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Capital Markets Law Journal Advance Access originally published online on March 5, 2008
Capital Markets Law Journal 2008 3(2):109-125; doi:10.1093/cmlj/kmn001
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© The Author (2008). Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

A transactional approach to the Hague Securities Convention

Carl S. Bjerre and Sandra M. Rocks*
*Carl S. Bjerre is Professor of Law at the University of Oregon School of Law.

The first 150 words of the full text of this article appear below.


Key points

  • Transactions involving intermediated securities – ie securities that are held in an account with a broker, bank, clearing agency or other intermediary – demand a high degree of ex ante legal certainty. However, for intermediated securities accounts and transactions that reach across borders as is increasingly prevalent, the traditional conflicts of law rules for many of the most important commercial law issues fail to provide this certainty.
  • The Hague Securities Convention provides a modern and practical approach for determining the applicable law. In most cases, the express terms of the agreement between the applicable account holder and its intermediary will be determinative, including as against third parties, provided that at the time of the agreement the intermediary is engaged in the business of maintaining securities accounts in the specified jurisdiction. The Convention is expected to be ratified in some nations fairly soon.
  • Once the Convention becomes effective, it . . . [Full Text of this Article]

 

   1. The Convention as a response to evolving markets
 

   2. Certainty as to applicable law as the result of express agreement
 
Scope of the law chosen: issues, definitions and internationality
Express agreement in either of two forms
The Qualifying Office requirement

   3. Fall-back rules and pre-Convention agreements
 
The fall-back rules
Pre-Convention agreements

   4. Conclusion
 

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