Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 23

There is probably no universally recognised definition of “security” or “security rights” but it is generally taken as meaning a right over property to ensure the payment of money or the performance of some other obligation. The property over which security is taken is referred to as “secured” or “collateralised”.

The United Nations Commission on International Trade Law (UNCITRAL) has suggested that modern security rights laws8 can have a significant impact on the availability and the cost of credit9. It observed:

“The key to the effectiveness of secured credit is that it allows borrowers to use the value inherent in their assets as a means of reducing credit risk for the creditor. Risk is mitigated because loans secured by the property of a borrower give lenders recourse to the property in the event of non-payment. Studies have shown that as the risk of non-payment is reduced, the availability of credit increases and the cost of credit falls. Studies have also shown that in States where lenders perceive the risks associated with transactions to be high, the cost of credit increases as lenders require increased compensation to evaluate and assume the increased risk. In some countries, the absence of an effective secured transactions regime has resulted in the virtual elimination of credit for consumers or commercial enterprises10”.

One benefit of security is that it provides the creditor with priority over other creditors in the event of the debtor becoming insolvent. It may also provide the creditor with a measure of control over the assets enabling the creditor to control, or at least influence, the time at which the secured assets are sold. Such “control” rights also give the creditor a strong hand if the debtor proposes to restructure or reschedule the loan. If the creditor has security, the debtor is “incentivised” to meet the secured loan commitments because failure may lead to the loss of an asset that is crucial to the carrying on of the debtor’s business. Security rights also opens up the possibility of the creditor being able to exercise self-help remedies i.e. enforcement of security without recourse to the courts. Self-help however, remains controversial in many countries both as a theoretical concept and also as a tool for practical implementation.

Economists suggest that security plays a crucial role in lending decisions by addressing the problems of adverse selection, moral hazard and uninsurable risk. Adverse selection refers to the fact that some borrowers may turn out to be untrustworthy or unreliable. Moral hazard refers to the possibility that a borrower may abscond with the loan. Uninsurable risk is reduced thereby allowing more concentrated lending since the assets secured serve as an alternative repayment mechanism11.

The Restructuring Directive does not define “security rights” or “secured creditors”. The closest to a definition comes in Article 2. Article 2(2) defines “affected parties” as meaning creditors, or classes of creditors whose claims are directly affected by a restructuring plan. “Affected parties” may also include “workers” or “equity holders”. The former expression is not defined in the Directive but “equity holder” is defined in Article 2(3) as meaning “a person that has an ownership interest in a debtor or a debtor’s business, including a shareholder, in so far as that person is not a creditor”.

The Restructuring Directive is in many ways a sister, or at least a close cousin to Regulation 2015/848 on Insolvency Proceedings. It is contemplated that procedures introduced in national law under the Restructuring Directive will be “scheduled” under the Insolvency Regulation which means that will be entitled to automatic recognition in other EU Member States. The “scheduling” is not made mandatory however12.

The Insolvency Regulation comes closer to defining “security rights” but still it falls short of a full definition. The relevant provision is in Article 8 of the Regulation which provision finds an exact counterpart in Article 5 of the “original” Insolvency Regulation – Regulation 1346/2000 and in the abortive draft Convention on Insolvency Proceedings13. Article 8 refers to “rights in rem” (proprietary rights) rather than security rights. Article 8 provides that the opening of insolvency proceedings (which includes restructuring proceedings) shall not affect the rights in rem of creditors over assets belonging to the debtor which are situated within the territory of another Member State at the time of the opening of proceedings.

Rights in rem are seen in the Insolvency Regulation as playing a crucial role in facilitating access to credit. This is explained in recital 68 which refers to the fact that rights in rem are of considerable importance for the granting of credit and there is a particular need for applying the lex situs14 rather than the law of the State that opens the insolvency proceedings where the situs is another Member State.

