DICKINSON LAW REVIEW Published Since 1897
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DICKINSON LAW REVIEW Published Since 1897 Vol. 106, No. 1 Summer, 2001 CONTENTS Editor's Note to Librarians and Subscribers Dedication 10TH BIENNIAL CONFERENCE OF THE INTERNATIONAL ACADEMY OF COMMERCIAL AND CONSUMER LAW Introduction ................................... Louis F. Del Duca 1 International Investment Development Designing a Regulatory Framework for Collective Investment Schemes in Emerging African Markets: The Ugandan Experience ..................... S. K. Date-Bah 3 International Banking Developments Fraud in Documentary Credit, Letter of Credit and Demand Guaranty ......................... Jean Stoufflet 21 Legal Aspects of the Banking Bailout in Mexico ................. Arcelia Quintana-Adriano 29 Competition Law and Enterprise Organization Disloyal Competition in the Honduran Commercial Code and in the Proposed Law for the Promotion and Protection of Competition .............. Dr. Laureano F. Guti~rrez Falla 69 Creating International Legislation for the Twenty-First Century Do We Need a Global Commercial Code? ...... Michael Joachim Bonell 87 Unified Private Law for the European Internal Market .......................... Dr. Ulrich Drobnig 101 HeinOnline -- 106 Dick. L. Rev. [iii] 2001-2002 Electronic Commerce Consumer Protection in the Global Village: Recent Developments in German and European Union Law ......................... Norbert Reich 111 and Axel Halfmeier The Chilean Draft of Electronic Documents in Relation With the UNCITRAL Model Law of Electronic Commerce .... Dr. Ricardo Sandoval L6pez 139 Transnational Secured Financing Law Personal Property Security in Australia- A Long, Long Trail A-Winding ............... David E. Allan 145 Receivables Financing and the Conflict of Laws: The UNCITRAL Draft Convention on the Assignment of Receivables in International Trade .......................... Catherine Walsh 159 Convention on the International Sale of Goods Selected Topics Under the Convention on International Sale of Goods (CISG) ....... Louis F. Del Duca 205 and Patrick Del Duca Consumer Law Developments Consumer Protection in the Mexican Financial System ...................... Miguel Acosta-Romero 255 Developments in Consumer Law in Puerto Rico, Case Brief: Costa v. Caguas Expressway Motors, Inc......... Pedro F. Silva-Ruiz 263 HeinOnline -- 106 Dick. L. Rev. [iv] 2001-2002 Dedication The Penn State Dickinson Law Review in cooperation with the Penn State Dickinson School of Law Center for International and Comparative Law is privileged to dedicate this issue of the Law Review to John Honnold, Professor Emeritus of the University of Pennsylvania Law School; Kazuaki Sono, Dean of the Faculty of Law and Policy, Tezukayama University of Japan; Gerrold Herrmann, former Secretary of the United Nations Commission on International Trade Law and Chief of the International Trade Law Branch, Office of Legal Affairs, United Nations, Vienna; Michael Joachim Bonell, Professor of the University of Rome Law School and Consultant to the International Institute for Unification of Private Law headquartered in Rome, Italy; and Walter Rodino, Deputy Secretary General of the Institute. HeinOnline -- 106 Dick. L. Rev. [v] 2001-2002 10th Biennial Conference of the International Academy of Commercial and Consumer Law Introduction Louis F. Del Duca* The events of September 11 impose a new sense of urgency on the need to rationalize political, economic, and social interchange in a globalized world of increasing hostilities. Founded in the early 1980s, the International Academy of Commercial and Consumer Law continues to contribute to development of a more rational world order by "identifying the international nature of commerce, the common problems faced across jurisdictions and the benefits in solving commercial and consumer problems by attention to approaches elsewhere."1 Legal experts from Africa, Asia, Australia, Europe, and North and South America participated in the 10th Biennial Conference of the International Academy of Commercial and Consumer Law held August 9 through 13, 2000 at the Penn State Dickinson School of Law. Participants addressed a wide range of topics relating to the changing legal structure of an increasingly global economy as illustrated by the table of contents which precedes this preface. The Conference's discussions and revised papers presented in this volume facilitate exchange of ideas amongst distinguished scholars on cutting edge issues in their areas of expertise. The * A. Robert Noll Professor of Law, Associate Dean for International and Comparative Law Programs, Director, Center for International and Comparative Law, The Dickinson School of Law of the Pennsylvania State University; President-elect International Academy of Commercial