Survey of International Commercial Law Developments During 2002

Transcription

1 Survey of International Commercial Law Developments During 2002 By Sandra M. Rocks and Kate A. Sawyer* This Article surveys the significant progress made by the international community during 2002 in its efforts to modernize and harmonize international commercial law. The international bodies spearheading these efforts include the United Nations Commission on International Trade Law (UNCITRAL or the Commission ), the Organization of American States (OAS), the Hague Conference on Private International Law (the Hague Conference ) and the International Institute for the Unification of Private Law (UNIDROIT). UNCITRAL acts primarily through its six working groups, which typically meet bi-annually and are responsible for the substantive preparatory work on topics approved by the Commission. The OAS is a regional international organization for states in the Western Hemisphere and since 1975 has sponsored five Specialized Conferences on Private International Law (each a CIDIP ). The most recent CIDIP was held in February 2002 and is discussed below. The Hague Conference holds Plenary Sessions every four years. Special Commissions consisting of governmental experts prepare the preliminary drafts of the private international law conventions that are eventually discussed and adopted at a Plenary Session. UNIDROIT uses study groups to prepare preliminary draft conventions. The Secretariat then convenes a committee of governmental experts (representatives of UNIDROIT Member States) to prepare the final draft of the Convention for submission to a diplomatic Conference. A significant highlight in the past year was the adoption by the Hague Conference of the Convention on the Law Applicable to Certain Rights in Respect of *Sandra M. Rocks is Counsel and Kate A. Sawyer is an associate at Cleary, Gottlieb, Steen & Hamilton, New York, New York. Ms. Rocks currently chairs the International Commercial Law Subcommittee of the U.C.C. Committee of the ABA Section of Business Law and is a past Chair of the Subcommittee on Investment Securities of the U.C.C. Committee. Ms. Rocks participated on behalf of EMTA (formerly the Emerging Markets Traders Association) in drafting sessions at The Hague in connection with preparation of the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary discussed below. For further information about the matters covered by this Survey, contact Sandra M. Rocks or Kate A. Sawyer, Cleary, Gottlieb, Steen & Hamilton, One Liberty Plaza, New York, NY (tel. (212) or srocks@cgsh.com or ksawyer@cgsh.com). The authors would like to thank the following people for their assistance in the preparation of this Survey: Boris Kozolchyk at the National Law Center for Inter-American Free Trade, Curtis R. Reitz, the Biddle Professor of Law at the University of Pennsylvania Law School and Neil B. Cohen, Professor of Law at the Brooklyn Law School. 1657

2 1658 The Business Lawyer; Vol. 58, August 2003 Securities Held with an Intermediary (the PRIMA Convention ). 1 The PRIMA Convention makes a significant step toward clarifying the law governing ownership and collateral rights in investment securities held through securities intermediaries. In addition, UNIDROIT launched in 2002 a new project to develop substantive law with respect to securities held through intermediaries, 2 complementing the PRIMA Convention. In Latin America, the highlights occurred principally in the area of secured transactions, with the adoption of the Model Inter- American Law on Secured Transactions, 3 promulgated during 2002 by the OAS, and being considered for enactment by several Latin American countries. With respect to U.S. ratification, the authors understand that various efforts are in motion to move toward U.S. ratification of the PRIMA Convention, the UNCITRAL Convention on Assignment of Receivables in International Trade, the UNIDROIT Mobile Equipment Convention, and the UNIDROIT Convention on International Financial Leasing (opened for signature in 1988 and entered into force in 1995). UNCITRAL WORKING GROUP I(PRIVATELY FINANCED INFRASTRUCTURE PROJECTS) During 2002, Working Group I (Privately Financed Infrastructure Projects) ( Working Group I ) continued its efforts to draft model legislative provisions to compliment its Legislative Guide on Privately Financed Infrastructure Projects that the Commission adopted in July Draft model legislative provisions were initially proposed to the Commission in The proposal suggested that model legislative provisions would be useful because they would provide concrete guidance for domestic legislators to create a legal framework favorable to private investment in infrastructure development. 