CONVENTION ON THE LAW
APPLICABLE TO CERTAIN RIGHTS IN RESPECT OF SECURITIES HELD WITH AN INTERMEDIARY
(Concluded 5 July 2006)
The States signatory to the present Convention,
Aware of the urgent practical need in a large and growing
global financial market to provide legal certainty and predictability as to the
law applicable to securities that are now commonly held through clearing and
settlement systems or other intermediaries,
Conscious of the importance of reducing legal risk,
systemic risk and associated costs in relation to cross-border transactions
involving securities held with an intermediary so as to facilitate the
international flow of capital and access to capital markets,
Desiring to establish common provisions on the law
applicable to securities held with an intermediary beneficial to States at all
levels of economic development,
Recognising that the "Place of the Relevant
Intermediary Approach" (or PRIMA) as determined by account agreements with
intermediaries provides the necessary legal certainty and predictability,
Have resolved to conclude a Convention to this effect, and
have agreed upon the following provisions -
chapter i -
definitions and scope of application
Article 1
Definitions and interpretation
(1) In this Convention -
a)
"securities" means any shares, bonds or other financial instruments
or financial assets (other than cash), or any interest therein;
b) "securities account" means an account maintained by
an intermediary to which securities may be credited or debited;
c) "intermediary" means a person that in the course of a
business or other regular activity maintains securities accounts for others or
both for others and for its own account and is acting in that capacity;
d) "account holder" means a person in whose name an
intermediary maintains a securities account;
e) "account agreement" means, in relation to a
securities account, the agreement with the relevant intermediary governing that
securities account;
f) "securities held with an intermediary" means
the rights of an account holder resulting from a credit of securities to a
securities account;
g) "relevant intermediary" means the intermediary that
maintains the securities account for the account holder;
h) "disposition" means any transfer of title whether
outright or by way of security and any grant of a security interest, whether
possessory or non-possessory;
i) "perfection" means completion of any steps
necessary to render a disposition effective against persons who are not parties
to that disposition;
j) "office" means, in relation to an intermediary,
a place of business at which any of the activities of the intermediary are
carried on, excluding a place of business which is intended to be merely
temporary and a place of business of any person other than the
intermediary;
k) "insolvency proceeding" means a collective judicial
or administrative proceeding, including an interim proceeding, in which the
assets and affairs of the debtor are subject to control or supervision by a
court or other competent authority for the purpose of reorganisation or
liquidation;
l) "insolvency administrator" means a person
authorised to administer a reorganisation or liquidation, including one
authorised on an interim basis, and includes a debtor in possession if
permitted by the applicable insolvency law;
m) "Multi-unit State" means a State within which two or
more territorial units of that State, or both the State and one or more of its
territorial units, have their own rules of law in respect of any of the issues
specified in Article 2(1);
n) "writing" and "written" mean a record of
information (including information communicated by teletransmission) which is
in tangible or other form and is capable of being reproduced in tangible form
on a subsequent occasion.
(2) References in this Convention to a disposition of
securities held with an intermediary include -
a)
a disposition of a securities account;
b) a disposition in favour of the account holder's intermediary;
c) a lien by operation of law in favour of the account holder's
intermediary in respect of any claim arising in connection with the maintenance
and operation of a securities account.
(3) A person shall not be considered an intermediary
for the purposes of this Convention merely because -
a)
it acts as registrar or transfer agent for an issuer of securities; or
b) it records in its own books details of securities credited to
securities accounts maintained by an intermediary in the names of other persons
for whom it acts as manager or agent or otherwise in a purely administrative
capacity.
(4) Subject to paragraph (5), a person shall be
regarded as an intermediary for the purposes of this Convention in relation to
securities which are credited to securities accounts which it maintains in the
capacity of a central securities depository or which are otherwise transferable
by book entry across securities accounts which it maintains.
(5) In relation to securities which are credited to
securities accounts maintained by a person in the capacity of operator of a
system for the holding and transfer of such securities on records of the issuer
or other records which constitute the primary record of entitlement to them as
against the issuer, the Contracting State under whose law those securities are
constituted may, at any time, make a declaration that the person which operates
that system shall not be an intermediary for the purposes of this Convention.
