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Perspectives from the United States and Canada Towards Reforming the Legal Framework for Secured Transactions in Nigeria – Perspectives from the United States and Canada Doctoral Candidate: Iheme, Chima Williams Supervisor and Mentor: Professor Tibor TAJTI Doctoral Thesis Submitted to Central European University Legal Studies Department, International Business Law Stream In partial fulfillment of the requirements for the terminal degree of Doctor of Juridical Science in International Business Law CEU eTD Collection April 2016. Abstract This thesis rests on the presumption that ease of access to credit is the cornerstone of every country’s economic development, as no country may have any meaningful economic development if those willing to startup businesses or expand them, cannot obtain sufficient credit to do so. The sufficient availability of credit to business entities especially the small and medium scale entrepreneurs (SMEs) is interconnected with the nature of a country’s legal framework on secured transactions. A modern secured transactions law entails the use of personal property to secure credit, while an unreformed one – like Nigeria’s, amongst other shortcomings like lack of public notification system, focuses mainly on the use of real property as collateral. This is however a big problem and quite unsuitable for economic development because most SMEs and other forms of business organizations in Nigeria may not always have sufficient real property collateral to secure credit – and as a result, do not always meet up with credit requirements from banks and other lending institutions. A secured transactions law which allows for the use of personal property as collateral, provides comprehensive rules of creation, perfection, priority, as well as judicial and self-help enforcement channels, creates confidence in lending by ultimately ensuring predictability, which no doubt makes credits sufficiently available for entrepreneurs. Nigerian secured transactions law lacks the main features of a modern one because it provides no detailed rules (from creation to enforcement) on the non-possessory use of personal property to secure credit. It is not yet fully recognized in Nigeria how much detrimental it is that CEU eTD Collection its secured transactions law is compartmentalized – what inherently makes the system unpredictable and not trustworthy to financiers. The summary effect of all this is that there is no sufficient flow of credit in the economy and this leads to economic underdevelopment. This thesis i therefore seeks to come forward with solutions that might significantly address some of Nigeria’s economic problems, especially those that emanate from insufficient availability of credit. In looking for solutions, the thesis takes a critical look at the UCC Article 9, and is of the firm view that its unitary structure could offer a good example for Nigeria to follow in the reform of its secured transactions law. However, rather than rely exclusively on the US law, the thesis also takes a critical look at the Ontario Personal Property Security Act because in many respects, Canadian (Ontario) laws and the linked economic structures used to be closer to Nigeria’s than those of the US. It is therefore the position of this thesis, that through a comparative analysis that points out the commonalities and discrepancies between the two systems, the thesis will analyze those elements of UCC Article 9 and Ontario PPSA that could conveniently be adapted to suit Nigeria’s local conditions. The idea is not to suggest the unaltered transplantation of the more suitable version of any one institution or rule, but rather to see why there was a need to, and how the Canadians managed to adjust the US transplants to local conditions – this comparative analysis would hopefully offer valuable tools to the Nigerian lawmakers towards the reform of Nigeria’s secured transactions law. CEU eTD Collection ii Dedication To all those who have learned how to think freely for themselves as well as resist easy conclusions CEU eTD Collection iii Acknowledgments Prof. Tibor Tajti in many ways inspired me to take up the study of comparative secured transactions law, and he was very unstinting in his support and concern throughout my studies at CEU. His terrific vision of international business law, his outstanding integrity, wit, erudition, wisdom, and teaching skills, have set the high benchmark to which I will always look up to. His brilliance, unflinching support, encouragement and provocative comments were vitally important to the writing of this thesis. My knowledge of secured transactions law sedimented gradually as I deeply encountered the literature and scholars in this intricate area of law. And as I matured in the subject, I became better appreciative of the