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Insolvency and secured transactions law have different overall objectives. The overall objective of an efficient and effective insolvency law is the provision of market certainty to promote economic stability and growth. In order to achieve this overall objective, insolvency law must essentially facilitate the maximization of the value of the assets in the insolvency estate to the benefit of all creditors, preferential, secured and unsecured. To the contrary, the overall objective of an efficient and effective secured transactions law, is to promote low-cost credit by enhancing the availability of secured credit. To achieve this objective, secured transactions law must essentially provide special protection for secured creditors.

All these objectives cannot be achieved without a balanced coordination of insolvency and secured transactions law. The Insolvency Guide and the Secured Transactions Guide set a high standard for that coordination. As the treatment of security interests in insolvency is predominantly a matter of insolvency law, the Insolvency Guide takes the lead in analysing the relevant issues and setting out the key legislative recommendations. For the sake of the difference audience of secured transactions law, the Secured Transactions Guide summarizes this discussion and adds some clarifications and legislative recommendations that are consistent with the policies of the Insolvency Guide. To assist their respective readers, the two guides follow a different approach to the organization of the relevant material. The Insolvency Guide discusses secured claims in the context of each chapter in which the relevant matters arise (e.g., stays, treatment of contracts, avoidance, ranking of claims, etc.). At the same time, the Insolvency Guide contains in Annex I a list of references to the paragraphs and recommendations in which the treatment of secured creditors in insolvency proceedings is addressed. As these are matters that should be addressed in insolvency law and the Secured Transactions Guide deals mainly with matters to be addressed in secured transactions law, the Secured Transactions Guide presents all the relevant issues in a separate chapter that is mainly addressed to the national legislator preparing insolvency legislation.

In line with the Insolvency Guide and the Secured Transactions Guide, inter alia:

(a) The debtor’s interests in encumbered assets and third-party owned assets should be part of the estate and subject to stays of individual enforcement actions);

(b) Secured creditors may seek relief from the stay (e.g., termination or modification of the stay, protection of the encumbered assets from diminution of their value;

(c) In principle, security interests should retain their pre-commencement effectiveness and priority, subject, however, to avoidance of fraudulent and preferential transfers and to superior statutory preferential rights;

(d) In principle, security interests securing post-commencement finance should not have priority over security interests securing pre-commencement finance, unless the existing secured creditors or the insolvency court approves such priority subject to certain conditions aimed at the protection of existing secured creditors;

(e) If a reorganization plan impairs or modifies the rights of secured creditors, secured creditors should be allowed to vote on the plan and, if the requisite majority approves that plan, dissenting creditors should be bound by the plan, but their rights should be protected;

(f) In principle, the exact treatment of third-party owned assets should depend on the characterization of the rights of the third parties as security or title, although, even if secured transactions law characterizes those rights as title, third-party owned assets should be treated in several respects in the same way as encumbered assets; and

(g) The law applicable to security interests in insolvency should be the lex fori concursus, at least with respect to mandatory insolvency law matters, such as such as avoidance, treatment of secured creditors, ranking of claims or distribution of proceeds.

(1) Spyridon V. Bazinas is a law lecturer, author and independent consultant on trade law reform matters. This paper expands on a presentation by the author at a Congress of the University of Madrid on 21 April 2021.

(2) For the positive impact of security interests on credit, see Woody Fleisig, Secured Transactions: The Power of Collateral (1996), available at https://www.imf.org/external/pubs/ft/fandd/1996/06/pdf/fleisig.pdf.

(3) UNCITRAL is the acronym for the United Nations Commission on International Trade Law, the core legal body of the United Nations system in the field of international trade law (https://uncitral.un.org).

(4) In the Insolvency Guide, the discussion of the treatment of security interests in insolvency is dispersed throughout the text of the Guide. To assist the reader, the Insolvency Guide contains in Annex I (p. 287) a list of references to the security interest-related discussion and recommendations of the Insolvency Guide. The Secured Transactions Guide contains the relevant discussion in chapter XII.

(5) Insolvency Guide, Introduction, paras. 1-5.

(6) Insolvency Guide, Introduction, paras. 6-12.

(7) Insolvency Guide, Part one, paras. 1-14 and Recs. 1-5.

(8) Secured Transactions Guide, Chapter I, paras. 2-24 and Rec. 2.

(9) Secured Transactions Guide, Chapter I, paras. 25-31 and Rec. 3.

(10) Secured Transactions Guide, Introduction, paras. 15-20 and Chapter XII, paras. 7-12.

(11) Secured Transactions Guide, Introduction, paras. 46-59 and rec. 1.

(12) Insolvency Guide, Part two, paras. 7-16 and rec. 35.

(13) Insolvency Guide, Part two, II para. 32.

(14) Insolvency Guide, Part two, II, paras. 58-73, and recs. 39, 50 and 51.

(15) Secured Transactions Guide, Chapter XII, paras. 52 and 53, and recs. 39, 50 and 51.

(16) Secured Transactions Guide, Chapter XII, paras. 21-25, and recs. 235 and 236.

(17) Insolvency Guide, rec. 4.

(18) Insolvency Guide, Part two, II, paras. 180 and 181, and recs 87 and 88.

(19) Insolvency Guide, part two, II, paras. 108-147, and recs. 69.

(20) Insolvency Guide, part two, II, paras. 208-215, and rec. 101.

(21) Insolvency Guide, part two, II, para. 32 and Secured Transactions Guide, chapter XII, para. 28, and rec, 238.

(22) Insolvency Guide, part two, V, paras. 62-65, and recs. 188 and 189.

(23) Secured Transactions Guide, chapter XII, paras. 59-63, and rec. 239.

(24) Insolvency Guide, part two, II, paras. 94-107, and recs. 64-67.

(25) Secured Transactions Guide, chapter XII, paras. 37 and 38.

(26) Insolvency Guide, part two, IV, paras. 34-39, and recs. 146, 150 and 151.

(27) Insolvency Guide, part two, IV, paras. 66-69, and recs. 49(c)(ii), 50, 51(b), 54(a), 58(d), 59(c) and 67(c).

(28) Secured Transactions Guide, chapter XII, paras. 47-53, and rec. 242.

(29) Insolvency Guide, part two, II, paras. 10-12, and recs. 35, 39-51, 52, 54 and 69-86.

(30) Secured Transactions Guide, chapter XII, paras. 64-67.

(31) Insolvency Guide, part two, I, paras. 85-91, and recs. 30-35, 39-51, 52, 54, and 69-86.

(32) Secured Transactions Guide, chapter X, paras. 80-82 and rec. 223, and chapter XII, paras. 14-17.