To protect assets and interests in today's global economy, it is critical to know what types of laws similar to the Uniform Commercial Code Article 9 exist in countries outside of the United States, and how to search for secured assets as well as the processes to secure assets in those countries. Although the UCC Article 9 exists only in the United States as a matter of law, many other jurisdictions outside the U.S. have laws similar to UCC Article 9. Where to look, private versus public, and common law versus civil law, are all questions that warrant careful consideration when transacting business abroad.
Two Guiding Principles
There are two main principles to consider prior to filing or searching for an international UCC equivalent. The first and arguably most important principle is that there is no UCC outside of the United States. The Uniform Commercial Code, and by extension, Article 9, exist only in the U.S.
Canada has adopted the PPSA (Personal Property Security Act) province by province, and this act is based on UCC principles. In various Commonwealth countries, you can file or search for Charges, a UCC equivalent, against a business entity.
The second principle that is important to understand is the difference in doctrine and methodology between civil law countries and common law countries. In common law countries, which include Great Britain and approximately 80 other countries influenced by the British Empire, a register of Charges is generally available. However, in some common law jurisdictions, registering the Charge is voluntary.
In civil law countries, the most prevalent system of law in the world, there is usually no system comparable to the UCC, and except for new registries (ex-communist countries), a register of Charges is rare. The systems used in civil law countries are possessory and pledge based. These pledge agreements tend not to include intangible property, and information about these agreements is not publicly available. Filings are usually against the asset and not against the entity.
Outside of the United States, UCC equivalent filings and searches are jurisdiction specific, and in those jurisdictions where there is a comparable system, these systems are largely statute based.
One of the most popular jurisdictions for U.S. lenders to file or search for a UCC equivalent is Canada, mainly for reasons of proximity, opportunities arising out of NAFTA, and similar business practices.
Canada has embraced the United States' model of the UCC. In 1967, Ontario became the first province to pass the PPSA, which was based on UCC Article 9. All other common law provinces have followed suit. It should be noted that Quebec is a civil law jurisdiction and has a civil code that parallels the PPSA and UCC model.
Historically in Canada, all differing forms of security interests such as corporate securities and consignments have their own regulating statutes. Hence, each different type of interest had its own set of technical rules concerning attachment, filing, priority, and enforcement. Today, all security transactions of substance fall under the definition of "security interests" and are covered by a singular act, the PPSA. From structure to terminology to collateral categories, the Canadian PPSA and the UCC are very similar. However, since the adoption of Revised Article 9 (RA9) and the new choice of law rules, there is a significant difference between the two regimes.
That difference is choice of law for perfection. The old UCC Article 9's "conflicts regime" was very similar to the PPSA. Previously, under both regimes, the appropriate perfection venue was based on the form of collateral. Now, under RA9, the law of the location of the debtor governs perfection for all forms of collateral, whether tangible or intangible, subject to limited exceptions. Despite this considerable difference, U.S. lenders wanting to do business in Canada should have no problems adapting to the PPSA.1
Common Law Jurisdictions
In common law jurisdictions, the seminal influence, England & Wales, have a Charges register that provides an example of how the register works.
A Charge is simply the security a company gives for a loan. Most Charges must be registered at Companies House. The registration need not be by the company itself. In most cases, registration is by the lender or the lender's agent. To register a Charge, the details of the Charge, together with the original document creating or evidencing the Charge, must be delivered to Companies House within the specified time limit.
If you do not register the Charge in time, then in the event of the company's insolvency, the Charge will be void against the liquidator or administrator and any creditor of the company. This means that the debt for which the Charge was given will remain payable, but it will be unsecured.
There are a few peculiarities to the UK statute. For instance, the client has 21 days from the date of the loan agreement to register the Charge. Do not wait before registering a Charge, especially since the 21 days includes weekends and holidays and, where relevant, rejection and correction time (plus regular mail days).
Another distinctive UK statute norm is that there is no requirement to notify Companies House if the company has fully or partially paid off a Charge or that a Charge no longer belongs to the company. This means that if you are doing a search, you may not obtain an accurate picture of current liens. In that same vein, it is in the company's best interest to notify Companies House when it has paid off a debt.
Many Commonwealth countries such as Hong Kong, Australia, New Zealand, Singapore, Ireland, and BVI have a register of Charges. Each is governed by its own Companies Act.
