While enacted in 2006, Nepal’s Secured Transaction Act has never been fully implemented. That is about to change this November when the Secured Transaction Registry Office finally comes online (literally: for the first time in Nepal, the people will have free online access to personal property loan records).
This new legal regime presents a lot of new opportunities for those who are ready for it and a lot of new challenges for those who are not. Over the past two weekends, I have been assisting Mr. Gandhi Pandit, the Founding Partner of Gandhi & Associates, and Mr. Raju Man Singh Malla, a former Secretary in the Government of Nepal, in facilitating training seminars on this new law for senior and high level officials working in the credit departments of Nepal’s banking institutions at the National Banking Institute in Kathmandu. Both attorneys were involved with drafting the law and Attorney Malla continues to be instrumental in drafting its regulations.
I will be co-authoring with Attorney Pandit a more detailed analysis of this exciting development in Nepali law and what it means in an upcoming article we are expecting to publish in a local business magazine. In the meantime, below are a few quick points to peak your interest.
The Secured Transactions Act of 2063 is based on U.S. law.
Article 9 of the Uniform Commercial Code (“UCC”), on which the Nepali law is based, was developed during the 1940s in the United States and began to be enacted state-by-state in the 1950s. A uniform system of laws would prove to be crucial to the modernization of interstate commerce in an increasingly connected country, but its initial adoption and eventual success was far from assured at the time.
The U.S. legal system is itself based on the English common law system, where law is made by judges sitting in courts applying legal precedents to the facts before them. This is quite different than a civil law system based on codes like the UCC. What is more is that this law was made in the 1940s, in the midst of World War II, and Germany was a civil law country.
While Pennsylvania and Massachusetts were the first states to adopt Article 9 of the UCC, it was not until New York, the most important jurisdiction for banking, adopted Article 9 that the years of efforts by such legal luminaries as Karl Llewellyn and Grant Gilmore began to bear real fruit. And it took much longer than they had ever imagined.
While there are many protections for creditors inherent in the law, early drafts of the model law also had a lot of protections written in for consumers as well which gave Wall Street some pause. Without support from its banking constituency, the proposed law hit a brick wall in the New York legislature. A long, careful study of the law was undertaken and many compromises were made, but it passed.
Nepal will also face some unique challenges as it implements its own new secured transactions law. But these challenges are necessary for Nepal to take what is a borrowed legal concept and make it its own. Because that is what this is all about.
Secured transactions are for everyone, not just bankers.
Did you read this far without understanding what a “secured transaction” is? With apologies to my friends in the law who recently (or not so recently) survived their bar exams, simply put a secured transaction is a loan backed by collateral.
If you make a loan to someone and want to be sure that they will pay you back, you can ask for more than just their good word. You can agree that something of theirs will be sold to make you whole again if they do not pay you back on their own. Secured transaction law enforces this agreement for you.
And if you get there first, then you can get paid before any one else does. That is the point of the registry system: to let everyone else know that you’ve got dibs (priority).
Small businesses will have access to credit like never before.
Even the drafters of the UCC had no idea the extent of the goldmine they were sitting on. For what was at the time a relatively obscure lending practice, took off in a big way: inventory lending. Growing businesses need working capital if they want to continue to grow and they can get it when they can use their inventory as collateral, both to take out loans from lending institutions, but also to buy new inventory on credit from their suppliers. Coupled with the concept of the “floating lien” (when collateral includes not only what inventory they currently have in stock but future inventory as well), inventory lending went from a mere radar blip to now accounting for as more or more in total loan value than the traditional banks do in the U.S. This could become a game-changer in Nepal as well.
Nepal has at least one distinct advantage over the U.S. in this new law.
Nepal will benefit from having a national registry system. The UCC has been enacted in all 50 United States. That means that the U.S. has at least 50 different personal property securities registries (this number is actually much higher when we take into account “fixtures”). As U.S. citizens and residents are free to shift from state to state, this creates real headaches for lenders.
Nepal will face its own political challenges in regard to its newfound federalism, but thankfully the Secured Transactions Registry will not be one of them.
