EC Treaty, which provides that the Treaty ‘shall in no way prejudice the rules in Member States governing the system of property ownership’, does not forbid harmonisation measures in the area of property law in general. It has the much more limited content of leaving decisions on the privatisation or nationalisation of certain sectors in trade and industry to the discretion of the Member States.85

V. Attempts at harmonisation or unification: past and present

1. European Union

From 1973 to 1980, the European Economic Community made several attempts at solving at least some of the most pressing problems arising out of the non-recognition of security rights among the Member States. In 1973, a draft directive ‘on the recognition of securities over movables without dispossession and of clauses providing for retention of ownership upon sale of movables’ was published.86 The idea was to create an obligation on the part of the Member States to recognise certain security interests validly established in the country of origin and to give the secured party those rights which it would have as a pledgee according to the law at the new situs. However, it was planned that such recognition and enforcement would be dependent on prior registration of the security right. Since no agreement could be reached on the system of registration, the project was not carried further forward. In 1979/1980 the EEC Commission made a second attempt, this time limited to the simple retention of title.87 The draft directive required the Member States to recognise retention of title validly created according to the laws of a Member State provided it was agreed upon in writing not later than at the time of delivery of the goods. The Member States should grant the seller a right to revindicate the goods if the buyer became insolvent or if execution was made against the goods on behalf of a third-party creditor. The work on this project was terminated in 1980 because the

85Kaufhold, Internationales und Europäisches Mobiliarsicherungsrecht 283 f.; Kieninger, Mobiliarsicherheiten im Europäischen Binnenmarkt 127 f.; Rutgers, International Reservation of Title Clauses 175, each with further references. Contra: Sonnenberger, ZVglRWiss 95 (1996) 3 (27); Gambaro, ERPL 1997, 497.

86Document XI/466/73-D, printed as ‘Appendix’ to Drobnig/Goode, in: Simmonds/Goode,

Commercial Operations in Europe 339 (378).

87The documents are not published. As to the content of the draft directive, see Goode,

The Company Lawyer 1 (1980) 185 and Kieninger, Mobiliarsicherheiten im Europäischen Binnenmarkt 223 ff.

and the seller before the delivery of the goods.’ This provision not only lacks any reference to the rights of the buyer as against third parties, it is also deprived of any meaning through the reference to the applicable national provisions designated by private international law.95 In sum, the EU has not yet been able to adopt any meaningful harmonisation measure with respect to security rights despite more than thirty years of work.

2. UNCITRAL

The United Nations Commission on International Trade Law (UNCITRAL) started in the late 1970s to consider a worldwide attempt at unifying securities law, yet, apart from the thorough comparative report prepared by Ulrich Drobnig96 and further studies carried out by the UNCITRAL secretariat,97 nothing happened at the time. At its thirteenth session, the Commission decided to take the topic off its agenda because ‘worldwide unification of the law of security interests . . . was in all likelihood unattainable’.98 More than ten years later the subject was revived, albeit within a more limited framework. In 1993, UNCITRAL started to work on what has now become the UN Convention on the Assignment of Receivables in International Trade.99 The Convention includes both assignment of international receivables and international assignment of ‘national’ receivables (article 1(1)(a)) and extends its scope of application to assignments which are made for security purposes (article 2(a)). By expressly allowing bulk assignments and assignments of future receivables, the Convention would probably solve at least some of those problems which

95See in greater detail, Kieninger, in: Basedow et al., Aufbruch nach Europa -- 75 Jahre Max-Planck-Institut für Privatrecht 151 ff.; Milo, ERPL 2003, 379 ff. A more favourable interpretation is given by Schulte-Braucks/Ongena, ERPL 2003, 519 ff. (534 ff.).

96Study by Ulrich Drobnig on behalf of UNCITRAL, published as Report of the Secretary-General: study on security interests (A/CN.9/131) Annex, UNCITRAL Yearbook 1977, part two, II. A.

97Note by the Secretariat on Article 9 of the Uniform Commercial Code of the United States of America (A/CN.9/132), UNCITRAL Yearbook 1977, part two, II. B. 222 ff.; Report of the Secretary-General: security interests; feasibility of uniform rules to be used in the financing of trade (A/CN.9/165), UNCITRAL Yearbook 1979, part two, II. C. 81 ff.; Report of the Secretary-General: security interests; issues to be considered in the preparation of uniform rules (A/CN.9/186), UNCITRAL Yearbook 1980, part two, III.

D.89 ff.

98UNCITRAL, thirteenth session, Official Records of the General Assembly, Thirty-fifth Session, Supplement No 17 (A/35/17), para. 26--28, UNCITRAL Yearbook 1980, part one,

II.A. 10 ff.

99See supra, note 78.

in international receivables financing are created by the present divergencies set out below in the context of cases 5, 6, 12 and 13, provided the Convention was signed by the EU Member States.100 Finally, it should be mentioned that UNCITRAL is presently taking up again the wider subject of security rights over tangible and intangible movables. The Commission has started work on a draft legislative guide on secured transactions which will be directed to assisting states in modernising their secured transactions law, including possible moves towards harmonisation. At its thirty-fourth session held in 2001, the Commission considered an exploratory report101 and constituted a working group.102

3. UNIDROIT

The International Institute for the Unification of Private Law (UNIDROIT)103 has also been active in the field of security rights.104 In the late 1980s, it successfully completed two conventions, one on international financial leasing105 and the other on international factoring.106 However, both have until now met with only limited interest from EU Member States. The Leasing Convention has been ratified by France and Italy, the Factoring Convention by France, Italy and Germany. Even more relevant to our field of interest is the recently adopted Cape Town Convention on International Interests in Mobile Equipment which is supplemented by a Protocol on Matters Specific to Aircraft Equipment.107

100However, it should not be overlooked that the Convention leaves to national law most questions relating to the relationship between the parties to the assignment and third parties such as creditors of the assignor. Such questions of priority are left to be decided by the law of the State in which the assignor is located (article 22). The Annex of the Convention which provides various alternatives for substantive rules on priority issues only becomes applicable if the Contracting State makes a declaration to that effect (article 42).

101Security Interests, Note by the Secretariat, Doc. A/CN.9/496.

102UNCITRAL Report on its thirty-fourth session, 25 June--13 July 2001, Doc. A/56/17 paras. 346--359; the present status of the draft legislative guide is published on UNCITRAL’s web-site, www.uncitral.org.

103All texts referred to in this paragraph are available on the official website of UNIDROIT: http://www.unidroit.org.

104See most recently the various contributions delivered on the occasion of the 75th anniversary of UNIDROIT’s founding. Unif. L. Rev./Rev.dr.unif. 2003, 321 ff.

105UNIDROIT Convention on International Financial Leasing (Ottawa, 28 May 1988).

106UNIDROIT Convention on International Factoring (Ottawa, 28 May 1988).

107Both signed at Cape Town on 16 Nov. 2001. Draft asset-specific protocols on railway rolling stock and on space property are under consideration. See, on the Draft Convention and the various draft protocols, the contributions in issue 1999--2 of the