Article 2
Scope of the Convention and of the applicable law
(1) This Convention determines the law applicable to
the following issues in respect of securities held with an intermediary -
a)
the legal nature and effects against the intermediary and third parties of the
rights resulting from a credit of securities to a securities account;
b) the legal nature and effects against the intermediary and third
parties of a disposition of securities held with an intermediary;
c) the requirements, if any, for perfection of a disposition of
securities held with an intermediary;
d) whether a person's interest in securities held with an
intermediary extinguishes or has priority over another person's interest;
e) the duties, if any, of an intermediary to a person other than
the account holder who asserts in competition with the account holder or
another person an interest in securities held with that intermediary;
f) the requirements, if any, for the realisation of an
interest in securities held with an intermediary;
g) whether a disposition of securities held with an intermediary
extends to entitlements to dividends, income, or other distributions, or to
redemption, sale or other proceeds.
(2) This Convention determines the law applicable to
the issues specified in paragraph (1) in relation to a disposition of or
an interest in securities held with an intermediary even if the rights
resulting from the credit of those securities to a securities account are
determined in accordance with paragraph (1)(a) to be contractual in
nature.
(3) Subject to paragraph (2), this Convention
does not determine the law applicable to -
a)
the rights and duties arising from the credit of securities to a securities
account to the extent that such rights or duties are purely contractual or
otherwise purely personal;
b) the contractual or other personal rights and duties of parties
to a disposition of securities held with an intermediary; or
c) the rights and duties of an issuer of securities or of an
issuer's registrar or transfer agent, whether in relation to the holder of the
securities or any other person.
Article 3
Internationality
This Convention applies in all cases involving a choice
between the laws of different States.
chapter ii -
applicable law
Article 4
Primary rule
(1) The law applicable to all the issues specified in
Article 2(1) is the law in force in the State expressly agreed in the
account agreement as the State whose law governs the account agreement or, if
the account agreement expressly provides that another law is applicable to all
such issues, that other law. The law designated in accordance with this
provision applies only if the relevant intermediary has, at the time of the
agreement, an office in that State, which -
a)
alone or together with other offices of the relevant intermediary or with other
persons acting for the relevant intermediary in that or another State -
i)
effects or monitors entries to securities accounts;
ii) administers payments or corporate actions relating to
securities held with the intermediary; or
iii) is otherwise engaged in a business or other regular
activity of maintaining securities accounts; or
b)
is identified by an account number, bank code, or other specific means of
identification as maintaining securities accounts in that State.
(2) For the purposes of paragraph (1) a),
an office is not engaged in a business or other regular activity of maintaining
securities accounts -
a)
merely because it is a place where the technology supporting the bookkeeping or
data processing for securities accounts is located;
b) merely because it is a place where call centres for
communication with account holders are located or operated;
c) merely because it is a place where the mailing relating to
securities accounts is organised or files or archives are located; or
d) if it engages solely in representational functions or
administrative functions, other than those related to the opening or
maintenance of securities accounts, and does not have authority to make any
binding decision to enter into any account agreement.
(3) In relation to a disposition by an account holder
of securities held with a particular intermediary in favour of that
intermediary, whether or not that intermediary maintains a securities account
on its own records for which it is the account holder, for the purposes of this
Convention -
a)
that intermediary is the relevant intermediary;
b) the account agreement between the account holder and that
intermediary is the relevant account agreement;
c) the securities account for the purposes of Article 5(2)
and (3) is the securities account to which the securities are credited
immediately before the disposition.
Article 5
Fall-back rules
(1) If the applicable law is not determined under
Article 4, but it is expressly and unambiguously stated in a written
account agreement that the relevant intermediary entered into the account
agreement through a particular office, the law applicable to all the issues
specified in Article 2(1) is the law in force in the State, or the
territorial unit of a Multi-unit State, in which that office was then located,
provided that such office then satisfied the condition specified in the second
sentence of Article 4(1). In determining whether an account agreement
expressly and unambiguously states that the relevant intermediary entered into
the account agreement through a particular office, none of the following shall
be considered -
a)
a provision that notices or other documents shall or may be served on the
relevant intermediary at that office;
b) a provision that legal proceedings shall or may be instituted
against the relevant intermediary in a particular State or in a particular
territorial unit of a Multi-unit State;
c) a provision that any statement or other document shall or may
be provided by the relevant intermediary from that office;
d) a provision that any service shall or may be provided by the
relevant intermediary from that office;
e) a provision that any operation or function shall or
may be carried on or performed by the relevant intermediary at that office.
