The central idea is to provide for uniform rules governing the creation and enforcement of a registered international security interest specifically designed for high-value equipment which by its very nature frequently moves across national borders or even transcends them, such as, for example, airplanes, railway rolling stock and space property. If successful, the convention will be an extremely valuable tool for financing industry which uses such equipment, and it may, in addition, supply proof of the possibility of achieving international unification in the area of security rights, although it cannot be overlooked that creating a uniform regime for security rights in all types of potential collateral is a quite different endeavour.

4. European Bank for Reconstruction and Development

Finally, the Model Law on Secured Transactions which has been prepared by the EBRD, and published in 1994, should be mentioned. Since this volume contains a separate chapter on the Model Law,108 it is not explored further at this point. It suffices to say that although it is not primarily designed as an instrument of harmonisation or unification but rather as a tool for supporting legal reform in Eastern Europe, it could nevertheless assist the EU in its own search for a way to harmonisation.109

B. The approach and purpose of the study

I. The ‘Common Core methodology’ as applied to secured transactions

This study forms part of a larger project, initiated by Mauro Bussani and Hugo Mattei, under the title ‘The Common Core of European Private Law’. Building on the experiences of Rudolf Schlesinger and his team at the Cornell Law School in the 1960s, the project seeks to unearth what is common (or indeed uncommon) among the private law systems of the Member States of the European Union. A specific characteristic of the Common Core project is that the contributors are asked to discuss hypothetical situations instead of presenting their legal systems in an

Uniform Law Review/Revue de droit uniforme. See further Bollweg/Kreuzer, ZIP 2000, 1362; Kronke, in: FS Kegel, 33 f. and the special issue of the ERPL 2004, 3 ff.

108See infra, chapter 5, Dahan/Simpson, ‘The European Bank for Reconstruction and Development’s Secured Transactions Project.’

109See infra, pp. 100 f.

abstract way.110 Since the project seeks to find out how the law deals with problems raised by factual situations, the editors of the individual questionnaires are asked to use as little legal terminology as possible in selecting and formulating the cases. Applied to the subject of secured transactions, this factual approach proved to be both beneficial and problematic. To start with the beneficial aspects, the dangers that are inherent in comparative studies of the classical sort, focusing on concepts and principles, are especially present in the field of property law. If one concentrates primarily on the important dividing lines between abstract and causal, traditional and consensual systems, or on general principles of property law such as the principles of specificity, publicity and numerus clausus, one will certainly be tempted to give much weight to these conceptual differences and perhaps more weight than is justified. The present study shows that these dividing lines and differences in matters of principle have less influence, both on the practical outcome of cases and on the mode of analysis adopted, than one might have thought.111

Turning to the more problematic aspects, we found that in contrast to topics such as ‘Good Faith in European Contract Law’112 or ‘Pure Economic Loss’,113 it was not possible to formulate cases on secured transactions as mere factual situations. Security rights evidently involve rather complex transactions. Therefore, we could not avoid using legal terminology and descriptions of transactions sometimes even including specific contractual clauses. Secondly, we found that it was often not possible to describe the facts of a case in a conclusive manner, since in different jurisdictions the same economic goal might be achieved through different types of transactions. In such cases, we elected to present only a short set of facts describing a basic business situation and the type of collateral which the parties wish to use.114 It was then for the national reporters to state the kind of transaction that could be used or that would normally be used in such instances. Where the facts did include a specific secured transaction, for example a contract of sale

110On the methodology of the Common Core project, see Bussani/Mattei, ‘The Common Core Approach to European Private Law’, published on the project’s website: http://www.jus.unitn.it/dsg/common-core/home.html.

111See, for example, comparative observations to case 4.

112See Zimmermann/Whittaker, Good Faith in European Contract Law.

113See Bussani/Palmer, Pure Economic Loss (forthcoming).

114See particularly cases 10 to 13.

with a retention of title clause, the reporters were requested to state whether that clause was sufficient or whether there was a different or more commonly used form. These latter remarks lead to a third distinct feature of our project. In all but two cases, it was necessary to add to the facts other, more specific questions than just the general ‘What rights do the parties have?’. With those three peculiarities we have deviated to a certain extent from the factual ‘Common Core’ approach, and to that limited extent adopt a more classical type of comparative analysis. Yet, we believe that this deviation from, or adaptation of, the Common Core methodology is inevitable once the studies tackle topics where the transactions which are at the heart of the matter are more complex then just a simple contract.

II. Surveying the legal landscape against the background of a need for harmonisation

The aim of the Common Core project is ‘to obtain at least the mainlines of a reliable geographical map of the law of Europe’,115 whereas the use of this map is, according to the General Editors, ‘of no concern to the cartographers who are drafting it’. In fact, they ‘do not wish to force the actual diverse reality of the law within one single map to attain uniformity’. The project is meant neither as a preservationist activity nor as a move towards a higher degree of private law harmonisation, let alone a step on the way towards a European Civil Code. In contrast to the activities of the so-called Lando Commission,116 the Common Core project is, in the words of its initiators, not engaging in city planning but in agnostic legal cartography.117

The editor and the contributors to the present volume share the goal of providing comparative information which is as thorough and reliable as possible without forcing uniformity where it does not exist. Yet, in contrast to the General Editors and other groups within the Trento project, we are also interested in the second step following the process of stock-taking. The reason has been stated in part A of this introduction:

115Bussani/Mattei, ‘The Common Core Approach to European Private Law’, part 1 a), published on the project’s website: http://www.jus.unitn.it/dsg/common-core/ home.html. See further Bussani, ERPL 2000, 85 (87 f.) and Bussani/Mattei, Rev. int. dr. comp. 2000, 29 (31 f.).

116See Lando/Beale, Principles of European Contract Law, parts I and II, prepared by the Commission on European Contract Law (2000).

117See supra, note 115.