In the past decades, numerous countries of the five continents have been substantively modernizing their private law legal framework in topics related to commercial law, including secured transactions. Paraguay has not been an alien to this phenomenon and has adopted numerous harmonizing instruments developed by international organizations such as UNCITRAL, Unidroit, and the Hague Conference on Private International Law in commercial arbitration, international contracts, and the sale of goods, among others. This brief contribution describes the Paraguayan situation of access to secured credit with particular emphasis on small- and medium-sized enterprises and the legal shortcomings that obstruct financing backed by movable assets. Further, the article also discusses the road travelled to modernize the Paraguayan legal framework on secured transactions and makes recommendations for the future based on the lessons learned from the process.
{"title":"The Paraguayan experience in modernizing its secured transactions legal framework","authors":"Jose A. Moreno Rodríguez, Lucía E Cazal Zaldivar","doi":"10.1093/ulr/unac012","DOIUrl":"https://doi.org/10.1093/ulr/unac012","url":null,"abstract":"\u0000 In the past decades, numerous countries of the five continents have been substantively modernizing their private law legal framework in topics related to commercial law, including secured transactions. Paraguay has not been an alien to this phenomenon and has adopted numerous harmonizing instruments developed by international organizations such as UNCITRAL, Unidroit, and the Hague Conference on Private International Law in commercial arbitration, international contracts, and the sale of goods, among others. This brief contribution describes the Paraguayan situation of access to secured credit with particular emphasis on small- and medium-sized enterprises and the legal shortcomings that obstruct financing backed by movable assets. Further, the article also discusses the road travelled to modernize the Paraguayan legal framework on secured transactions and makes recommendations for the future based on the lessons learned from the process.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"51 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73584809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Mining, Agriculture and Construction Protocol (MAC Protocol) of the Convention on International Interests in Mobile Equipment (Cape Town Convention or CTC), provides a major innovation in the CTC system by including the concept of ‘immovable-associated equipment’. Article VII of the MAC Protocol’s mandatory declaration regulates immovable-associated equipment and the interaction between the international law regime of the CTC and domestic law of potential State parties, such as Chile. This article addresses the interactions between the CTC’s international interest in MAC equipment and the local interest under Chilean law. Consequently, it explores which alternative provided by Article VII of the MAC Protocol’s declaration provides the best improvement for Chilean law in order to enhance creditor position and to promote asset-based financing in the case of immovable-associated equipment. For such purpose, the Chilean mortgage is considered as a relevant interest for the immovable-associated equipment and the CTC international interest is compared with the Chilean non-possessory pledge under a case-by-case analysis. The analysis focuses on the cases when MAC equipment is a movable good deemed as immovable by destination under Chilean law.
{"title":"Immovable-associated equipment in the CTC MAC Protocol: interactions between international interest and local interests under Chilean law","authors":"Camilo Saldías Robles","doi":"10.1093/ulr/unac014","DOIUrl":"https://doi.org/10.1093/ulr/unac014","url":null,"abstract":"\u0000 The Mining, Agriculture and Construction Protocol (MAC Protocol) of the Convention on International Interests in Mobile Equipment (Cape Town Convention or CTC), provides a major innovation in the CTC system by including the concept of ‘immovable-associated equipment’. Article VII of the MAC Protocol’s mandatory declaration regulates immovable-associated equipment and the interaction between the international law regime of the CTC and domestic law of potential State parties, such as Chile. This article addresses the interactions between the CTC’s international interest in MAC equipment and the local interest under Chilean law. Consequently, it explores which alternative provided by Article VII of the MAC Protocol’s declaration provides the best improvement for Chilean law in order to enhance creditor position and to promote asset-based financing in the case of immovable-associated equipment. For such purpose, the Chilean mortgage is considered as a relevant interest for the immovable-associated equipment and the CTC international interest is compared with the Chilean non-possessory pledge under a case-by-case analysis. The analysis focuses on the cases when MAC equipment is a movable good deemed as immovable by destination under Chilean law.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76372327","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The purpose of this work is to analyze whether the Constitutional Court decisions on due process as applied to the realization of security interests may hinder an eventual ratification of the Cape Town Convention and its protocols.
{"title":"Self-executable remedies of the Convention on International Interests in Mobile Equipment in the light of Chilean constitutional court case law on due process guarantees","authors":"Guillermo Caballero Germain","doi":"10.1093/ulr/unac011","DOIUrl":"https://doi.org/10.1093/ulr/unac011","url":null,"abstract":"\u0000 The purpose of this work is to analyze whether the Constitutional Court decisions on due process as applied to the realization of security interests may hinder an eventual ratification of the Cape Town Convention and its protocols.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"44 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86021679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article aims to offer a detailed overview of the Singapore Convention on Mediation (formally known as the UN Convention on International Mediated Settlement Agreements Resulting from Mediation). The Convention establishes a unified, efficient system for the enforcement of international mediated settlement agreements—akin to the framework established for arbitral decisions by the 1958 New York Convention. This article offers a critical assessment of the Convention as well as some commentaries on how it will fit into the current alternative dispute resolution market. This contribution also assesses the Convention’s key features, how it is likely to be applied, as well as its perceived strengths and weaknesses.
