Security Interests in Book-Entry Securities in Japan: Should Japanese Law Embrace Perfection by Control Agreement and Security Interests in Securities Accounts?
55 Pages Posted: 15 Mar 2016 Last revised: 2 Apr 2016
Date Written: April 1, 2016
The paper proposes two significant modifications of Japan’s Act on Transfer of Bonds, Shares, etc. (BETA). First, it suggests the control agreement method of transferring an interest in securities that is effective against third parties. Under the BETA, the creation of an effective interest in book-entry securities requires book entries in the securities accounts of the transferor and the transferee. Under the control agreement approach, the transferor, transferee, and the transferor’s securities intermediary would agree that (i) the intermediary would act on the instructions of the transferee with respect to securities credited to the transferor’s securities account or (ii) the intermediary would not act on the instructions of the transferor or (iii) both (i) and (ii). No book entries would be necessary. Second, it proposes to permit the creation of an effective transfer of an interest in a securities account — i.e., in any securities that from time to time are credited to a securities account — again, without book entries with respect to specific securities.
The paper explains the historical origins of the control agreement and securities account concepts as they evolved in the revisions of UCC Articles 8 and 9 and as subsequently adopted by the GSC, providing inspiration for our proposals. It describes the transfer of securities under the BETA and it explains how the BETA could be revised to adopt the proposals. It also identifies some troublesome aspects of the BETA’s treatment of title transfer security interests (jōto tanpo) in the context of a transferee’s insolvency proceeding.
The core of the paper is a policy analysis of the proposals. We conclude that the revisions would fit well with the underlying policies and the basic structure of the BETA and that on balance the revisions would be beneficial, such as by providing flexibility in financing and potentially lowering transactions costs.
Keywords: pledge, perfection, third-party effectiveness, priority, intermediary, intermediated securities, title transfer, floating lien, Uniform Commercial Code, UCC, Geneva Securities Convention, UNIDROIT
JEL Classification: F34, G23, K22
Suggested Citation: Suggested Citation