The law applicable to security interests in intermediated securities under OHADA law /

The law applicable to security interests in intermediated securities under OHADA law / / Justin Monsenepwo.

In recent decades, the technical handling of custody business in the OHADA region has undergone a lasting change. There has been a shift from a direct to an indirect holding system, in which the interests of an investor in respect of the underlying securities are recorded in the books of an intermed...

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Bibliographic Details
Superior document:Studien zum ausländischen und internationalen Privatrecht
VerfasserIn:
Monsenepwo Mwakwaye, Justin,
Place / Publishing House:Tübingen : : Mohr Siebeck,, [2022]
©2022
Year of Publication:2022
Edition:1st ed.
Language:English
Series:Studien zum ausländischen und internationalen Privatrecht.
Physical Description:1 online resource (451 pages)
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Table of Contents:
  • Cover
  • Title
  • Preface
  • Foreword
  • Summary of Contents
  • Contents
  • Tables and Figures
  • Abbreviations
  • General Introduction
  • Part I - The Intermediary System in the Ohada Region
  • Chapter 1: The Organisation for the Harmonisation of Business Law in Africa
  • A. Historical Perspective
  • B. Purpose of Ohada
  • I. Contribution to Regional Integration in Africa
  • II. Facilitating Investments and Improving the Economies of Its Members
  • III. Unification in lieu of Harmonisation
  • C. Ohada's Institutional Framework
  • I. The Conference of Heads of State and Government
  • II. The Council of Ministers
  • 1. Composition
  • 2. Functioning
  • 3. Duties
  • III. The Permanent Secretariat
  • 1. Organisation
  • 2. Duties
  • IV. The Common Court of Justice and Arbitration (CCJA)
  • 1. Composition
  • 2. Functions
  • 3. Challenges faced by the CCJA and Trends in the CCJA's Case Law
  • a) Challenges faced by the CCJA
  • b) Geographical Origins of the Appeals lodged before the CCJA
  • V. The Regional School for Magistrates
  • D. Instruments of OHADA
  • I. Uniform Acts
  • 1. Object of the Uniform Acts
  • 2. The Process of Adopting Uniform Acts
  • a) Drafting
  • b) Advisory Opinion of the CCJA
  • c) Final Adoption
  • d) Exclusion of Legislative Authorities
  • 3. Effects of the Uniform Acts on National Law
  • a) Direct Applicability of the Uniform Acts
  • b) Interpretation of Article 10 by the CCJA
  • 4. Current Uniform Acts
  • 5. Uniform Acts "in the Pipeline"
  • II. Regulations
  • III. Chronological Table of the Uniform Acts and the Regulations
  • E. Summary and Evaluation
  • Chapter 2: Basic Structure and Functioning of the Indirect Holding System in the OHADA Region
  • A. Development of Commercial Practices in the OHADA Region regarding the Holding of Securities
  • I. Traditional Direct Holding of Securities under OHADA Law.
  • 1. Presentation of the Traditional Direct Holding System under OHADA Law
  • 2. Advantages and Disadvantages of the Direct Holding System
  • II. The Intermediated System under OHADA Law
  • 1. Development in Commercial Practices
  • 2. Regional and National Legislative Developments in Respect of the Law of Securities
  • a) Status Quaestionis under OHADA Law
  • (1) Revision of Uniform Acts at the Ohada Level
  • (2) Centralisation and Immobilisation of Securities
  • (3) Dematerialisation of Securities
  • b) The New Act on the Dematerialisation of Securities under the Law of Cameroon
  • (1) Presentation of the New Act on the Dematerialisation of Securities
  • (2) Modalities for the Dematerialisation of Securities
  • B. Basic Structure of Ohada's Indirect Holding System Compared to Existing Models of Intermediated Systems
  • I. Introduction
  • II. The Individual Ownership Model
  • III. The Co-Ownership Model
  • IV. The Trust Model
  • V. The Security Entitlement Model
  • VI. The Contractual Model
  • VII. Identifying the Investor: Transparent and Non-transparent Systems
  • 1. Introduction
  • 2. Transparent Systems in Which the Holdings are Held in an Account with the CSD
  • 3. Transparent Systems in Which the Holdings of the Investor are Identified in an Intermediary Account with the CSD
  • 4. Transparent Systems in Which an Investor's Holdings are Held by an Intermediary in an Omnibus Account at the CSD
  • C. Summary and Evaluation
  • Part II - Reports on National, Regional, and International Substantive Law Rules in Respect of Security Interests in Intermediated Securities
  • Chapter 1: The Pledge of Securities Accounts under the OHADA Uniform Act on Security Interests
  • A. Introduction: Relevance of the 2010 Revision of the Uniform Act on Security Interests
  • B. Scope of Application of Articles 146 et seq of the Uniform Act on Security Interests.
  • I. Definition of the Pledge of Securities Accounts
  • 1. Limited Material Scope
  • 2. Pledges of "Securities Accounts" rather than of "Intermediated Securities"
  • II. Relationship between the Provisions of the Different Uniform Acts applying to the Pledge of Securities Accounts
  • 1. Provisions applying to the Pledge of Securities
  • 2. Prevalence of the Uniform Act on Security Interests
  • C. How a Pledge of a Securities Account is Constituted
