Banking & Finance Update: New Movable Security Law

Following recent announcements at the Federal National Council, the new Movable Security Law has now been issued replacing the previous law of 2016.

The New Law

Federal Law No. (4) of 2020, concerning Securing Rights in Movable Assets (“New Law”) has been issued and published in the UAE Official Gazette on 31 May 2020, and came into effect on 1 June 2020.

Replacement of existing law

The New Law replaces Law No. 20 of 2016 on the Mortgage of Moveable Property to Secure Debt (the “Old Law”).

It is, however, confirmed under the New Law that the executive regulations, decisions and circulars issued in relation to the Old Law remain effective until such time as they are replaced through the issuance of a new set of regulations under the New Law.

This is important as such regulations document the establishment and operation of the Emirates Movable Collateral Register (“EMCR”). Although the New Law refers to a register “to be established”, by confirming the continuance of the executive regulations, decisions and circulars, the EMCR would continue to be the relevant register under the New Law until replaced by any subsequent regulations. However, the interface of the EMCR may need to be updated to reflect the change in the type of interests that can now be registered on the EMCR under the New Law.

Conceptual Change

There has been a conceptual shift, starting with the name of the law itself.

The title of the New Law refers to security interests over movable assets, as opposed to a narrower scope under the Old Law referring to mortgages/pledges.

This is then reflected in the definition of “Security Interest” being:

“a right in rem over a movable asset created pursuant to a security agreement for the purpose of securing a liability, even if the parties have not expressly described the purpose of the agreement as a “security interest” and regardless of the type of the asset, the status of the security provider or the secured party or the nature of the secured debt. The Security Interest includes pledge under a pledge contract, lessor’s rights under a finance lease contract, seller’s rights under the sale contract of a movable asset, the transfer of title of a movable asset by way of security and the rights of the assignee under an assignment.”

Scope of New Law

Similar to the Old Law, the New Law covers tangible and intangible movable assets whether current or future. In this respect, the list of movable assets remains largely unchanged (i.e. accounts receivable, bank accounts, documents of title, commercial papers, equipment, crops and so on).

In terms of receivables, the language in the New Law corrects previous uncertainty under the Old Law by introducing the definition of ‘debt receivables’ (i.e. receivables due to the security provider), as opposed to the definition of ‘credit receivables’ under the Old Law. The New Law captures the registration of security interests over receivables which are due to a security provider other than coupon payments and related payments under negotiable bonds, payments in relation to securities (such as dividends of shares), and payments (including interest or profit payments) from deposits with banks. Debt receivables which are part of a ‘sale of a project’ are also excluded from the ambit of the New Law, however, no further guidance is given on the meaning of the term ‘project’.

The New Law also continues the same theme when it comes to special registers, so that assets subject to such registers are excluded (e.g. vehicles, vessels, aircraft as well as free zone security registers).

There are other changes in the scope:

  • The New Law sees the addition of an assignee’s sale of receivables which is deemed to be a security interest under the New Law.
  • The Old Law had previously excluded (i) insurance from its scope (except for insurance over the pledged asset) as well as (ii) assets assigned for personal or household use (except for such assets securing a financing for the purchase of the same asset).
  • The New Law does not include those two exclusions and therefore, it is understood that insurance and personal or household assets can now be granted as security in accordance with the provisions of the New Law.
  • The Old Law provided for a mechanism to register rights in operational leases. The New Law does not refer to operational leases.
  • The New Law confirmed that finance lease contracts can be registered as a security interest in the register (relevant to UAE Federal Law No. 8 of 2018 on Financial Leasing).
  • The New Law appears to have resolved the long standing legal issues around the invalidity of sale and buyback arrangements which are considered void under the Civil Transactions Law. As a result, transactions such as repurchase and other sale and buyback arrangements can now be registered as a security interest under the New Law.

Creation of a security interest

Creation of security remains largely unchanged, with a security contract necessary which describes the collateral and secured obligations. Importantly, the New Law provides that such secured obligations can be of any kind, current or future, and that the security interest automatically extends to sale proceeds and any replacement collateral.

Perfection

The New Law provides the criteria of what it means for the security interest to be ‘enforceable vis a vis third parties’ (i.e. akin to the concept of perfection). In this respect three options are possible:

1. registration of the security interest in the register;

2. possession of the movable asset by the secured party; or

3. control of the movable asset by the secured party.

