Beszélhetünk-e a zálogjogi rendszerek versenyéről?

TitleBeszélhetünk-e a zálogjogi rendszerek versenyéről?
Publication TypeJournal Article
AuthorsTajti, T.
Journal titleIustum Aequum Salutare

Is there a Global Competition of Secured Transactions Laws?


While it has by now become commonly known, not only in Hungary and in the region but also in a growing number of jurisdictions worldwide, why are the reforms of secured transactions law of heightened importance, it is less known that, directly or indirectly, it is the so-called ’unitary concept of security interests’ enshrined in Article 9 of the Uniform Commercial Code of the United States of America has been increasingly the major source of inspirations. This model impacted most of the projects of various international organizations that were focused on this branch of law, including the most important recent vintage private law initiative of Europe, the Draft Common Frame of Reference,” Book IX of which (and partially also Book X on Trusts) came forward with a similar unitary model (though the commentaries do not mention any connection with the American model).
At the same time, German law – that still ranks one of the major models in Europe – remained completely immune from these trends. As a result, German secured transactions law (Recht der Kreditsicherheiten) is a model offering solutions that are in many key respects the exact opposite of the American ones as a consequence of what it may be looked upon as the rival of the unitary model. As opposed to German law, English law, as another leading legal system, is far from being indifferent: the debate whether to embark on reforms along the lines of the unitary model (and to follow the suit of Australia, the Canadian provinces and New Zealand) has been ongoing for more decades now. For the time being, the City of London – preferring the status quo and the ’if not broken, don’t mend it’ philosophy – has prevailed against a group of academics.
In the light of these developments, this article is an attempt to answer the question whether there is a genuine competition among various national secured transactions law models given the numerous international projects and national law reforms? And if yes, is it possible to identify, and based on what criteria, which are the competing models? The article casts a light also on the possible economic repercussions of the competition.
As the best illustration of the importance of the economy-secured transactions reform nexus suffice to point to the changed Chinese stance according to which it is, neither German, nor continental European (civil) law, the only source of inspirations for Chinese law-makers anymore; it is rather the model that could generate the most economic benefits for China. Consequently, it is not only capital markets and securities regulation but also bankruptcy and secured transactions law with respect to which the law of the United States is increasingly winning the ground in China. Having the increased economic and political importance of China in sight, it should come natural to presume that it should not be irrelevant to Europe either which secured transactions model is going to prevail in China and globally in the not so distant future.

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