5 Further support for model legislative provisions was expressed at the Colloquium on Privately Financed Infrastructure: Legal Framework and Technical Assistance co-sponsored by the Public-Private Infrastructure Advisory Facility that took place in July During the September 2002 meeting, Working Group I approved a revised version of the model legislative provisions for circulation to States for comment 1. The acronym PRIMA stands for the place of the relevant intermediary approach which is the underlying choice of law rule adopted by the PRIMA Convention. The text of the PRIMA Convention is available at (last visited July 2, 2003). 2. See infra note 51 and accompanying text. 3. Model Inter-American Law on Secured Transactions, Sixth Inter-American Specialized Conference on Private International Law (CIDIP VI), 3d Sess., CIDIP-VI/RES.5/02, OEA/ser. K/XXI.6 (Feb. 27, 2002), available at (last visited July 2, 2003). 4. The Commission adopted the UNCITRAL Legislative Guide on Privately Financed Infrastructures Projects at its 33rd Session (2000). See U.N. Doc. A/CN.9/SER.B/4 (2001). The text of the Legislative Guide as well as other UNCITRAL documents may be found on the UNCITRAL Web site, (last updated June 27, 2003). 5. Draft Addendum to the UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects, Note by the Secretariat, Working Group on Privately Financed Infrastructure Projects, 5th Sess., at 2, U.N. Doc. A/CN.9/WG.I/WP.29 (2002), available at wg_1/wgl-wp29-e.pdf.

3 Survey of International Commercial Law Developments During and to the Commission for its review and adoption in July The model provisions provide specific rules covering a wide range of activities associated with infrastructure development, including: rules governing the selection of the concessionaire; bidding procedures and consortia participation; procedures for requesting and evaluating proposals; negotiation of concession agreements; construction and operation of infrastructure; and duration, extension, and termination of the concession agreement. UNCITRAL WORKING GROUP II (INTERNATIONAL ARBITRATION AND CONCILIATION) During 2002, two primary issues dominated the agenda of Working Group II (International Arbitration and Conciliation) ( Working Group II ): (i) the requirement of the written form for the arbitration agreement, and (ii) the powers of an arbitral tribunal to grant interim measures of protection. 7 With regard to the former issue, Working Group II prepared a revised article 7, paragraph (2) of the UNCITRAL Model Law on International Commercial Arbitration. During 2003, Working Group II will continue its discussion of this draft revision, including coordination of the revision with the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 8 With regard to the latter issue, in October 2002, the United States submitted a proposal to revise article 17 of the model law. 9 The U.S. proposal was in response to concerns by members of Working Group II that no uniform rules exist addressing interim measures of protection applicable to parties to an arbitration agreement. 10 In October 2002, Working Group II discussed both the U.S. proposal and a proposal presented by the Secretariat. Based on these discussions, Working Group II has prepared a revised version of article 17 of the model law. 11 UNCITRAL WORKING GROUP III (TRANSPORT LAW) Working Group III (Transport Law) ( Working Group III ) met in April and September of 2002 to further its efforts to prepare a draft instrument on the 6. The draft model legislative provisions on privately financed infrastructure projects are set forth as an Annex to the Report of the Working Group on Privately Financed Infrastructure Projects on the work of its fifth session (September, 2002). Report of the Working Group on Privately Financed Infrastructure Projects on the work of its fifth session, UNCITRAL, 36th Sess., Annex, at 54, U.N. Doc. A/ CN.9/521 (2002). 7. Provisional Agenda, UNCITRAL, Working Group II (Arbitration and Conciliation), 38th Sess, at 2 3, U.N. Doc. A/CN.9/WG.II/WP.122 (2003). 8. Id. at See Arbitration: interim measures of protection, Proposal by the United States of America, Note by the Secretariat, UNCITRAL, Working Group II (Arbitration and Conciliation), 37th Sess., U.N. Doc. A/CN.9/WG.II/WP.121 (2002). 10. International commercial arbitration: Possible future work: court-ordered interim measures of protection in support of arbitration, scope of interim measures that may be issued by arbitral tribunals, validity of the agreement to arbitrate, Report of the Secretary-General, UNCITRAL, Working Group on Arbitration, 33d Sess., at 8 9, U.N. Doc. A/CN.9/WG.II/WP.111 (2000). 11. For the revised draft of article 17 of the model law, see Settlement of commercial disputes, Interim measures of protection, Note by the Secretariat, UNCITRAL, Working Group II (Arbitration and Conciliation), 38th Sess., at 2, U.N. Doc. A/CN.9/WG.II/WP.123 (2003).

