McCormack, Gerald --- "Convergence, Path-dependency and Credit Securities: The Case Against Europe-wide Harmonisation" [2012] ELECD 363; in Andenas, Mads; Andersen, Baasch Camilla (eds), "Theory and Practice of Harmonisation" (Edward Elgar Publishing, 2012)

Book Title: Theory and Practice of Harmonisation

Editor(s): Andenas, Mads; Andersen, Baasch Camilla

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800013

Section: Chapter 19

Section Title: Convergence, Path-dependency and Credit Securities: The Case Against Europe-wide Harmonisation

Author(s): McCormack, Gerald

Number of pages: 41

Extract:

19. Convergence, path-dependency and
credit securities: the case against
Europe-wide harmonisation*
Gerard McCormack**

Within Europe in recent years there have been two pressure points for reform of
the law governing secured transactions.1 The first pressure point arises out of the
desire by some to create a European Civil Code, a common law for Europe as
you will, and this Civil Code (or Common Frame of Reference, as it is now less
contentiously termed) is envisaged as extending to security rights over property.
The second pressure point stems from lobbying to promote the merits of Article
9 of the American Uniform Commercial Code as the basis for European (and
indeed international) harmonisation of the law of secured transactions. Behind
the second point is the view that Article 9 is normatively superior to other sys-
tems and that, irrespective of national frontiers, the law should converge towards
the best model. This chapter suggests that these theories fail to take adequate
account of the `path-dependent' nature of legal development. They also fail to
pay sufficient regard to the role of national lawyers and other interest groups
in the reform process. To illustrate my thesis, the English experience with an
attempted transplant of Article 9 is singled out for discussion.


* The author would like to thank the British Academy Leverhulme Trust for funding
some of the research on which this chapter was based. An earlier version of this paper
was presented at the WG Hart Workshop at the Institute of ...