The CJEU has addressed what is now Article 8 on some occasions15. In Lutz v Bäuerle16, the court said that the provision enables a creditor to assert effectively, and even after the opening of insolvency proceedings, a right in rem that was established before the opening of those proceedings. Moreover, in order to enable the creditor to assert its right in rem effectively, in principle that creditor must be able to exercise the right under the lex causae after the opening of the insolvency proceedings. The particular conditions under the lex causae, i.e. the law of the State where the assets are located, would apply rather than the law of the State of the opening of proceedings.

The abortive convention on Insolvency Proceedings was accompanied by the unofficial Virgos-Schmit Report17, which has treated as influential in many cases. The Virgos-Schmit report noted that there was no exhaustive definition of a right in rem and suggested that to create such a definition might conflict with the definition of a right in rem in the Member State where the assets were located18. Thus the characterisation of a right in rem should be sought according to national laws. It suggested that the only departure from this view was to be found in what is now Article 8(3)19. This makes specific provision to the effect that a right, recorded in a public register and enforceable against third parties, under which a right in rem is obtained within the meaning of Article 8(1), is to be considered a right in rem.

The CJEU has also held that a right in rem includes a national rule pursuant to which real property tax debts are by operation of law a charge on real property. The property owner must therefore accept enforcement of the charge against the property20. The court referred to the existing case-law and said that the basis, validity and extent of a right in rem must normally be determined according to the law of the place where the asset concerned is situated21. It also rejected the proposition that what is now Article 8 only gave protection for commercial or credit contracts. It said that a limitation based on the commercial origin of the right in rem concerned would be contrary to the objective of safeguarding legitimate expectations and the certainty of transactions22. There could be no discrimination based on the identity of the creditor23.

The Virgos-Schmit Report, while leaving specific definitions up to national law cautioned against “an unreasonably wide interpretation of the national concept of a right in rem so as to include, for example, rights simply reinforced by a right to claim preferential payment24”. Accordingly, Article 8(2) provides a non-exhaustive list of the rights covered by Article 8(1). This list is at least a partial definition and consists of rights which “are normally considered by national laws as rights in rem25”.

Article 8(2) states that the rights referred to shall, in particular, mean (a) the right to dispose of assets or have them disposed of and to obtain satisfaction from the proceeds or income from those assets, in particular by virtue of a lien or a mortgage26; (b) the exclusive right to have a claim met, in particular a right guaranteed by a lien in respect of the claim or by assignment of the claim by way of a guarantee27; (c) the right to demand the assets from, and/or to require restitution by, anyone having possession or use of them contrary to the wishes of the party so entitled28; and (d) a right in rem to the beneficial use of assets29.

The guidance provided by Article 8(2) is somewhat general however, and its application will depend on the extent to which alleged rights in rem existing under national law correspond with the characteristics identified in the provision (which is in any event not exhaustive). The fourth element is particularly problematic for under common law systems, the most economically advantageous form of security is the charge where the debtor, rather than the secured creditor, has possession and use of the secured property. In ordinary parlance, one could say that the debtor and not the creditor has beneficial use of the assets unless and until the creditor takes enforcement proceedings. There are other indications, however, that it was not intended to disqualify non-possessory security from counting as a right in rem. Article 8(1) refers to rights in rem of creditors or third parties in respect of “both specific assets and collections of indefinite assets as a whole which change from time to time” and para. 104 of the Virgos-Schmit Report suggests that the common law floating charge counts as a right in rem. The essence of the floating charge is that the debtor has management autonomy over the assets that serve as security until some event – known as a crystallising event – occurs that brings this autonomy to an end. To put it another way, the debtor has beneficial use of the assets until crystallisation30.

The Restructuring Directive leaves Member States with considerable optionality in the implementation of its provisions. In many cases, it appears that States were unable to reach agreement on a common way forward. It is not surprising therefore, that the Directive is “less” than the Insolvency Regulation in this respect and never even attempts a definition of “security rights”. It clearly impacts however, what are generally understood to be security rights in certain respects and most notably in relation to the restructuring moratorium and restructuring plans. The paper will now consider the restructuring moratorium.