Property in Securities: A Comparative Study by Eva Micheler
It is, in a sense, a shocking thing that the law cannot tell you for sure whether you do or do not own something. Unfortunately the law of ownership of securities appears to be in such a state.Worse, this is not exclusively an English a¥iction, and the laws ofmany EUmember states not only have diverse approaches to common legal problems relating to securities ownership but also a range of questionswhich are di⁄cult if not impossible to answer with certainty and clarity. Reform is clearly needed if the EU’s objective of a single market in investments is to be achieved. This book is a useful contribution to the understanding of why there are differences between the laws of member states. Dr Eva Micheler has been closely involved with the work of the EU Commission’s ‘‘Legal Certainty Project’’, which is intended to lead to a codi¢ed system of law across the EU to improve harmony and certainty about the rights enjoyed by investorswho hold their securities in an account with an intermediary. She analyses the laws of England and Wales and compares them with those in Germany and Austria, pointing up the areas of similarity as well as the di¡erences.What is heartening is that there are clearly many areas of similarity: the central thesis of the book is that convergence of laws, even across very di¡erent legal traditions, is achievable. English readers will ¢nd the explanations of the law helpful, clear and informative. English law has evolved along a tortuous path through law and equity, with the result that simple questions like ‘when does title pass?’ cannot be answered simply. DrMicheler sets out amenu of possible answers to this question and analyses each of them clearly. It would be interesting to study the impact of the contract between buyer and seller on the moment at which title passes. English law has traditionally had greater respect for the ability of contracts to alter ownership, and it seems likely that modern English courts would allow title in securities to pass in equity at a time agreed between the parties, provided that the seller has done everything in its power to divest itself of the securities (these days, that will typically be sending dematerialised instructions to CREST). This is likely to be so even if some of the pre-requisites to a title transfer in equity which have historically been expected are missing. DrMicheler sets out the theories in away which can easily be understood by a student or a trainee being asked to research the problem, and can quickly be turned to practical use in advice to a client.The analysis is concise as well as being thorough, and expressed in a stylewhich is accessible and comprehensible to those unfamiliar with the English legal tradition, or feel that it is too long since they studied the subject in the classroom.The authorities (in particular the pragmatic decision inHunter vMoss [1994] 1WLR 452, which has been unfairly criticised by some academics) are analysed in a way which is sympathetic to the needs of the market. Practitioners dealingwith questions relating to transfers and settlement of German orAustrian securitieswill similarly ¢nd the description of the lawand how it has evolved into its current state informative and interesting. Possession of the Wertpapier ^ the value of the security is in the paper itself, not the shareholders’ Reviews