Study On The Application Of Law Of Cross-border Asset Securitization

Asset securitization has its origination from the United States of America as a new kind of financing method in 1970s, and it has become one of the remarkable financial innovations since the 20th century. The primary goal of cross-border securitization is to gain the comparative advantages of capital and law from international capital market as well as from different legal regions; to reduce financing cost; and to achieve the best combination of risk and profit. The conflict of laws arises because the cross-border securitization relates to different legal regions. Moreover, the increasing in operation cost and trading risk becomes even serious because of the conflict of laws. Therefore, it is necessary to study on the application of law of cross-border securitization with the aim to reduce the increasing trading cost. Based on the international conventions and the related regulations of some representative countries, this dissertation studies on the application of law of cross-border securitization, try to find a balance point between flexibility and certainty of the application of laws in cross-border securitization.Chapter 1 briefly describes the operation of asset securitization in the process of internationalization of the legal issues involved, including cross-border transfer of the underlying asset, as well as cross-border issuance and trading of securities of particular importance related to the asset securitization key to the success of international operations. Therefore, the issue of conflict of laws on the research, the law applicable to the operation of the environment, stressed the safety and efficiency has become the main thrust of this article. Resolution of the conflict in the legal way, as in the international civil and commercial transactions, mainly through the conflict of laws conflict of laws and uniform substantive law are two ways to solve, in the asset securitization area of international operations, because of uniform substantive law only relates to only the basis of a transfer of assets in international conventions, the scope is limited, so to adjust the use of conflict of laws is particularly important.Chapter 2 describes the legal basis for the asset transfer application. First, the transfer of the underlying asset will be recognized as the legal nature of assignment of claims, followed by the transfer of claims as a starting point, combined with cross-border asset securitization operation, analysis cross-border transfer of assets in the basic process of assignment of claims arising from the conflict of laws more negative. For the claims of conflict of laws can be transferred, it should be subject to debt domination of proper law of the contract; for the relationship between the assignor and the assignee of the law of conflict of laws, due to the assignment as between the assignor and the assignee of the contract, it should be applied dominated the transfer of proper law of the contract; for the relationship between the assignee and the debtor, the law of conflict of laws, based on the debtor protection considerations apply to the original contract between the creditor and the debtor bound by the applicable law; for the priority issues of conflict of laws, it is Based on the stability and predictability of the transaction consideration applicable to the assignor's location as the International Convention on the Law recognized that the new conflict rules.Chapter 3 makes a study on the application of law of asset-backed securities relating to issuing and trading. Asset-backed securities are the securities issued on the base of assets credit. The application of law in cross-border securities relating to issuing and trading is subjected to formulation of dependency, such as lex personalis, party autonomy, law of the place the securities is situated and lex lociactus. In the indirect holding system, although lex lociactus can make an applicable result as same as the PRIMA rule, it has theoretical shortcomings and specific locations of the transaction in computer networks are difficult to define. The PRIMA rule has its own profound rationality; it is reasonably defined "the place of the property"-the Place of the Relevant Intermediary account and has its reasonable definition of the "attribute of property"-interests in securities. The rule reflects the inheritance and Innovation of the lex reisitae. Chapter 4 deals with the issue of international agreement, including which involved in asset transfer and securities issuing. Convention on Assignment of Receivable in International Trade, this convention conform the anti-assignment clause, also makes the application rules for some legal issue which involved in the cross-border transfer.The Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary(the Hague Convention)which adopts the PRIMA rule generally and formally is also involved. Traditional ways such as the lex rei sitae cannot fit well the indirect holding system.Chapter 5 discusses the current assets securities situation in China, and points out the cross-border securitization is a feasible way to deal with the problems of assets securities in China. The dissertation brings forward some specific suggestions on how to improve our legislations. Based on the practice of China's securities market, we analysis the feasibility and necessity of introducing the PRIMA rule into China. It pointed out that the issuance and transactions of domestic securities have been achieved paperless basically. China, however, the entities legal system of indirectly held is not perfect; the conflict law system is even blank. Finally, in light of China's legal basis and legal traditions, the article gives some suggestions by learning from the experience of foreign legislation.