  • I. Requirement of a Declaration establishing the Pledge
  • 1. The Declaration establishing the Pledge
  • 2. Elements to Be Included in the Declaration establishing the Pledge
  • a) Date of the Declaration
  • b) Other Elements to Be Included in the Declaration
  • II. The Requirement of a Prior Contract
  • D. Basis of the Pledge
  • I. The Contents of the Securities Account
  • 1. Intermediated Securities located in the Securities Account
  • a) Financial Instruments recorded in the Pledged Securities Account
  • b) Inalienable Securities
  • c) Securities Whose Transfer is Subject to an Approval Clause
  • 2. Sums of Money located in the Pledged Securities Account
  • II. Proof of the Content of the Pledged Securities Account
  • 1. Special Account Open in the Name of the Account Holder
  • 2. The Certificate of Pledge
  • E. Evolution of the Pledged Securities Account
  • I. Introduction
  • II. Inclusion of Products and Benefits deriving from the Pledged Securities Account
  • III. Substituted Securities
  • 1. "New" Securities
  • 2. Sums of Money resulting from the Sale of Securities located in the Pledged Account
  • F. Right to Use the Intermediated Securities recorded in the Pledged Securities Account
  • I. Right of Use
  • 1. Scope of the Right of Use under Article 151(1) First Sentence of the Uniform Act on Security Interests.
  • 2. Absence of Provisions in Respect of the Replacement of the Used Collateral Securities
  • II. Right of Retention
  • 1. Scope of the Right of Retention
  • 2. The Relationship between the Right of Retention and the Right of Use
  • G. Realisation of the Pledge
  • I. Introduction
  • II. Formal Notice
  • III. Enforcement
  • 1. Introduction
  • 2. Realisation by Selling the Intermediated Securities
  • 3. Realisation by Appropriating the Intermediated Securities recorded in the Pledged Securities Account
  • H. Summary and Evaluation
  • Chapter 2: Security Interests in Intermediated Securities under the Geneva Securities Convention
  • A. Presentation of the Geneva Securities Convention
  • I. The Geneva Securities Convention
  • II. Objectives and Guiding Principles of the Geneva Securities Convention
  • III. Current Status of the Geneva Securities Convention
  • B. Scope of Application of Chapter V of the Geneva Securities Convention
  • I. Introduction
  • II. Personal Scope
  • III. Material Scope
  • 1. Types of Collateral
  • 2. Relevant Obligations
  • C. Recognition of Title Transfer Collateral Agreements
  • I. History of the Provision in Article 32 of the Geneva Securities Convention
  • II. Analysis of Article 32 of the Geneva Securities Convention
  • D. Enforcement under Article 33 of the Geneva Securities Convention
  • I. History of Article 33 of the Geneva Securities Convention
  • II. Analysis of the Enforcement Provision in the Geneva Securities Convention
  • 1. Overview of the Realisation Methods
  • 2. Realisation by way of Sale of the Collateral Securities
  • 3. Realisation by Appropriation
  • 4. Close-Out Netting
  • 5. Obstacles to the Realisation of the Collateral in Some Jurisdictions
  • E. Right to Use Collateral Securities under Article 34 of the Geneva Securities Convention
  • I. History of Article 34 of the Geneva Securities Convention.
  • II. Analysis of Article 34 of the Geneva Securities Convention
  • 1. Use of Collateral Securities
  • 2. Replacement of the Used Collateral Securities
  • 3. Protecting the Collateral Taker's Rights
  • F. Top-Up or Substitution of Collateral
  • I. General Overview and History of the Top-Up Rule in Article 36 of the Geneva Securities Convention
  • II. Analysis of Top-Up Rule in Article 36 of the Geneva Securities Convention
  • 1. Rule Number 1: Top-Up
  • a) Introduction
  • b) The Situation provided in Article 36(1)(a)(i) of the Geneva Securities Convention
  • c) The Situation provided in Article 36(1)(a)(ii) of the Geneva Securities Convention
  • d) The Situation provided in Article 36(1)(a)(iii) of the Geneva Securities Convention
  • 2. Rule Number 2: Substitution
  • 3. Scope of Protection
  • III. Certain Insolvency Provisions Disapplied
  • G. Summary and Evaluation
  • Chapter 3: The EU Legislation on the Collateralisation of Intermediated Securities
  • A. A Bird's Eye View of the EU Legislative Framework on Intermediated Securities
  • B. The Collateralisation of Intermediated Securities under the Settlement Finality Directive
  • I. History of the Settlement Finality Directive
  • II. System and Participants
  • III. Collateral Transaction
  • IV. Insolvency Proceedings and Collateral Security
  • 1. Provisions regarding Insolvency Proceedings
  • 2. Collateral Security and Legal Certainty
  • C. Collateral Agreements on Intermediated Securities under the Financial Collateral Directive
  • I. Objectives of the Financial Collateral Directive
  • II. History of the Financial Collateral Directive
  • 1. Preparatory Work
  • 2. Adoption and Implementation
  • 3. Amendments
  • III. Scope of Application
  • 1. Personal Scope
  • a) History of the Provision in Article 1(2) of the Financial Collateral Directive.
  • b) Description of the Personal Scope of Application of the Directive.

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