4 1660 The Business Lawyer; Vol. 58, August 2003 international carriage of goods. At its April 2002 meeting, Working Group III expressed strong support for expanding the scope to door-to-door transport noting the growing number of practical situations where transport (in particular transport of containerized goods) was operated under door-to-door contracts. 12 In light of the expanded scope of the project, Working Group III will seek participation from various international organizations involved in land transportations. The Commission also advised Working Group III to coordinate its work with Working Group IV on Electronic Commerce with respect to dematerialized transport documentation. 13 Working Group III met again in April 2003 to continue its consideration of draft provisions. UNCITRAL WORKING GROUP IV (ELECTRONIC COMMERCE) Working Group IV (Electronic Commerce) ( Working Group IV ) continued its progress toward creating technology neutral laws applicable to varying technology standards. Working Group IV met in March and October of 2002, during which time it continued to discuss barriers to electronic commerce in existing international conventions and trade-related instruments, and began to deliberate a draft convention on electronic contracting. 14 With respect to the draft convention on electronic contracting, Working Group IV debated to what extent the convention should cover issues beyond contract formation (such as electronic communication in the performance and termination of contracts) and issues of substantive contract law. 15 Initially, Working Group IV decided to exclude consumer transactions and issues that are not specifically related to electronic commerce or to the use of electronic communications in the context of commercial transactions although recognizing that a strict separation between mechanical and substantive issues in the context of electronic commerce was not always feasible or desirable. 16 Working Group IV met in May 2003 to continue its deliberations on a draft convention on electronic contracting and received an updated report from the Secretariat on a survey of legal barriers to electronic commerce in existing international trade-related instruments. During 2002, Thailand became the first State to adopt legislation based on the UNCITRAL Model Law on Electronic Signatures, 17 which the Commission adopted in July This model law provides for legal certainty with respect to electronic signatures by establishing a presumption that treats electronic signatures equivalent to hand-written signatures where such electronic signatures meet certain criteria of technical reliability. 12. See Provisional agenda, UNCITRAL, Working Group III (Transport Law), 11th Sess., at 4, U.N. Doc. A/CN.9/WG.III/WP.24 (2002). 13. Id. 14. See Report of the Working Group IV (Electronic Commerce) on the work of its fortieth session, UNCITRAL, 36th Sess., U.N. Doc. A/CN.9/527 (2002). 15. Id. at Id. 17. See UNCITRAL, Status of Conventions and Model Laws, available at (last modified June 26, 2003).