constructive comments Prof. Tajti gave to the earlier drafts of this work – and I thank him exceptionally for his guidance and patience. Indeed, my future students will benefit from his legacies. I also thank the law Professors and administrative staff at the CEU Legal Studies department, especially Prof. Caterina Sganga who also helped me a lot in career advice, and was always ready to entertain my questions and academic requests even on short notices. Lea Tilless, Tünde Szabó, and Nora Varro, were very helpful administratively – without their efforts, it would have been very difficult to undertake this work. In a very special way, I thank George Soros, and the CEU Budapest Foundation for providing me with funding which enabled me to undertake this program. I thank the CEU library staff – they are very wonderful in service delivery – this library where I literally dwelt for three years provided me with the materials and conduciveness I needed for this research. I also thank the law Professors at Cornell University Law School – New York, where I researched for a semester – especial thanks to Professor Lienau Odette who supervised me while I was there. I also thank Professor Charles Whitehead, and Professor John Barceló for their academic supports while I was researching at Cornell Law School. Many thanks also to Prof. Spiros Bazinas, the senior Legal Officer of UNCITRAL, Vienna – where I partly conducted research related to this thesis – while I was there, I had discussions related to my thesis, and also got constructive feedback from him. Three years of intensive research was mentally and emotionally demanding and without the moral supports of family and friends, this research would have been extremely and unbearably difficult. My parents – Mr. & Mrs. Samuel & Bridget Iheme were always checking on me to ensure that all was well. So also were my siblings – Linda, Theresa, Luke, Catherine, who also were very understanding despite all the missed calls from them especially during my long hours in the library. To my Uncles and Aunts, I thank you all for being kind and supportive. CEU eTD Collection Dr. Tochi Nwogu and Victoria Nwogu have been my good friends. I found their advice and encouragements very supportive throughout my research, and I thank them immensely. Franklin Maduko was my flat-mate and was running a doctoral program in Economics (CEU) – we regularly debated ideas across subjects, and enriched ourselves as a result. Evangel Anih was always there for discussion which helped us to vent off a lot of academic stress. Sanford Mba was iv very supportive – we discussed many legal topics together and at the end of each discussion, much clarity was achieved. My thanks also go to Carmen Tanasie who has been a good friend. Wilmah Isaboke has been a wonderful colleague – we read each other’s drafts, and this provided us with rough assessments of how ‘non-experts’ would likely understand our theses. Jennifer Obinna – my fiancée, was always there and her brilliant mind was always ready to intelligently process legal and non-legal topics I flung her way – she is an indispensable ally – and could literally give account of each breath I drew while abroad. Analogously, she is to me what a bona fide purchaser for value without notice is to the law. Above all, I thank my BOT friends – a group of intellectuals of which I’m the least qualified. Iheme, Chima Williams. April 2016. CEU eTD Collection v List of Abbreviations ACA American Consumers Association ADR Alternative to Dispute Resolution Afr.LR(Comm) African Commercial Law Report ALI The American Law Institute All NLR All Nigerian Law Report Article 9 Revised 1999 Article 9 of the United States Uniform Commercial Code BC Bankruptcy Code (United States) BGB The German Civil Code BIA Bankruptcy and Insolvency Act (Canada) BOFIA Banks and Other Financial Instititions Act CA Court of Appeal CAC Corporate Affairs Commission CAMA Companies and Allied Matters Act CAP Chapter CEAL Center for the Economic Analysis of Law Cir. Circuit CISG The United Nations Convention on Contracts for the International Sale of Goods (the 1980 Vienna Convention) CJN Chief Justice of Nigeria CSCS Central Securities and Clearing System DIP Debtor-in-Possession EBRD European Bank for Reconstruction and Development ECOWAS Economic Community of West African States ERNLR Eastern Region of Nigerian Law Report HC High Court HCJ High Court of Justice JCA Justice of Court of Appeal JSC Justice of the Supreme Court LFN Laws of Federation of Nigeria NAFTA North American Free Trade Agreement NCCSL National Conference of Commissioners for the Uniform State Laws NLR Nigerian Law Report NSCC Nigerian Supreme Court Cases NWLR Nigerian Weekly Law Report OHADA Organization for the Harmonization of Business Laws in Africa OPPSA Ontario
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