2015年-德勤全球_Deloitte_Legal_Guide_to_Cross-Border_Secured_Transactions_140页_1mb

Summary of Guide to Cross-Border Secured Transactions

Introduction

This guide provides information on cross-border secured transactions across 27 jurisdictions, including Europe, South America, and South-East Asia. It is intended to assist creditors and security providers in understanding the legal frameworks for structuring, taking, and enforcing security interests in different countries. The guide highlights that while general principles apply, significant legal differences exist, and local expertise is essential for each transaction.

Core Content

1. Types of Security Available

• Security in rem: Includes pledges over tangible assets, receivables, contracts, bank accounts, intellectual property, shares, and business (floating charge).
• Title transfer as security: Recognized in specific contexts, such as financial collateral arrangements, operational or financial leasings, and property reserve clauses.

2. Types of Assets Subject to Security

• Security may be established over all types of assets, including rights.
• Some jurisdictions restrict security over certain assets to specific creditor categories:
  • Belgium: Pledge of a business is only available to credit institutions.
  • Belarus: Mortgages on land may only be taken by banks with special licenses.
  • Ukraine: Agricultural land may only be mortgaged to banks.

3. Types of Obligations That May Be Secured

• Mortgages, pledges, and guarantees may secure obligations of any kind, including future obligations.
• Guarantees can only secure real obligations.

4. Validity and Perfection Requirements

• Security interests generally require registration or filing with a public authority (publicity formalities).
• Constitutive effects: Security is not valid until publicity is completed (e.g., Chile, Croatia, Serbia).
• Enforceability effects: Security is valid but not enforceable against third parties until publicity is completed (e.g., Romania, Belgium).
• Perfection requirements:
  • The right of pledge arises from the conclusion of the agreement.
  • For assets to be transferred to the pledgee, the right arises from the transfer of the property.
  • If registration is required, the right arises after registration.

5. Publicity Timing and Costs

• Real Estate Assets:
  • Timing: Varies from 7 days to up to one month.
  • Costs: Typically include notary fees, land book fees, and registration fees, ranging from EUR 50 to EUR 660,000.
• Non-Real Estate Assets:
  • Timing: Usually within one day or less.
  • Costs: Generally lower, with some jurisdictions having registration costs under EUR 20.

6. Rights Acquired by the Secured Creditor

• Secured creditors may satisfy their claims from the asset before other creditors and unsecured creditors.
• Rights include checking the availability and storage of pledged property, claiming early fulfillment if obligations are violated, and accessing insurance compensation for mortgaged property.

7. Governing Law

• The law of the jurisdiction where the security has its principal place of activity governs the security agreement.
• For real estate, the law of the property's location applies.
• In Belarus, Belarusian legislation applies regardless of the location.

8. Legal Concerns When Taking Security

• Restrictions on financial assistance, corporate asset abuse, and invalidation of security due to lack of valid cause or corporate benefit.
• In some jurisdictions, like the Netherlands, the debtor has no right to challenge enforcement of property law security rights.
• In others, like Romania, challenges can suspend enforcement.

9. Enforcement Issues

• Court involvement: Required in most jurisdictions for real estate enforcement, except in Poland and Serbia where out-of-court procedures are possible.
• Enforcement timeframes:
  • Non-Real Estate: Less than one month (out of court) or two months (court).
  • Real Estate: Up to one year or more, depending on the jurisdiction.
• Enforcement cancellation: Unlawful acts may result in cancellation of enforcement, with possible restoration to the original condition.

10. Secured Creditors' Position in Insolvency

• Secured creditors are typically ranked in the fourth turn for satisfaction, after individuals liable for injury, wages, and taxes.
• In some jurisdictions, such as Belarus, secured creditors may rank lower (e.g., fourth or fifth).
• In the Netherlands, secured creditors can enforce their rights as if there was no bankruptcy.
• In Estonia and Romania, secured creditors may not be first in line for satisfaction of claims.

Key Recommendations

1. Consider local specifics early: When structuring cross-border transactions, take into account the local legal environment to manage risks and optimize creditor protection.
2. Seek local legal advice: Legal opinions should be carefully reviewed, especially regarding insolvency-related rights and obligations.
3. Be aware of corporate reorganizations: The domicile of holding companies can significantly affect the enforceability and availability of secured finance.
4. Understand publicity formalities: These vary in timing and cost, and are crucial for enforceability against third parties.

Key Contacts

• Svetlana Gritsouk

  • Tel: +37 5 172 000 353
  • Email: sgritsouk@deloitte.by

• Marina Khliaba

  • Tel: +37 5 172 000 353
  • Email: mkhliaba@deloitte.by

• Yury Veremeiko

  • Tel: +37 5 172 000 353
  • Email: yveremeiko@deloitte.by

Disclaimer

The information in this guide is general in nature and may not replace transaction-specific legal advice. Laws may change, and differences across jurisdictions are substantial. Local expertise is essential for effective cross-border secured transactions.