and Consumer Law. 1. COMMERCIAL AND CONSUMER LAW; NATIONAL AND INTERNATIONAL DIMENSIONS, Preface (Ross Cranston & Roy Goode eds., Clarendon Press Oxford, 1993). (We borrow this language from the eloquent preface by Oxford Professors Ross Cranston and Roy Goode to the proceedings of the fifth meeting of the Academy of Commercial and Consumer Law held in Oxford in August 1990). HeinOnline -- 106 Dick. L. Rev. 1 2001-2002 DICKINSON LAW REVIEW [Vol. 106:1 discussions are designed to develop suggestions by legal practitioners and legal educators for improving the law, legal education, and the world community. An important symbolic event was also part of the 10th Biennial Conference. The Academy quite properly bestowed recognition awards for outstanding work in negotiation, preparation, and implementation of the United Nations Convention on Contracts for the International Sale of Goods to John Honnold, Professor Emeritus of the University of Pennsylvania Law School; Kazuaki Sono, Dean of the Faculty of Law and Policy, Tezukayama University in Japan, and Gerrold Herrmann, then Secretary of the United Nations Commission on International Trade Law and Chief of the International Trade Law Branch, Office of Legal Affairs, United Nations, Vienna. Professor Honnold and Dean Sono preceded Gerrold Herrmann in this capacity. Recognition awards were also bestowed for outstanding work in negotiation, preparation, and implementation of the Principles of InternationalCommercial Contracts to Professor Michael Joachim Bonell of the University of Rome Law School and Consultant to the International Institute for Unification of Private Law headquartered in Rome, Italy and Walter Rodino, Deputy Secretary General of the Institute. The Penn State Dickinson Law Review in cooperation with the Penn State Dickinson School of Law Center for International and Comparative Law is privileged to dedicate this issue of the Law Review to those five distinguished members of the International Academy for their outstanding contributions to development of a rational world order. HeinOnline -- 106 Dick. L. Rev. 2 2001-2002 Designing a Regulatory Framework for Collective Investment Schemes in Emerging African Markets: The Ugandan Experience S. K. Date-Bah* I. The Need for Collective Investment Schemes in Emerging African Markets In the developed countries, there has in recent years been a great expansion of the investment capital mobilized by mutual funds and unit trusts. In many developing countries, particularly in Africa, the opportunities presented by the mechanism of collective investment schemes have not been seized upon adequately, if at all. There is a need to remedy this shortcoming. Collective investment schemes generally have the following shared characteristics: 1. They involve a pooling of investors' contributions and, of course, any profits or losses; 2. Such pooled contributions are then invested in marketable assets, such as securities, futures, cash and property, rather than directly in the production process or the service sector; 3. Such schemes afford their participants, usually smaller investors, an opportunity to spread risk because they buy parts of a larger pool, which diversifies their investment. Unit trusts, mutual funds and open-ended investment companies ("OEICs") share these characteristics. Because of these shared characteristics, they are useful investment vehicles to promote in developing countries wishing to mobilize the savings of small savers through products other than the traditional mechanism of deposits * LL.B (Ghana); LL.M (Yale); Ph.D (London). Fellow of the Ghana Academy of Arts and Sciences. Special Adviser (Legal), Economic and Legal Advisory Services Division, Commonwealth Secretariat, London. HeinOnline -- 106 Dick. L. Rev. 3 2001-2002 DICKINSON LAW REVIEW [Vol. 106:1 with commercial banks or building societies. Though unit trusts and OEICs are functionally equivalent, they differ in legal form. Unit trusts take the legal form of a trust while OEICs have a corporate form. II. The Need to Regulate Collective Investment Schemes Because collective investment schemes mobilize the savings of many people, many of them small savers, and because of the management of these pooled savings by others, it is prudent to put in place a framework of regulation to ensure that the managers of the pooled resources do not abuse their position. Although there is a need to encourage entrepreneurs in promoting collective investment schemes in African jurisdictions, such encouragement has to be carried out within a framework of regulation to ensure investment protection. It is in this context that the Government of Uganda has been engaged in formulating legislation governing collective investment schemes. An examination of the Ugandan experience may provide some lessons on designing