(2) If the applicable law is not determined under
paragraph (1), that law is the law in force in the State, or the
territorial unit of a Multi-unit State, under whose law the relevant
intermediary is incorporated or otherwise organised at the time the written
account agreement is entered into or, if there is no such agreement, at the
time the securities account was opened; if, however, the relevant intermediary
is incorporated or otherwise organised under the law of a Multi-unit State and
not that of one of its territorial units, the applicable law is the law in
force in the territorial unit of that Multi-unit State in which the relevant
intermediary has its place of business, or, if the relevant intermediary has
more than one place of business, its principal place of business, at the time
the written account agreement is entered into or, if there is no such
agreement, at the time the securities account was opened.
(3) If the applicable law is not determined under
either paragraph (1) or paragraph (2), that law is the law in force
in the State, or the territorial unit of a Multi-unit State, in which the
relevant intermediary has its place of business, or, if the relevant
intermediary has more than one place of business, its principal place of
business, at the time the written account agreement is entered into or, if
there is no such agreement, at the time the securities account was opened.
Article 6
Factors to be disregarded
In determining the applicable law in accordance with this
Convention, no account shall be taken of the following factors -
a) the place where the issuer of
the securities is incorporated or otherwise organised or has its statutory seat
or registered office, central administration or place or principal place of
business;
b) the places where certificates representing or evidencing
securities are located;
c) the place where a register of holders of securities maintained
by or on behalf of the issuer of the securities is located; or
d) the place where any intermediary other than the relevant
intermediary is located.
Article 7
Protection of rights on change of the applicable law
(1) This Article applies if an account agreement is
amended so as to change the applicable law under this Convention.
(2) In this Article -
a)
"the new law" means the law applicable under this Convention after
the change;
b) "the old law" means the law applicable under this
Convention before the change.
(3) Subject to paragraph (4), the new law
governs all the issues specified in Article 2(1).
(4) Except with respect to a person who has consented
to a change of law, the old law continues to govern -
a)
the existence of an interest in securities held with an intermediary arising
before the change of law and the perfection of a disposition of those
securities made before the change of law;
b) with respect to an interest in securities held with an
intermediary arising before the change of law -
i)
the legal nature and effects of such an interest against the relevant
intermediary and any party to a disposition of those securities made before the
change of law;
ii) the legal nature and effects of such an interest against
a person who after the change of law attaches the securities;
iii) the determination of all the issues specified in
Article 2(1) with respect to an insolvency administrator in an insolvency
proceeding opened after the change of law;
c) priority as between parties
whose interests arose before the change of law.
(5) Paragraph (4) c) does not
preclude the application of the new law to the priority of an interest that
arose under the old law but is perfected under the new law.
Article 8
Insolvency
(1) Notwithstanding the opening of an insolvency
proceeding, the law applicable under this Convention governs all the issues
specified in Article 2(1) with respect to any event that has occurred
before the opening of that insolvency proceeding.
(2) Nothing in this Convention affects the
application of any substantive or procedural insolvency rules, including any
rules relating to -
a)
the ranking of categories of claim or the avoidance of a disposition as a
preference or a transfer in fraud of creditors; or
b) the enforcement of rights after the opening of an insolvency
proceeding.
chapter iii -
general provisions
Article 9
General applicability of the Convention
This Convention applies whether or not the applicable law
is that of a Contracting State.
Article 10
Exclusion of choice of law rules (renvoi)
In this Convention, the term "law" means the law
in force in a State other than its choice of law rules.
Article 11
Public policy and internationally mandatory rules
(1) The application of the law determined under this
Convention may be refused only if the effects of its application would be
manifestly contrary to the public policy of the forum.
(2) This Convention does not prevent the application
of those provisions of the law of the forum which, irrespective of rules of
conflict of laws, must be applied even to international situations.
(3) This Article does not permit the application of
provisions of the law of the forum imposing requirements with respect to
perfection or relating to priorities between competing interests, unless the
law of the forum is the applicable law under this Convention.
Article 12
Determination of the applicable law for Multi-unit States
(1) If the account holder and the relevant
intermediary have agreed on the law of a specified territorial unit of a
Multi-unit State -
a)
the references to "State" in the first sentence of Article 4(1)
are to that territorial unit;
b) the references to "that State" in the second sentence
of Article 4(1) are to the Multi-unit State itself.
(2) In applying this Convention -
a)
the law in force in a territorial unit of a Multi-unit State includes both the
law of that unit and, to the extent applicable in that unit, the law of the
Multi-unit State itself;
b) if the law in force in a territorial unit of a Multi-unit State
designates the law of another territorial unit of that State to govern
perfection by public filing, recording or registration, the law of that other
territorial unit governs that issue.