{"title":"Prolegomena to the UN Convention on International Mediated Settlement Agreements Resulting from Mediation","authors":"David Tan","doi":"10.1093/ulr/unac006","DOIUrl":"https://doi.org/10.1093/ulr/unac006","url":null,"abstract":"\u0000 This article aims to offer a detailed overview of the Singapore Convention on Mediation (formally known as the UN Convention on International Mediated Settlement Agreements Resulting from Mediation). The Convention establishes a unified, efficient system for the enforcement of international mediated settlement agreements—akin to the framework established for arbitral decisions by the 1958 New York Convention. This article offers a critical assessment of the Convention as well as some commentaries on how it will fit into the current alternative dispute resolution market. This contribution also assesses the Convention’s key features, how it is likely to be applied, as well as its perceived strengths and weaknesses.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"5 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75263008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
La pratique formule sans cesse des garanties efficientes, adaptées aux transactions économiques et financières, à telle enseigne qu’elle nourrit et inspire le droit des sûretés OHADA. Fort de cet enrichissement, le droit des sûretés OHADA devient lui-même un instrument d’ingénierie juridique à partir duquel les parties peuvent combiner des sûretés, les aménager, les enrichir dans les limites fixées par le législateur de l’OHADA. On peut ainsi affirmer que l’Acte uniforme portant organisation des sûretés est un véritable « iceberg ». Sa partie visible met en exergue des sûretés connues, alors que le côté immergé contient une kyrielle de possibilités d’aménagement des conventions de garanties. Il faudrait juste faire preuve de créativité et de subtilité afin de tirer le meilleur des sûretés de l’OHADA. Mots-clés: ingénierie juridique, sûretés, pratique
{"title":"L’ingénierie juridique et le droit des sûretés OHADA","authors":"Camille Tchotchou Petche Kamga, Georges Nfoutcha","doi":"10.1093/ulr/unac008","DOIUrl":"https://doi.org/10.1093/ulr/unac008","url":null,"abstract":"\u0000 La pratique formule sans cesse des garanties efficientes, adaptées aux transactions économiques et financières, à telle enseigne qu’elle nourrit et inspire le droit des sûretés OHADA. Fort de cet enrichissement, le droit des sûretés OHADA devient lui-même un instrument d’ingénierie juridique à partir duquel les parties peuvent combiner des sûretés, les aménager, les enrichir dans les limites fixées par le législateur de l’OHADA. On peut ainsi affirmer que l’Acte uniforme portant organisation des sûretés est un véritable « iceberg ». Sa partie visible met en exergue des sûretés connues, alors que le côté immergé contient une kyrielle de possibilités d’aménagement des conventions de garanties. Il faudrait juste faire preuve de créativité et de subtilité afin de tirer le meilleur des sûretés de l’OHADA.\u0000 Mots-clés: ingénierie juridique, sûretés, pratique","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"48 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91257990","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article recommends the Cape Town Convention on International Interests in Mobile Equipment and appeals to African countries to accede to the Luxembourg Protocol on Railway Rolling Stock (Rail Protocol). The discussion in this article focuses on the extent to which Article XXII of the Rail Protocol can be applied with respect to Africa. The article critically analyses the competence of the African Economic Community (AEC) and its sub-regional organizations to accede to the Cape Town Convention and Rail Protocol. The author provides a detailed argumentative analysis of the legal mandate of the AEC and the influence of African Union (AU) laws on the competence of the AEC’s sub-regional organizations to make declarations under the Cape Town Convention and Rail Protocol. The analysis confirms that competence to accede to the Convention and Rail Protocol resides with sovereign States in Africa and not with the AU, the AEC, the Organisation pour l’harmonisation en Afrique du Droit des Affaires, or any existing sub-regional organization in Africa.
{"title":"Exporting the Luxembourg Rail Protocol to the Convention on International Interests in Mobile Equipment to Africa","authors":"I. Otabor-Olubor","doi":"10.1093/ulr/unac007","DOIUrl":"https://doi.org/10.1093/ulr/unac007","url":null,"abstract":"\u0000 This article recommends the Cape Town Convention on International Interests in Mobile Equipment and appeals to African countries to accede to the Luxembourg Protocol on Railway Rolling Stock (Rail Protocol). The discussion in this article focuses on the extent to which Article XXII of the Rail Protocol can be applied with respect to Africa. The article critically analyses the competence of the African Economic Community (AEC) and its sub-regional organizations to accede to the Cape Town Convention and Rail Protocol. The author provides a detailed argumentative analysis of the legal mandate of the AEC and the influence of African Union (AU) laws on the competence of the AEC’s sub-regional organizations to make declarations under the Cape Town Convention and Rail Protocol. The analysis confirms that competence to accede to the Convention and Rail Protocol resides with sovereign States in Africa and not with the AU, the AEC, the Organisation pour l’harmonisation en Afrique du Droit des Affaires, or any existing sub-regional organization in Africa.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"53 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86375459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This study focuses on the equality among cooperative shareholders under the OHADA2 law. It analyses, with regards to the specificity of cooperative companies; the place that OHADA legislature gives to the general principle of equality in cooperative structures. It shows from our analysis that the principle of equality in partners has not only been taken up by the legislature in the Uniform Act on cooperatives, but that it has also been strengthened giving the specificity of cooperative structures.
