Home Law Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions
Spanish Laws governing secured transactions have evolved in last decades and experienced several reforms mainly aimed to better meet new financing needs and facilitate access to credit, to counteract economic situations entailing financing constraints and to enable local businesses access to international financial markets in competitive conditions. Likewise, the registry system has carried out a significant modernizing process resulting in modern, professional and highly computerized registries. In particular, the establishment of the Personal Property Registry/ Registry of Movables (Registro de Bienes Muebles) appreciably facilitated the evolution of the secured transactions system towards non-possessory security devices.
Despite the latest reforms, Spanish rules governing secured transactions are scattered, fragmentary and, in some cases, even antiquated. The modernizing impetus has not affected uniformly all areas of secured transactions laws. Whereas reforms in insolvency laws have been numerous and substantial, legal regime of traditional security interests has remained largely intact instead, except for the modern rules on financial collateral arrangements. Then, a comprehensive reform aimed to modernize, unify and provide consistency to the legal framework governing secured transactions is long awaited and still pending.
In 2005, the incorporation into Spanish jurisdiction of European rules on financial collateral arrangements entailed a profound reform in secured transactions system. Although the scope of that reform is limited, some basic principles underpinning the whole legal conception of secured transactions have been challenged and put under consideration. Consequently, a debate is open about the need to undertake a deep and all-embracing reform of existing legal system.
The accession by Spain to Convention in 2013 and the subsequent, albeit belated, ratification of the Aircraft Protocol, as above anticipated, have also significantly contributed to trigger such discussion and foster proposals to reform among practitioners, scholars and market players. Nevertheless, all economic benefits of Cape Town system are not automatically deriving from the mere accession. Particular care requires and special attention is to be paid to effectively implement the uniform system in domestic jurisdiction. Inadequate domestic actions lead to a dysfunctional implementation likely to undermine expected economic efficiencies from joining the uniform system. In sum, given the strategic value of a full incorporation into the Cape Town system, an effective implementation of its rules on material matters and in relation to the registry system, as discussed above, is crucial.
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