BOOK REVIEWS - SECURED TRANSACTIONS LAW REFORM IN AFRICA
Professor of International Business Law
University of Leeds
SECURED TRANSACTIONS LAW REFORM IN AFRICA. Marek Dubovec, Executive Director of the Kozolchyk National Law Center, Tucson, Arizona, and Louise Gullifer, Rouse Ball Professor of English Law, University of Cambridge. Hart, Oxford
(2019) lxxvi and 456 pp, and 20pp Index. Paperback £53.99.
SECURED TRANSACTIONS LAW REFORM IN ASIA: Principles, Perspectives and Reform. Edited by Louise Gullifer, Rouse Ball Professor of English Law, University of Cambridge, and Dora Neo, Associate Professor and founding Director of the Centre for Banking & Finance Law, Faculty of Law, National University of Singapore. Hart, Oxford
(2021) xlix and 476 pp, and 26 pp Index. Hardback £120.
These two books come thoroughly recommended. They deserve to be read by anybody with an interest in commercial law reform in general and secured transactions law reform in particular.
They are the second and third books in a series looking at secured transactions law reform across the world. A fourth book in the series is planned on the experience in this regard of Central and South America. The central unifying thread in the books thus far has been Louise Gullifer. She has very much taken on the mantle of Professor Sir Roy Goode and driven the process of secured transactions law reform in the UK. In her “day job” she is Rouse Ball Professor of English Law at the University of Cambridge. But she has also taken over from Roy Goode as Executive Director of the Secured Transactions Law Reform Project (https://securedtransactionslawreformproject.org/). This project seeks to reform UK law in line with a Law Commission project from the 2000s and building on reform statutes in North America and Australasia
A different secured transactions law reform project has been led by Richard Calnan from the City Solicitors’ Financial Law Society (www.citysolicitors.org.uk/storage/2020/03/Note-for-CLLS-Website-re-Secured-Transactions-Code.pdf). The Financial Law Society project advocates an approach which is rooted more in traditional common law principles. It aims to simplify and modernise the law of security in England and Wales in line with these principles and one that is less influenced by American norms. The lack of a clear statute-like code in this area may be one reason why English law has missed out internationally as a beacon for influence and reform.
Be that as it may, most reform efforts internationally build upon Art.9 of the US Uniform Commercial Code. The US Art.9 takes a functional approach towards security and treating in a broadly similar way security instruments traditionally so called, such as the mortgage, charge, pledge and lien, and functionally similar legal devices, such as finance leases, retention of title clauses and the assignment of receivables. Article 9, and systems inspired by it, are based on easy to create security and impose a comprehensive registration obligation as a general condition of third-party effectiveness. Security can be created over all, and every, kind of property to secure every type of obligation. While the registration obligation is comprehensive, it is based on notice filing providing only a minimum of information. It alerts the searcher of the register to the possible existence of security and the need to make further inquiry rather than providing detailed information. There is no verification of information in the registration process.