De la réforme et de l'harmonisation du droit des sûretés dans un contexte de mondialisation de l'économie : vers un retour au paradigme de l'uniformisation du droit?
The reform and harmonization of secured transactions on movable (or personal) property is fostered by international organizations, on the assumption that an efficient regime of secured transactions will give access to affordable credit to a large number of persons and corporations.  Such reform and harmonization process can be explained according to its two main features. Firstly, in Western and developped countries, the focus is on endeavours to harmonize the various regimes internally and to establish special regimes with respect to specific assets (for instance, high value mobile equipment, such as aircrafts, rolling stock or satellites, on the one hand, or incorporeal property, including securities, financial assets or security entitlements, on the other hand).  Even though some differences remains from a systemic point of view, north american and european regimes are based on similar principles and achieve comparable results.  It is therefore possible to see the emergence of a transnational legal order in the law of secured transactions, based on individuals and the enforcement of their rights of ownership, ascertained by the Rule of Law principle. Secondly, international financial institutions are encouraging the implementation of secured transactions regimes in developing countries along the same criteria as those used in Western developed countries, in the context of institutional and legal reforms under governance and rule of law projects.  However, Western regimes must be adapted and customized before they are transplanted into a developing country.  Indeed, for socio-cultural and political reasons, it is not possible to establish the same kind of regime therein.  When individual rights and freedoms, including the right of ownership and the Rule of Law, are not recognized, the reform and harmonization of secured transactions is not likely to happen. The status of advancement of the reform and harmonization of secured transactions in the developed world is illustrated by a comparison between the Uniform Commercial Code, the Civil Code of Québec, the Personal Property Security Acts of canadian common law provinces, the applicable principles under both French and English Law, and the influence of European Law on its member states.  An analysis of the main harmonization instruments proposed by international organizations is also conducted. Finally, the pitfalls of governance and rule of law reform projects are well described by two case studies.  The first one deals with real estate and mortgage law reforms in Egypt, with a goal to encourage affordable access to housing;  the second one is about urban planing and housing reforms in the Democratic Republic of Congo.  The existence of a multiplicity of legal orders in these countries explains the difficulties encountered in such reform processes.
common law Secured Transactions Comparative Law Civil Law Common Law Islamic Law African Customary Law Rule of Law Law and Development World Bank