The options in limbs (2) and (3) may be relevant to collateral such as bank accounts, or collateral arrangements where independent warehouse/collateral managers are appointed (including bonded warehouses).

The New Law also confirms that registration on the register can occur prior to creation of the security interest, provided the security provider’s consent is obtained.

In relation to receivables, the New Law provides that a security interest created over the receivables shall not be impacted by any restriction in the contract which created those receivables. This is an important development as it means a registered security interest will trump any restriction in the contract, including retentions of title and restriction on sale.

The importance of a security interest becoming enforceable vis a vis third parties (i.e. being perfected) is that:

  • it grants priority to the secured party over other creditors (based on the date the security interest was ‘enforced’ – i.e. perfected); and
  • it grants priority to the secured party over the security provider’s unsecured and privileged debts including any employees’ distributions, any taxes and other Government debts.

Priority

A perfected security interest will enable the secured party to ‘follow’ the collateral to any person to which it has been assigned, effectively a tracing right. However, a third party may obtain clear title to the collateral if the collateral is sold in the ordinary course of business of the security provider.

Interestingly, a new concept has been introduced dealing with asset financing, a concept which exists in other jurisdictions. Under this concept a security interest created for financing the purchase of equipment, stock, intellectual property rights shall have priority over any other security, including other general security registered prior. There are, however, priority rules in relation to the proceeds where such assets are stock and are subject to a prior security interest.

In relation to security interests created over an asset that subsequently becomes a fixture to a mortgaged property, such security interest shall have priority over the rights of the mortgagee of the property itself.

Another interesting inclusion in the New Law is in relation to account banks and the accounts they hold, with the law providing that such banks have priority over any security interests to set off the funds in such accounts against any debts owed to them. Practically, this is likely to mean that security over bank accounts held with other banks will hold little value without the relevant account bank waiving such set off right.

Although the Old Law referred to security over fungible assets (such as oil), there were no prescribed terms including in relation to comingling. The New Law rectifies this providing that security can be taken over fungible assets and it will continue after mixing with other identical assets. In addition, if there are multiple security interests over comingled assets, each secured party will rank equally, having a pro rata share in the comingled assets.

Enforcement

The concept of self-help continues under the New Law, as does the ability to enforce through summary proceedings. In particular:

1. The New Law confirmed the rights of banks and financial institutions to set off against bank accounts as a method of recovery under a security interest over bank accounts.

2. Similar to the Old Law, enforcement methods include:

  • Transfer Ownership: The parties to the security agreement may agree to transfer the asset to the secured party (subject to the right to object by other security holders).
  • Self Help: This allows the secured party to repossess the secured asset if there is an event of default. The secured party must notify all concerned parties (security provider, borrower, the bank, the holders of other security interests in relation to the same asset, etc.).

The New Law sets out specific self-help enforcement methods for some types of security as follows:

  • Type of Security
  • Enforcement
  • Bank accounts and receivables
  • By way of set-off
  • Bonds and written instruments (negotiable instruments and commercial papers)
  • Endorsement or delivery
  • Application to the Summary Court: By application to the summary judge for the issuance of a summary order.

The New Law also appears to restrict cross-acceleration or exercising cross–defaults by a secured creditor it such creditor’s debt (secured thereunder) has not matured or is subject to a default.

Bankruptcy of a Security Provider

The New Law confirmed that bankruptcy proceedings do not affect the security and priority rights created pursuant to the New Law. This position is contrary to the provisions of the Old Law do not apply in case of the commencement of bankruptcy of a pledgor of a movable asset under the Old Law.

Penalties

The New Law has increased the penalties for offenders to prison or a fine of not more than AED 60,000, or both. Previously, the fine was AED 30,000 under the Old Law.

Compliance period

The New Law is now in effect.

The New Law does contemplate new executive regulations, however, as mentioned above, the existing regulations continue to apply in the interim.

Like the Old Law, a transitional period is provided, requiring all secured parties to register their security interests within six months from the executive regulation coming into force. Practically, on the basis that the existing regulations continue to apply which encompass the EMCR, it would appear that secured parties should continue to register security interests on the EMCR until directed otherwise by new regulations.

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