Testing the Equivalence of the New Comprehensive Australian Personal Properties Securities Act, its Segmented European Equivalents and the Draft Common Frame of Reference

Abstract

With the new Personal Property Securities Act 2009 (Cth) (‘APPSA’) Australia has become the fourth jurisdiction to embrace a comprehensive system of personal property security law (‘PPSL’). At its centre lies the concept of unitary security interests, the prototype for which was art 9 of the United States’ Uniform Commercial Code. This is a new page in the global regulatory competition in this domain, and is causing other countries to rethink their unsystematised and hence less predictable and less competitive laws. This applies especially to fragmented Europe, which should pay increased attention to these Australian developments as they represent a gradually emerging international standard for access to financing (especially by small and medium size businesses), attraction of capital and economic growth. Only some have heeded this message, as illustrated by reforms in France and Central and Eastern Europe, as well as by Book IX of the recent soft law equivalent of a pan-European Civil Code, the Draft Common Frame of Reference. There is meaningful resistance, as the City of London’s successful blocking of realignment with the Unitary Model shows. It is less known, however, that quite a number of European national laws possess ‘segments’ of PPSL resembling the new Australian system. This article offers the first holistic comparison of the two continents’ PPSLs for the benefit of comparative lawyers and practitioners.

Keywords: Australian PPS Act 2009, secured transactions law reforms, European equivalents, Book IX of the Draft Common Frame of Reference, self-help, bankruptcy