(3) A Multi-unit State may, at the time of signature,
ratification, acceptance, approval or accession, make a declaration that if,
under Article 5, the applicable law is that of the Multi-unit State or one
of its territorial units, the internal choice of law rules in force in that
Multi-unit State shall determine whether the substantive rules of law of that
Multi-unit State or of a particular territorial unit of that Multi-unit State
shall apply. A Multi-unit State that makes such a declaration shall communicate
information concerning the content of those internal choice of law rules to the
Permanent Bureau of the Hague Conference on Private International Law.
(4) A Multi-unit State may, at any time, make a
declaration that if, under Article 4, the applicable law is that of one of
its territorial units, the law of that territorial unit applies only if the
relevant intermediary has an office within that territorial unit which
satisfies the condition specified in the second sentence of Article 4(1).
Such a declaration shall have no effect on dispositions made before that
declaration becomes effective.
Article 13
Uniform interpretation
In the interpretation of this Convention, regard shall be
had to its international character and to the need to promote uniformity in its
application.
Article 14
Review of practical operation of the Convention
The Secretary General of the Hague Conference on Private
International Law shall at regular intervals convene a Special Commission to
review the practical operation of this Convention and to consider whether any
amendments to this Convention are desirable.
chapter iv -
transition provisions
Article 15
Priority between pre-Convention and post-Convention interests
In a Contracting State, the law applicable under this
Convention determines whether a person's interest in securities held with an
intermediary acquired after this Convention entered into force for that State
extinguishes or has priority over another person's interest acquired before
this Convention entered into force for that State.
Article 16
Pre-Convention account agreements and securities accounts
(1) References in this Convention to an account
agreement include an account agreement entered into before this Convention
entered into force in accordance with Article 19(1). References in this
Convention to a securities account include a securities account opened before
this Convention entered into force in accordance with Article 19(1).
(2) Unless an account agreement contains an express
reference to this Convention, the courts of a Contracting State shall apply
paragraphs (3) and (4) in applying Article 4(1) with respect to
account agreements entered into before the entry into force of this Convention
for that State in accordance with Article 19. A Contracting State may, at
the time of signature, ratification, acceptance, approval or accession, make a
declaration that its courts shall not apply those paragraphs with respect to
account agreements entered into after the entry into force of this Convention
in accordance with Article 19(1) but before the entry into force of this
Convention for that State in accordance with Article 19(2). If the
Contracting State is a Multi-unit State, it may make such a declaration with
respect to any of its territorial units.
(3) Any express terms of an account agreement which
would have the effect, under the rules of the State whose law governs that
agreement, that the law in force in a particular State, or a territorial unit
of a particular Multi-unit State, applies to any of the issues specified in
Article 2(1), shall have the effect that such law governs all the issues
specified in Article 2(1), provided that the relevant intermediary had, at
the time the agreement was entered into, an office in that State which
satisfied the condition specified in the second sentence of Article 4(1).
A Contracting State may, at the time of signature, ratification, acceptance,
approval or accession, make a declaration that its courts shall not apply this
paragraph with respect to an account agreement described in this paragraph in
which the parties have expressly agreed that the securities account is
maintained in a different State. If the Contracting State is a Multi-unit
State, it may make such a declaration with respect to any of its territorial
units.
(4) If the parties to an account agreement, other
than an agreement to which paragraph (3) applies, have agreed that the
securities account is maintained in a particular State, or a territorial unit
of a particular Multi-unit State, the law in force in that State or territorial
unit is the law applicable to all the issues specified in Article 2(1),
provided that the relevant intermediary had, at the time the agreement was
entered into, an office in that State which satisfied the condition specified
in the second sentence of Article 4(1). Such an agreement may be express
or implied from the terms of the contract considered as a whole or from the
surrounding circumstances.
chapter v -
final clauses
Article 17
Signature, ratification, acceptance, approval or accession
(1) This Convention shall be open for signature by
all States.
(2) This Convention is subject to ratification,
acceptance or approval by the signatory States.
(3) Any State which does not sign this Convention may
accede to it at any time.
(4) The instruments of ratification, acceptance,
approval or accession shall be deposited with the Ministry of Foreign Affairs
of the Kingdom of the Netherlands, Depositary of this Convention.