5 Survey of International Commercial Law Developments During UNCITRAL WORKING GROUP V(INSOLVENCY LAW) Working Group V (Insolvency Law) ( Working Group V ), which was created at the suggestion of Australia to the Commission in 1999, organized the UNCI- TRAL/INSOL/IBA Global Insolvency Colloquium in 2000 in order to coordinate its work with other organizations including the World Bank, the International Monetary Fund, the Asian Development Bank, INSOL International (an international federation of insolvency professionals), and Committee J of the Section on Business Law of the International Bar Association. 18 In August 2001, December 2001, May 2002, and again in December 2002, Working Group V met to consider a draft model legislative guide on corporate insolvency. Working Group V expects to present the draft legislative guide to the Commission for preliminary consideration during 2003 and to have completed a version for final adoption during As of March 2003, Eritrea, Japan, Mexico, South Africa and Montenegro have adopted the UNCITRAL Model Law on Cross-Border Insolvency, which the General Assembly approved in In the United Kingdom, section 14 of the Insolvency Act of 2000 will implement this model law when the Department of Trade and Industry publishes the statutory instrument that will provide for such implementation. 21 In the United States, proposed bankruptcy legislation, which still remains pending, includes amendments based on this model law to address various issues relating to foreign insolvency. 22 UNCITRAL WORKING GROUP VI (SECURITY INTERESTS) In 2001, the Commission established Working Group VI (Security Interests) ( Working Group VI ) with the mandate to develop an efficient legal regime for security rights in goods involved in a commercial activity, including inventory. 23 The Commission also recommended that a colloquium be held before the first meeting of the working group to consult with representatives of the relevant practice and industry. 24 The UNCITRAL-CFA International Colloquium on Secured Transactions was held in March 2002 and was attended by practitioners and representatives from various international organizations and governments. 25 The colloquium participants debated various issues, including the types of transactions to be covered and whether the principles should provide for the estab- 18. See Provisional Agenda, UNCITRAL, Working Group on Insolvency Law, 24th Sess., at 3, U.N. Doc. A/CN.9/WG.V/WP.53 (2001). 19. See Provisional agenda for twenty-eighth session of Working Group V, UNCITRAL, Working Group V (Insolvency Law), 24th Sess., at 3, U.N. Doc. A/CN.9/WG.V/WP.65 (2002). 20. See UNCITRAL, supra note Insolvency Act, 2000, ch. 39, 14 (Eng.). 22. See Bankruptcy Abuse Prevention and Consumer Protection Act, H. R. 975, 108th Cong (2003). 23. Security Interests, Report on UNCITRAL-CFA international colloquium on secured transactions: Report of the Secretary-General, UNCITRAL, Working Group VI (Security Interests), 1st Sess., at 2, U.N. Doc. A/CN.9/WG.VI/WP.3 (2002). 24. Id. 25. Id.

6 1662 The Business Lawyer; Vol. 58, August 2003 lishment of a notice filing system. 26 The Commission advised Working Group VI that, in light of the significant impact of modern secured credit laws on the availability and the cost of credit, work should be undertaken to prepare a set of principles with a legislative guide. 27 Given the varying policies of States, the Commission noted that a set of principles with a legislative guide that would include legislative recommendations rather than a rigid model law would be more effective. 28 Working Group VI met in May and December of 2002 and March of 2003 and discussed the first preliminary draft Guide of Secured Transactions prepared by the Secretariat. 29 This guide covers security interests in goods involved in a commercial activity, including inventory, and will include legislative recommendations. It will not cover investment securities (security interests in securities are already being addressed by UNIDROIT) or intellectual property. Working Group VI expects to meet again in September UNCITRAL RECEIVABLES FINANCING In 2001, the United Nations General Assembly adopted the Convention on the Assignment of Receivables in International Trade (the Convention ). 30 The Convention remains open for signature by States for a two-year period through December 2003 and open for accession thereafter. 31 The Convention will enter into force six months following ratification, acceptance, approval, or accession of the Convention by five States. 32 As of March 2003, Luxembourg is the only State to have signed the Convention 33 but several additional countries are expected to sign shortly. UNCITRAL is expected to issue commentary further explaining the provisions of the Convention in spring or summer of UN CENTRE FOR TRADE FACILITATION AND ELECTRONIC BUSINESS (UN/CEFACT) UN/CEFACT, hosted by the United Nations Economic Commission for Europe (UNECE), has developed over thirty major trade facilitation recommendations over the last twenty years. 34 UN/CEFACT focuses on establishing and maintaining global standards for the conduct of trade facilitation and ebusiness. 35 In May 26. Id. at See Report of Working Group VI (Security Interests) on the work of its second session, UNCITRAL, 36th Sess., at 3, U.N. Doc. A/CN.9/531 (2003). 28. Id. at Id. 30. G.A. Res. 56/81, UNCITRAL, 56th Sess., Agenda Item 161, U.N. Doc. A/Res/56/81 (2002). 31. United Nations Convention on the Assignment of Receivables in International Trade, Dec. 12, 2001, art. 34 [hereinafter Convention]. The text of the Convention is set forth in G.A. Res. 56/81. See supra note Convention, supra note 31, art See UNCITRAL, supra note UN/CEFACT s New Structure: A Success, available at press/forum_article_10_02.pdf (last visited July 2, 2003). 35. Id. at2.

