major legal textbooks have been devoted to the subject. Less consideration, however, has been given to the connected and equally important, but possibly more intractable, issue of cross-border security. This book should prove a major contribution to understanding the nature of the problems involved, without which even tentative solutions are unlikely to be found.
It owes its origin to an important colloquium held at St John's College, Oxford in April 2000. The distinguished speakers came from different jurisdictions, England, the United States, Germany, and France, and included bankers and practitioners as well as academics. They contributed valuable papers on their own domestic security laws and their domestic choice of law rules. These expose the many problems which remain unsolved even in domestic laws and for which conflicting solutions have been proposed.
The problems are exacerbated by two features which are inherent in the subject. The first is that, because of its relationship with insolvency, security law is heavily influenced by policy considerations, and these tend to differ from country to country. The second is that, with diverse investment portfolios increasingly held in electronic form by intermediaries and the arrival of instantaneous electronic commerce, the development of new intangible and non-territorial assets and securities is preceding apace. New forms of property require new conditions of ownership. The old analogy with tangible movables had already broken down; it is entirely out of place in today's global market-place.
Perhaps we shall live to see a new form of international security, a genuine floating charge but one floating in cyberspace and owing all allegiance to no single legal system but recognized by all. Some such concept will be needed to meet the challenges of the new age when we bring to reality the additional Chapter of the Report of the Cork Committee on Insolvency, written in jest by the secretariat 20 years ago and never published, entitled "Extra-Terrestrial Insolvency".