Note that New Zealand now has a PPSR (Personal Property Securities Register),which brings them more in line with Canada and the U.S. In the BVI, filing is mandatory at the registry level and this differentiates these islands from the other UK Offshore Centers such as the Caymans, where the statutory obligation is on the registered agent to maintain the register of Charges.
Civil Law Jurisdictions
The process for searching and filing liens in a civil law jurisdiction is much more complex. There is no UCC equivalent, and the filing is usually against the asset. Accordingly, assets such as land, patents, and trademarks are the least complicated because you can search against the land registry or the patent and trademark register.
For most other assets, although there is usually a system to register, registration is perfected at certain departments or a ministry in one central location. Accordingly, in many of these civil law jurisdictions, it's a case-by-case analysis because these transactions are getting more complicated and it takes a notary or lawyer in the jurisdiction to see if the agreement falls within local laws. Each country is different, and you need to evaluate the details before you file in the foreign jurisdiction.
U.S. Collateral; Offshore Debtor
One of the most important sets of rules dealing with cross-border financing is RA9. Article 9 comes into play when the debtor is overseas and the collateral is in the U.S. RA9 modified the rules for determining the governing law for perfection (i.e. where to file), the effect of perfection, and priority.
Under RA9, the general rule for determining the law that governs perfection of security interests is the state in which the debtor is located. Formerly, the general rule was collateral location, with limited exceptions.
Changing the governing law to debtor location has the effect of significantly reducing the number of filings since collateral such as inventory and equipment will now require a single filing in one place - the debtor location - rather than in each of the states in which the collateral is located.
So, where exactly is the debtor located? Under RA9, registered organizations such as corporations, limited liability companies, and limited partnerships are located in their state of registration.
RA9 also provides that, with respect to debtors located outside the United States, individuals and entities are located in the foreign jurisdiction if such jurisdiction has a public filing system, but are located in the District of Columbia if the foreign jurisdiction does not have a public filing system. As an added layer of protection, you may also choose to file in D.C. On behalf of lenders, it is imperative to consider RA9 when drafting loan agreements for overseas debtors.2
Article 9 provides regulation and direction when it comes to filings in cross-border financing. There is an alternative to lien searches in jurisdictions where there is no public lien-filing system. Credit or other financial reports may be an acceptable substitute.
A vast amount of information can be gathered in a full credit/status report. The usual information provided in a full report is date of incorporation; incorporation number (if applicable); registered business address; line of business/activity; details of directors/principal officers; number of employees; banking details; organizational structure; share holding; locations; trading terms; references; litigation search; bankruptcy; financials including abridged balance sheet and P/L account (subject to availability); ration analysis; and scientifically evaluated credit rating. In place of a UCC equivalent search, a full status report is a very effective due diligence tool.
It's common for law firms and in-house counsel to feel frustrated by the complexities of navigating international filings and searches. Although countries like Canada and the UK can be straightforward, re-inventing the process for each country is not uncommon, and missteps can be costly.
While many registered agent firms are still early in the process of building-out their international services, a few have complete offerings delivered by experienced professionals. These are the organizations that have the expertise to help you build your own processes or partner with you to deliver international services to your firm.
1 See generally Revised Article 9 and the PPSA - A Comparison of the American and Canadian Secured Property Legal Regimes by Daryl E. Clark, The Secured Lender (January 2003).
2 See generally The New Governing Law for Perfection Under Revised UCC Article 9 by Ben Carpenter, J.D., CCH Focus.
Karen Redman has nearly 15 years of experience as an international trust attorney and business and trust formation expert in both the United Kingdom and the United States. Ms. Redman is a UK-qualified attorney with a diverse understanding of trusts and company structuring.
Prior to relocating to the U.S., Ms. Redman was a Solicitor with Collyer-Bristow and Berwin Leighton Paisner, both based in London, specializing in offshore trusts and company formations.
She earned a BBA from Temple University, Philadelphia, with a double major in Business Law and International Business; followed by her common law professional qualifications at Wolsey Hall, Oxford. She undertook her Law Society Finals at School of Law, Guildford; and completed her LLM in International Tax and Trusts Law at the University of London.
Ms. Redman leads a team of international services experts to assist lawyers, paralegals, and business entities with doing business overseas and domestically. NRAI's International Services Team's expansive expertise includes: document authentications and apostilles; corporate document preparation and filing; secured asset documents search, filing, and retrieval; and registered agent services worldwide.