7 Survey of International Commercial Law Developments During , UN/CEFACT approved a new structure for its working groups. The group responsible for developing proposals for more effective legal processes and procedures is the Legal Group (formerly the Legal Working Group). The Legal Group met three times during Its current efforts include online dispute resolution, cross-border certification (e-signatures), legal issues related to ebxml, and legal issues related to intellectual property. 36 ORGANIZATION OF AMERICAN STATES MODEL INTER-AMERICAN LAW ON SECURED TRANSACTIONS In February 2002, the Plenary Session of the sixth Inter-American Specialized Conference on Private International Law (CIDIP-VI) approved the Model Inter- American Law on Secured Transactions. 37 This model law is a civil law version of the key concepts and principles of Article 9 of the Uniform Commercial Code (U.C.C.) and is currently being considered for enactment by several Latin American countries. It is also serving as a model for the UNCITRAL Guide of Secured Transactions that is currently being prepared by the UNCITRAL Working Group VI (security interests). 38 This model law also incorporates an appendix on electronic transactions, especially applicable for digital signatures and certificates. The appendix (Inter-American Rules for Electronic Documents and Signatures or IA- REDS) is designed to facilitate electronic lending and filing of financing statements as well as the electronic issuance of registry certificates throughout the Western Hemisphere. This appendix should further facilitate the modernization of commercial registries throughout Latin America and especially in Central America. OTHER INTER-AMERICAN INTERNATIONAL LAW PROJECTS The Deputy General Counsel of the Federal Reserve Bank of New York, the National Law Center for Inter-American Free Trade (NLCIFT), and the Legal Advisor s Office of the U.S. Department of State are currently coordinating efforts to create a treaty that will address the law of investment securities held by indirect holders (whether in dematerialized or material form) for adoption by the Inter- American countries. Others participating in this effort include the Securities and Exchange Commission, the Commodity Credit Corporation, the Depository Trust and Clearing Corporation and a select group of Latin American public and private sector institutions. The coordinators and participants are currently identifying the disparities between the U.S. and the Latin American approaches to the commercial law governing investment securities. Once these disparities have been identified, they will begin drafting the InterAmerican Law on Investment Securities held by Indirect Holders which they anticipate completing during The OAS, CIDIP VII process will be the proposed venue for the proposal. This proposed treaty promises to provided the Latin American market of public and private sector 36. Id. at Model Inter-American Law on Secured Transactions, supra note See supra note 29 and accompanying text.