Article 18
Regional Economic Integration Organisations
(1) A Regional Economic Integration Organisation
which is constituted by sovereign States and has competence over certain
matters governed by this Convention may similarly sign, accept, approve or
accede to this Convention. The Regional Economic Integration Organisation shall
in that case have the rights and obligations of a Contracting State, to the
extent that that Organisation has competence over matters governed by this
Convention. Where the number of Contracting States is relevant in this Convention,
the Regional Economic Integration Organisation shall not count as a Contracting
State in addition to its Member States which are Contracting States.
(2) The Regional Economic Integration Organisation
shall, at the time of signature, acceptance, approval or accession, notify the
Depositary in writing specifying the matters governed by this Convention in
respect of which competence has been transferred to that Organisation by its
Member States. The Regional Economic Integration Organisation shall promptly
notify the Depositary in writing of any changes to the distribution of
competence specified in the notice in accordance with this paragraph and any
new transfer of competence.
(3) Any reference to a "Contracting State"
or "Contracting States" in this Convention applies equally to a
Regional Economic Integration Organisation where the context so requires.
Article 19
Entry into force
(1) This Convention shall enter into force on the
first day of the month following the expiration of three months after the
deposit of the third instrument of ratification, acceptance, approval or
accession referred to in Article 17.
(2) Thereafter this Convention shall enter into
force -
a) for each State or Regional
Economic Integration Organisation referred to in Article 18 subsequently
ratifying, accepting, approving or acceding to it, on the first day of the
month following the expiration of three months after the deposit of its
instrument of ratification, acceptance, approval or accession;
b) for a territorial unit to which this Convention has been
extended in accordance with Article 20(1), on the first day of the month
following the expiration of three months after the notification of the
declaration referred to in that Article.
Article 20
Multi-unit States
(1) A Multi-unit State may, at the time of signature,
ratification, acceptance, approval or accession, make a declaration that this
Convention shall extend to all its territorial units or only to one or more of
them.
(2) Any such declaration shall state expressly the
territorial units to which this Convention applies.
(3) If a State makes no declaration under
paragraph (1), this Convention extends to all territorial units of that
State.
Article 21
Reservations
No reservation to this Convention shall be permitted.
Article 22
Declarations
For the purposes of Articles 1(5), 12(3) and (4),
16(2) and (3) and 20 -
a) any declaration shall be
notified in writing to the Depositary;
b) any Contracting State may modify a declaration by submitting a
new declaration at any time;
c) any Contracting State may withdraw a declaration at any time;
d) any declaration made at the time of signature, ratification,
acceptance, approval or accession shall take effect simultaneously with the
entry into force of this Convention for the State concerned; any declaration
made at a subsequent time and any new declaration shall take effect on the
first day of the month following the expiration of three months after the date
on which the Depositary made the notification in accordance with
Article 24;
e) a withdrawal of a declaration shall take effect on the first
day of the month following the expiration of six months after the date on which
the Depositary made the notification in accordance with Article 24.
Article 23
Denunciation
(1) A Contracting State may denounce this Convention
by a notification in writing to the Depositary. The denunciation may be limited
to certain territorial units of a Multi-unit State to which this Convention
applies.
(2) The denunciation shall take effect on the first
day of the month following the expiration of twelve months after the date on
which the notification is received by the Depositary. Where a longer period for
the denunciation to take effect is specified in the notification, the
denunciation shall take effect upon the expiration of such longer period after
the date on which the notification is received by the Depositary.
Article 24
Notifications by the Depositary
The Depositary shall notify the Members of the Hague
Conference on Private International Law, and other States and Regional Economic
Integration Organisations which have signed, ratified, accepted, approved or
acceded in accordance with Articles 17 and 18, of the following -
a) the signatures and
ratifications, acceptances, approvals and accessions referred to in
Articles 17 and 18;
b) the date on which this Convention enters into force in
accordance with Article 19;
c) the declarations and withdrawals of declarations referred to in
Article 22;
d) the notifications referred to in Article 18(2);
e) the denunciations referred to in Article 23.
In witness whereof the undersigned, being duly authorised
thereto, have signed this Convention.
Done at The Hague, on the 5th day of July, 2006, in the
English and French languages, both texts being equally authentic, in a single
copy which shall be deposited in the archives of the Government of the Kingdom
of the Netherlands, and of which a certified copy shall be sent, through
diplomatic channels, to each of the Member States of the Hague Conference on
Private International Law as of the date of its Nineteenth Session and to each
State which participated in that Session.
Không có nhận xét nào:
Đăng nhận xét