Attachment/Creation of a Security Interest In: H. EIDENMUELLER, E.-M. KIENINGER. The Future of Secured Credit in Europe

The contribution analyses the rules on the creation of security rights contained in the (at the time) Draft UNCITRAL Legislative Guide on Secured Transactions. It first presents the basic general assumptions on which such rules are based and then offers an assessment of their compatibility with existing European secured transactions regimes, with particular regard to the prevailing approach found in continental legal systems. A number of specific issues are dealt with: differentiation between “attachment” (effectiveness inter partes) and “perfection” (effectiveness as against third parties); the influence of a “notice-filing system” as opposed to a “transaction-based system” of registration; the recognition of title-based security devices; the need to provide rules for acquisition security rights and retention of title instruments (with a comparative discussion of existing national and uniform models). The conclusion is that the UNCITRAL rules on the creation of security rights over movables not only are compatible with modern European legal systems, but, in addition, should be considered a good model for a future common European secured transactions' law, since they represent a marked improvement in efficiency with respect to more traditionally oriented solutions.[...