8 1664 The Business Lawyer; Vol. 58, August 2003 securities with a heretofore non-existing liquidity. This liquidity will result from reassuring lenders, secured creditors and bona fide purchasers of a legal regime of certain, transparent, simplified and easily enforceable rights. NLCIFT is organizing a multi-national working group on cross-border securitization law and practice in the Western Hemisphere. This group will concentrate first on Mexican and Central American originated transactions and will recommend changes in substantive and registry law as well as documentation. These projects, as well as dispute resolution rules for secured lending, investment securities, and securitization transactions, will be an integral part of a capital formation project launched jointly by the U.S. Department of Commerce and NLCIFT for Central America. The organizational meeting for this effort took place in March 2003 at the U.S. Department of Commerce and involved key public and private sector entities in the United States and Central America. HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW In December 2002, the Special Commission on General Affairs and Policy of the Hague Conference on Private International Law approved the PRIMA Convention. 39 Official commentary will be published in the coming months. The PRIMA Convention will become effective upon ratification by three States. 40 (In the case of the United States, Senate approval would be required before the convention would become effective against the United States.) The PRIMA Convention establishes choice of law rules for determining the jurisdiction whose substantive law is to be applied to the issues governed by the PRIMA Convention. The PRIMA Convention governs the rights acquired in securities held with an intermediary and the nature and effects against intermediaries and third parties of a disposition of, or the creation or transfer of an interest in, securities held with an intermediary. The PRIMA Convention also covers the duties of an intermediary to third parties asserting interests in securities held with that intermediary. 41 The PRIMA Convention would apply in all cases involving a choice between the laws of different States, even if the applicable law is that of a State that has not become a party to the PRIMA Convention, and the applicable law referred to does not include that jurisdiction s choice of law rules. 42 To reduce legal uncertainty as to what law would apply, the PRIMA Convention s primary rule points to the law of the State of the place of the relevant intermediary. 43 To determine the place of the relevant intermediary, the PRIMA Convention adopts an approach that walks the line between party autonomy (allowing the parties to select the law that will apply by way of agreement) and lex rei sitae (determining where the account really is). Generally speaking, the place of the relevant intermediary is determined by the State the intermediary and 39. See supra note PRIMA Convention, supra note 1, art. 19(1). 41. Id. art. 2(1). 42. Id. arts. 3, 9, Id. art. 4(1).

9 Survey of International Commercial Law Developments During account holder have expressly agreed is the State whose law governs their account agreement or, if the account agreement expressly provides that another law applies to all the issues covered by the PRIMA Convention, then the law of that other State. 44 However, the parties choice will apply only if the relevant intermediary has, at the time of the agreement just referred to, an office regularly engaged in securities account maintenance activities in that State. 45 Certain fallback rules apply if the test is not met, either because the parties did not make the relevant agreement or because the intermediary did not have an appropriate office in the State selected. The first fallback rule turns to the law of the State where the particular office of the intermediary through which the account agreement was entered into is located, assuming that the written account agreement expressly and unambiguously states that the relevant intermediary entered into the account agreement through a particular office and that such office was engaged in the requisite securities account maintenance activities. 46 The second fallback rule turns to the law of the State in which the relevant intermediary is incorporated or otherwise organized. 47 Factors that the PRIMA Convention explicitly excludes from consideration in determining applicable law include the places where the issuer of the securities, the security certificates, and the register for the securities are located, as well as the place where any intermediary other than the relevant intermediary is located. 48 The Convention includes specific rules for application to agreements entered into before the Convention takes effect. 49 To accommodate multi-unit states, the Convention applies internal choice of law rules for perfection by filing. 50 UNIDROIT SECURITIES HELD WITH INTERMEDIARIES AS COLLATERAL As negotiation of the PRIMA Convention by the Hague Conference moved toward conclusion, UNIDROIT launched a new project that complements the work of the Hague Conference a project concerned with international development of substantive law in the field of securities held through intermediaries. The premise of both the Hague Conference and UNIDROIT project is that rapid 44. Id. A test based on the jurisdiction selected by the parties as the place in which the account was to be maintained was considered but ultimately rejected. 45. Id. For multi-unit States, if the parties select the law of a territorial unit, the requisite office may be located anywhere in the State for the parties choice of law to apply. Id. art. 12(1). 46. Id. art. 5(1). 47. Id. art. 5(2). For intermediaries that are not incorporated or otherwise organized, the rules refer to place of business or principal place of business. Id. art 5(3). A special rule is included for intermediaries that are organized under the law of the multi-unit State but having its place of business or principal place of business in a particular territorial unit. Id. art 5(2). 48. Id. art. 6. A similar approach was adopted by the drafters of article 8 of the U.C.C. when the securities intermediary s jurisdiction was first introduced. The U.C.C. provides that a securities intermediary s jurisdiction is not determined by the location of the security certificates, the issuer s jurisdiction, or the location of data processing or other record keeping facilities. U.C.C (f) (2002). 49. PRIMA Convention, supra note 1, art Id. art. 12(3).

