Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 29

Security interests are intended to cover the risk of non-payment by the debtor of an obligation by allowing the secured creditor, in the case of debtor default, to repossess and sell the encumbered asset, and use the sale proceeds to satisfy the secured obligation according to its priority ranking, established at the time of the conclusion of the loan and security agreement. To the extent that secured transactions law achieves this objective, lenders are encouraged to extend greater amounts of credit and at better terms. This result is likely to assist businesses in growing and avoiding insolvency, but, if insolvency occurs, in becoming reorganized and saved2.

When the debtor becomes insolvent, however, enforcement of security interests may be stayed and secured creditors may not be paid according to their priority ranking because the claims of other creditors, such as the insolvency administrator for the costs of the insolvency proceedings, may be given priority under insolvency law. Thus, the treatment of security interests in insolvency is a crucial issue that is bound to have an impact on the availability and the cost of credit and, as a result, on economic growth and development.

And it is of utmost importance that insolvency law contains clear rules as to the effect of insolvency proceedings on security interests allowing secured creditors to quantify the risks associated with insolvency and take them into account in deciding whether to extend credit and on what terms. While this is primarily a matter of insolvency law, it also requires coordination of insolvency and secured transactions law.

The United Nations Commission on International Trade Law (“UNCITRAL”)3 was among the first international legislative standards formulating agencies to realize the importance of both the treatment of security interests in insolvency and the coordination of insolvency and secured transactions law. Thus, it acted even before national legislators were able to act in many States, including States with developed economies and advanced legal systems. When they were preparing texts on insolvency and secured transactions law, the relevant UNCITRAL Working Groups V (Insolvency Law) and VI (Security Interests) held joint meetings to discuss the treatment of security interests in insolvency. The result of their work is reflected in the UNCITRAL Legislative Guide on Insolvency Law (2004, the “Insolvency Guide”) and the UNCITRAL Legislative Guide in Secured Transactions (2007, the “Secured Transactions Guide”)4.

These two uniform law texts contain commentary, that is, discussion of the relevant policy issues and efficient approaches to those issues, and conclusions in the form of recommendations to the legislator. The purpose of this paper is to briefly discuss some of the key recommendations of these two uniform law texts on the treatment of security interests in insolvency. Section 1 deals with scope, terminology and key objectives of insolvency and secured transactions law, section 2 with encumbered assets in insolvency, section 3 with the effectiveness of security interests in insolvency, section 4 with the priority of security interests in insolvency, section 5 with security interests in post-commencement finance, section 6 with the treatment of security interests in reorganization, section 7 with title and title based-finance in insolvency and section 8 with the law applicable to security interests in insolvency.