{"title":"«L’égalité entre les associés-coopérateurs en droit de l’OHADA» «The equality among cooperative shareholders under the OHADA law»","authors":"Hilarion Kontchop","doi":"10.1093/ulr/unac009","DOIUrl":"https://doi.org/10.1093/ulr/unac009","url":null,"abstract":"\u0000 This study focuses on the equality among cooperative shareholders under the OHADA2 law. It analyses, with regards to the specificity of cooperative companies; the place that OHADA legislature gives to the general principle of equality in cooperative structures. It shows from our analysis that the principle of equality in partners has not only been taken up by the legislature in the Uniform Act on cooperatives, but that it has also been strengthened giving the specificity of cooperative structures.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"22 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79336809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyses two different limits to specific performance of contracts: hardship and excessive or unreasonable costs, looking into their conditions, scope of application, and effects, with the aim of outlining their corresponding field of application, intending to solve the current confusions on the subject.
{"title":"Economic limits to contractual performance: from hardship to the excessive costs of specific performance","authors":"Rodrigo Momberg Uribe, Álvaro Vidal Olivares","doi":"10.1093/ulr/unac004","DOIUrl":"https://doi.org/10.1093/ulr/unac004","url":null,"abstract":"\u0000 This article analyses two different limits to specific performance of contracts: hardship and excessive or unreasonable costs, looking into their conditions, scope of application, and effects, with the aim of outlining their corresponding field of application, intending to solve the current confusions on the subject.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"6 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78614357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article focuses on the practice of United Nations Commission on International Trade Law (UNCITRAL) to include the text of Article 7 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) into an array of other instruments, including model laws. Article 7 of the CISG lays out the interpretative methodology of this Convention. The discussion in this article is conducted through the lens of UNCITRAL’s best-known model law—the UNCITRAL Model Law on International Commercial Arbitration—whose Article 2A is the counterpart to CISG’s Article 7. To this end, this article first explains the difference between model laws and conventions. Second, it focuses on Article 7 of the CISG, explaining its meaning, purpose, and the widely accepted mode of operation. Third, the article shifts its focus specifically to Article 2A of the UNCITRAL Model Law on International Commercial Arbitration, and against the backdrop of the discussion on Article 7 of the CISG, seeks to unpack the meaning and scope of Article 2A. Last, but not least, the article will make a determination as to whether adding Article 2A to the Model Law was a good idea to begin with. Given the fact that other model laws contain similar or practically verbatim provisions, conclusions reached in this article also ought to be relevant outside of the realm of the Model Law on International Commercial Arbitration itself.
{"title":"Genericism in the uniformity endeavour: a plea against the one-size-fits-all approach","authors":"Boris Praštalo","doi":"10.1093/ulr/unac005","DOIUrl":"https://doi.org/10.1093/ulr/unac005","url":null,"abstract":"\u0000 This article focuses on the practice of United Nations Commission on International Trade Law (UNCITRAL) to include the text of Article 7 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) into an array of other instruments, including model laws. Article 7 of the CISG lays out the interpretative methodology of this Convention. The discussion in this article is conducted through the lens of UNCITRAL’s best-known model law—the UNCITRAL Model Law on International Commercial Arbitration—whose Article 2A is the counterpart to CISG’s Article 7. To this end, this article first explains the difference between model laws and conventions. Second, it focuses on Article 7 of the CISG, explaining its meaning, purpose, and the widely accepted mode of operation. Third, the article shifts its focus specifically to Article 2A of the UNCITRAL Model Law on International Commercial Arbitration, and against the backdrop of the discussion on Article 7 of the CISG, seeks to unpack the meaning and scope of Article 2A. Last, but not least, the article will make a determination as to whether adding Article 2A to the Model Law was a good idea to begin with. Given the fact that other model laws contain similar or practically verbatim provisions, conclusions reached in this article also ought to be relevant outside of the realm of the Model Law on International Commercial Arbitration itself.","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"49 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86075138","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Corrigendum to: Overcoming Obstacles to the Application of the Unidroit Principles: Proposal for a Descriptive Choice of the Unidroit Principles Clause","authors":"Eckart Brödermann","doi":"10.1093/ulr/unac003","DOIUrl":"https://doi.org/10.1093/ulr/unac003","url":null,"abstract":"","PeriodicalId":42756,"journal":{"name":"Uniform Law Review","volume":"198 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138538583","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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