10 1666 The Business Lawyer; Vol. 58, August 2003 emergence of a global capital market in securities requires a new platform of legal rules that will serve the needs of participants in that market. While the PRIMA Convention provides choice-of-law rules that provide a level of certainty as to the domestic national law that governs rights and duties of securities intermediaries, account holders, lenders that take securities as collateral, and clearing corporations; the UNIDROIT project is concerned with the adequacy of existing national laws governing securities held through intermediaries and with the compatibility of those laws when they interact. In 2002, UNIDROIT established a restricted study group to prepare Harmonised Substantive Rules for the Use of Securities Held with Intermediaries as Collateral. 51 Many of the group s members were actively involved in the negotiations for the PRIMA Convention. The group met in September 2002, during which they explored the need for an international initiative and discussed the possible nature of the final product. The group met again in March 2003, during which they considered the subjects that have the greatest need for harmonization in national and international laws. The initial focus for the study group had been on use of securities held with intermediaries as collateral in secured financing transactions. However, during the March meeting, the group recognized that they could not limit their efforts to address securities as collateral, but rather needed to address more broadly the laws relating to the indirect holding of securities. Systemic risk also was considered at some length and the study group was advised of the recommendations regarding systemic risk recently made by the G-30 and the Giovannini Group. The group scheduled additional meetings for 2003 with inter-sessional work to take place between meetings. Part of the initial meeting was devoted to sessions with authorities of governments and financial institutions with whom the group expects to consult regularly as work progresses. UNIDROIT CAPE TOWN CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT In October and November of 2001, UNIDROIT adopted the final texts of the Convention on International Interests in Mobile Equipment (the Cape Town Convention ) 52 and the Protocol on Matters Specific to Aircraft Equipment (the Aircraft Protocol ). 53 The Cape Town Convention provides for the creation and 51. See UNIDROIT News, 81st Sess. of the Governing Council, [ ] UNIF.L.REV. 836, , available at (last visited July 2, 2003). Representing the United States on the Study Group is Professor Curtis R. Reitz, Biddle Professor of Law at the University of Pennsylvania Law School. Id. at 852. Professor Reitz was chair of the NCCUSL drafting committee that prepared the 1994 revision of U.C.C. Article 8 and related provisions of U.C.C. Article The Convention on International Interests in Mobile Equipment, Nov. 16, 2001, UNIDROIT, is available at (last visited July 2, 2003). 53. The Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment is available at (last visited July 2, 2003).

