stanford presentation financial-leasing_20-09-2012
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10TH ANNIVERSARY OF COMPANY LAW
(Riga, 20-21 September 2012)
THE UNIDROIT MODEL LAW ON LEASING
by Mr M.J. Stanford
Immediate past Deputy Secretary-General
Unidroit
Objectives
• Potential of leasing as an engine of growth
• Particularly serious shortfall in infrastructure
financing in Africa
• Link between establishment of modern legal
framework for leasing and attracting of foreign
investment
Background
• Unidroit’s preparation of 1988 Convention on
International Financial Leasing
• Provision of a model for countries
contemplating drafting of national law
• International Finance Corporation’s efforts to
establish national leasing industries as a means
of creating sustainable private sector
development
Procedure
• Initial Advisory Board:
– three sessions (October 2005 / February 2006 /
April 2006) for preparation of first draft
– manned by leasing law experts from all parts of the
world, facilitated by Unidroit’s network of expertise
Procedure (continued)
• Intergovernmental negotiations
– Committee of governmental experts
• two sessions (May 2007 and April 2008), held in
Johannesburg and Muscat
– Joint session of Unidroit General Assembly and
Committee of governmental experts
• adopting Model Law in Rome in November 2008
– attended by 44 States
The Model Law: some general points
• Enacting States free to take this or that part -
and dispense with this or that part - to respect
special national exigencies
• Compactness and flexibility: almost total
freedom of contract
• Fair and balanced legal framework suitable for
countries at all levels of economic development
Sphere of application
• What is not covered?
– areas seen as particularly sensitive at the domestic
law level
• fiscal, accounting and supervisory aspects of leasing;
consumer leases
– neighbouring areas of the law covered by other
international instruments
• leases that function as security rights under the
UNCITRAL Legislative Guide; leases of large aircraft
equipment under the Cape Town Aircraft Protocol
Sphere of application (continued)
• What is covered?
– principal types of leasing covered
• financial leases
• leases other than financial leases (bailment)
– types of asset covered
• all property used in the craft, trade or business of the
lessee, including immovables, capital assets, equipment,
future assets, specially manufactured assets, plants and
living and unborn animals
Sphere of application (continued)
• Financial leases distinguished from other leases
– criteria common to both:
• a transaction in which one person provides another with the right to possess and use an asset for a specific term in return for rentals
– additional criteria peculiar to financial leases
• lessee specifies the asset and selects the supplier
• lessor acquires the asset in connection with a lease and the supplier knows this
• rentals take into account or do not take into account the amortisation of the whole or a substantial part of the lessor’s investment
Rights and duties of the parties
• To be distinguished according to whether
– rights and duties are common to both financial lease
and non-financial lease
– rights and duties differing according to whether the
lease is in the nature of a financial lease or a non-
financial lease
– rights special to financial leases
Rights and duties common to
financial leases and non-financial
leases
• Duty of lessor to provide lessee with right to
possession and use of asset for a specific term /
duty of lessee to pay lessor rentals
• Duty of lessee to take proper care of leased asset
and to keep it in the condition in which it was
delivered, subject to fair wear and tear
• Duty of lessee at end or termination of lease to
return asset to lessor in a reasonable condition
Rights and duties differing according
to whether the lease is a financial
lease or a non-financial lease
• Warranty of quiet possession
• Warranty of suitability for purpose
• Rule on the irrevocability and independence of
the duties of the lessor and the lessee
• Risk of loss
Rights special to financial leases
• Lessee is treated as the beneficiary of the
supplier’s duties vis-à-vis the lessor under the
supply agreement
• Lessor, in its capacity of lessor, will not be liable
to the lessee or third parties for death, personal
injury or damage to property caused by the
leased asset or use of that asset
Other issues covered by
the Model Law
• Default
• Damages (including liquidated damages)
• Termination
Follow-up and implementation
• Preparation by the Unidroit Secretariat of an official commentary on the Model Law
• Organisation of seminars in different parts of the world
– first seminar held in Beijing in May 2011
• Model Law has been implemented in Latvia
• Model Law being used by the I.F.C. in its work (Jordan, Tanzania, Yemen, Afghanistan and West Bank)
THANK YOU FOR YOUR
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