Andrew Cawkwell
Partner
Direct Dial: 0191 2444338
Mobile: 07973 502809
From: INSOL International <insolinternational@insol.ision.co.uk>
To: Andrew Cawkwell
Sent: Mon Jul 26 15:18:59 2010
Subject: INSOL International Technical Paper No. 13
 INSOL International www.insol.org |
Creditors with security interests in collateral that is highly valuable and mobile that cross-jurisdictional boundaries face unique challenges if a debtor becomes insolvent. In the event the security interest has to be enforced, inevitably, uncertainties as to which country’s laws apply to enforce the security interest arise. Similarly, if disputes arise in respect of such security, there can be uncertainty as to which country’s laws apply to resolve the disputes. These issues are discussed in the first part of the paper where it provides an overview of the various challenges in respect of mobile security in a cross-border insolvency situation, and then discusses the conflict of law issues that will arise.
The main part of the paper will address some of the more complex issues with regard to the choice of laws and enforcement at national law level and examples from New Zealand, Australia, Canada and the United States are discussed. In addition, a number of international frameworks such as the UNICITRAL Legislative Guide on Secured Transactions, and the International Institute for the Unification of Private Law (UNIDROIT)’s Cape Town Convention on International Interests in Mobile Equipment (Cape Town Convention) are covered in this paper.
We would like to thank Trish Keeper, Senior Lecturer at the School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand and INSOL Scholar 2009 – 2010 for writing this very interesting and informative paper.
July 2010
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