11 Survey of International Commercial Law Developments During enforceability of international security interests in mobile equipment. The UNI- DROIT working groups will prepare additional protocols applicable to specific mobile equipment-related industries. As of May 9, 2003, twenty-six states, including the United States, have signed the Cape Town Convention and the Aircraft Protocol. 54 The Secretariat believe[s] that three States are on the verge of depositing their instruments of ratification and [anticipates] that the two instruments are likely to enter into force relatively quickly. 55 The International Registry Task Force met in September and November 2002 to further its efforts in finalizing the regulations intended to govern the operation of the International Registry for aircraft objects. 56 The text of the preliminary draft Protocol on Matters specific to Railway Rolling Stock (the Rail Protocol ) 57 was submitted to the Joint UNIDROIT/OTIF (Intergovernmental Organisation for International Carriage by Rail) Committee of Governmental Experts at its second joint session in June In October 2002, the drafting committee revised the Rail Protocol for consideration by the joint UNI- DROIT/OTIF Committee of Governmental Experts in May A UNIDROIT committee of governmental experts is in the process of finalizing the preliminary draft Protocol on Matters Specific to Space Assets (the Space Protocol ). 59 The Space Protocol will mitigate the risks involved in the financing of space and space-related technologies including, of particular importance, satellite telecommunication projects. UNIDROIT OTHER ACTIVITIES To commemorate the seventy-fifth anniversary of its founding, UNIDROIT organized a Congress in Rome in September 2002 entitled Global Harmonisation of Private Law and Regional Economic Integration. 60 Various academics and practitioners presented reports on the following six topics particularly important in recent private law harmonization efforts: contracts, sale and carriage 54. See Status Report, Convention on International Interests in Mobile Equipment, Nov. 16, 2001, UNIDROIT, available at (last visited July 2, 2003); Status Report, Protocol to the Convention of International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, Nov. 16, 2001, UNIDROIT, available at (last visited July 2, 2003). 55. See UNIDROIT News, supra note 51, at Id. 57. International Institute for the Unification of Private Law, Preliminary Draft Protocol on Matters Specific to Railway Rolling Stock, UNIDROIT Doc. Study LXXIIH-Doc.8, available at (last visited July 2, 2003). 58. See Development of Work within UNIDROIT on International Interests in Mobile Equipment, available at visited July 2, 2003). 59. International Institute for the Unification of Private Law, Preliminary Draft Protocol on Matters Specific to Space Assets, available at (last visited July 2, 2003). 60. See UNIDROIT News, supra note 51, at 854.

12 1668 The Business Lawyer; Vol. 58, August 2003 of goods, secured transactions, civil procedure and the protection of cultural property. 61 INTERNATIONAL MONETARY FUND During 2002, the International Monetary Fund (IMF) continued discussing varying ways to create a more orderly approach to sovereign debt restructuring. 62 The principal approaches include a contractual approach (i.e. recommended contractual provisions in sovereign debt contracts to facilitate restructuring) and the creation of a statutory framework. The objective of the proposed statutory approach (referred to by the IMF as the Sovereign Debt Restructuring Mechanism or SDRM) is to provide a framework that strengthens incentives for a sovereign and its creditors to reach a rapid and collaborative agreement on a restructuring of unsustainable debt in a manner that preserves the economic value of assets and facilitates a return to medium-term viability, and thereby reduces the cost of the restructuring process. 63 In December 2002, the Executive Board of the IMF met to discuss a paper prepared by the staff at the IMF entitled The Design of the Sovereign Debt Restructuring Mechanism Further Considerations. 64 This is the first paper prepared by the IMF to outline the principal features of a statutory approach. 65 The International Monetary and Financial Committee (IMFC), which represents the interests of the IMF s member countries, requested during its September 2002 meeting that the IMF develop a concrete proposal for sovereign debt restructuring for consideration at the next meeting of the IMFC in April Id. at UNIDROIT has published a discussion of the Congress. Congress to Celebrate the 75th Anniversary of the Foundation of UNIDROIT: Worldwide Harmonisation of Private Law and Regional Economic Integration, [ ] UNIF. L. REV. 814, available at news/congress e.pdf (last visited July 2, 2003). 62. IMF Board Discusses Possible Features of a Sovereign Debt Restructuring Mechanism, Public Information Notice (PIN) No. 03/06 (Jan. 7, 2003), available at /pn0306.htm (last visited July 2, 2003). 63. Id. at The Design of the Sovereign Debt Restructuring Mechanism Further Considerations, IMF (Nov. 27, 2002), available at (last visited July 2, 2003). 65. Id. at Id.