간접보유증권의 준거법결정
How to decide the law applicable to certain rights in respect of securities held with an intermediary
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There are two kinds of principles that classify how to decide the law applicable to certain rights in respect of securities held with an intermediary. One is the approach to use the traditional ways and the other is the approach to admit party's autonomy. EU, Japan and Korea take the former, but Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (hereinafter "Hague Convention") takes the latter. Hague Convention is not ratified broadly now. It's effect depends on how many countries approve and ratify Hague Convention. The EC Commission released the legal assessment of certain aspects of the Hague Securities Convention. The Commission concluded in particular that “adoption of the Convention would be in the best interest of the Community” and recommended that the Convention “be signed after or with at least two of its main trading partners, the USA included. If many countries ratify the Hague Convention and the Convention becomes effective, most of those ratifying countries including EU have to change their domestic laws because the principle under the Hague Convention is different from traditional principles. Korean Private International Law does not have any specific rule for securities held with an intermediary and can be interpreted as taking the traditional principles for them. Therefore, it will be inevitable to reform the relevant provisions of Korean Private International Law for Korea to catch up the international trend with respect to securities held with an intermediary if the Hague Convention's rule is dominant in that field. Also, there might be some demands to adjust domestic law regarding securities transactions when the free trade agreements with other countries will be concluded. So, I recommend we keep an eye on the international trend regarding the law applicable to securities held with an intermediary.
Abstract
There are two kinds of principles that classify how to decide the law applicable to certain rights in respect of securities held with an intermediary. One is the approach to use the traditional ways and the other is the approach to admit party's autonomy. EU, Japan and Korea take the former, but Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (hereinafter "Hague Convention") takes the latter. Hague Convention is not ratified broadly now. It's effect depends on how many countries approve and ratify Hague Convention. The EC Commission released the legal assessment of certain aspects of the Hague Securities Convention. The Commission concluded in particular that “adoption of the Convention would be in the best interest of the Community” and recommended that the Convention “be signed after or with at least two of its main trading partners, the USA included. If many countries ratify the Hague Convention and the Convention becomes effective, most of those ratifying countries including EU have to change their domestic laws because the principle under the Hague Convention is different from traditional principles. Korean Private International Law does not have any specific rule for securities held with an intermediary and can be interpreted as taking the traditional principles for them. Therefore, it will be inevitable to reform the relevant provisions of Korean Private International Law for Korea to catch up the international trend with respect to securities held with an intermediary if the Hague Convention's rule is dominant in that field. Also, there might be some demands to adjust domestic law regarding securities transactions when the free trade agreements with other countries will be concluded. So, I recommend we keep an eye on the international trend regarding the law applicable to securities held with an intermediary.
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