Background of the project
In December 2018, the Secretariat received a proposal for the 2020-2022 Work Programme by the World Bank regarding a project on the “Development of a Working Paper to Outline Best Practices on Debt Enforcement”, which the Secretariat presented in the context of the discussion of the 2020-2022 Work Programme at the 98th Session of the Governing Council. The proposal was discussed as a continuation, and a refinement, of the scope of the “Principles of Effective Enforcement” project, which was already part of the 2017-2019 Work Programme. The project was included in the new Work Programme by the General Assembly (A.G. (78) 12, paras. 41 and 51, and A.G. (78) 3), confirming the recommendation of the Governing Council (C.D. (98) 17, para. 245). While there was consensus on the importance of the topic and on the legal, social and economic impact of the work to be conducted, the Secretariat was asked to produce a more refined scope of the project to be presented at the 99th session of the Governing Council in 2020.
Consultation procedure
During the first meeting of the 99th session of the Governing Council held remotely in April/May 2020, Council Members commented on the revised Secretariat’s document (C.D. (99) A.3) and authorised the setting up of a consultation procedure to receive expert feedback on the questions raised (C.D. (99) A.8).
In response to this mandate, the UNIDROIT Secretariat developed a Consultation document containing, in its Part V, a set of questions based on the comments received during the Council remote session. The document was designed to better define the most appropriate guidance for the future Working Group in determining the type of envisaged instrument and the scope of the project, and formed the basis for a first round of remote consultations with selected international experts and organisations.
All participants in the consultation process recognised the fundamental importance of procedures and mechanisms for effective enforcement of creditors’ claims, both in transnational situations as well as in domestic civil proceedings, taking the need to ensure an effective legal protection of contractual rights into account. They also agreed on the existence of numerous challenges for enforcement in most jurisdictions, and on the lack, at present, of a comprehensive and sufficiently detailed international instrument providing for guidance for national legislators to overcome such challenges. Some experts expressly referred to the need of ensuring not only the right of creditors to effective enforcement but also a sufficient legal protection for debtors, which was also seen as a precondition of well-functioning lending and financial markets. Finally, experts generally supported the basic approach embodied in the Consultation Document presented by the Secretariat while providing very useful input in relation to the specific questions posed.
Internal Exploratory Workshop – 21 September 2020
The Secretariat organised an internal Workshop on 21 September 2020, prior to the second (hybrid) meeting of the Governing Council at its 99th session. The Workshop sought input from experts with different backgrounds, international organisations working in the field and members of the UNIDROIT Governing Council, particularly on the determination of the most appropriate guidance to a future working group on the scope for the project and on the impact of technology on enforcement. The agenda of the Workshop is available here.
Second meeting of the 99th session of the Governing Council (23-25 September 2020)
At the second meeting of its 99th session, the Governing Council discussed the document presented by the Secretariat (C.D.(99) B.3) and approved the guidelines provided by the Secretariat regarding the proposed scope of the project, confirmed the high priority status assigned to the project, and authorised the establishment of a Working Group.
The Best Practices for Effective Enforcement Working Group is composed of:
The Working Group also counts on a number of Institutional Observers:
1st Working Group Meeting
The first meeting of the Working Group was held in Rome and on Zoom on 30-November – 2 December 2020.
Intersessional Work
As established in the 1st meeting of the Working Group, the Secretariat has involved members and observers of the Working Group into informal sub-groups, which have planned meetings and exchanges throughout the intersessional period organised with the support of the Secretariat. The provisional subgroups are as follows:
2nd Working Group Meeting
On 20-22 of April 2021, the Working Group on Best Practices for Effective Enforcement, chaired by Governing Council member Kathryn Sabo, met via Zoom to discuss the results of a very productive intersessional work undertaken by its members and observers since the first session (30 November – 2 December 2020). After a general presentation on the progress of the project, the three subgroups on “post-adjudication” enforcement, enforcement of secured claims (collateral), and on the impact of technology on enforcement, presented their reports, which elicited very fruitful discussions. The report of the second session will be available online in due course, with the third session tentatively planned for 29 November to 1 December 2021.
3rd Working Group Meeting
On 29-30 November and 1 December 2021, the Working Group on Best Practices for Effective Enforcement, chaired by Governing Council member Kathryn Sabo, met at UNIDROIT’s Headquarters in Rome and via Zoom to discuss the outcome of the intersessional work undertaken by its members and observers since the second session.
After a general presentation on the progress of the project, the Working Group addressed issues of enforcement of monetary claims by third party debt orders including tentative best practices regarding to the impact of automation. It then discussed charging orders on land and some aspects of complex enforcement relating to special types of assets. In relation to enforcement of security rights, the Working Group considered draft best practices on security rights over receivables, disposition of collateral and variation by parties of the rules regarding realisation of the collateral.
Study LXXVIB – W.G. 3 – Doc. 1: Agenda
Study LXXVIB – W.G. 3 – Doc. 6: Report
4th Working Group Meeting
On 26-28 April 2022, the Working Group on Best Practices for Effective Enforcement, chaired by Governing Council member Kathryn Sabo, met at UNIDROIT’s Headquarters in Rome and via Zoom to discuss the outcome of the intersessional work undertaken by its members and observers since the third session.
Following a presentation on the progress of the project and a summary of the intersessional meetings and workshops that had taken place, the Working Group addressed draft best practices regarding enforcement by way of authority, enforcement on digital assets, issues regarding online auctions, and an update on draft best practices regarding enforcement of security rights. The Working Group also addressed the organisation of future work and the way forward.
Priscila Pereira de Andrade works as a Legal Officer at UNIDROIT. She is mainly responsible for the Agricultural Development and Private Law projects jointly developed with IFAD and FAO (Legal Structure of Agricultural Enterprise, Agricultural Land Investment Contracts and Contract Farming). Priscila holds a Ph.D. in International Law from the University Paris I Panthéon-Sorbonne (France), a Master Degree in International Relations from the University Center of Brasília (Brazil), and a specialisation degree in International Environmental Law from the United Nations Institute for Training and Research (UNITAR). Before joining UNIDROIT, she worked for the International Institute for Sustainable Development (IISD) and was an assistant professor at the University of Pisa (Italy), as well as an associate professor at the Master in Law Program of the University Center of Brasília.
Philine Wehling has over ten years of experience in food and agriculture law as well as international trade law. Before joining UNIDROIT in 2019 she worked as a Legal Specialist at the Legal Office of the United Nations Food and Agriculture Organization (FAO) in Rome for almost 8 years, providing guidance to Member States on the development of sound legal frameworks and contributing to the standard setting work of the Organization on trade in agro-food products, agricultural finance, sustainable agricultural production and development, and responsible natural resources management. She supported Governments in legal reform in more than 20 countries. Philine Wehling further served as a Legal Advisor at the German Federal Ministry of Justice in Berlin, where she was in charge of international cooperation in consumer law and policy. She completed her doctoral dissertation in international law at the Max-Planck-Institute for Comparative Public Law and International Law in Heidelberg, for which she received a doctoral degree summa cum laude from Heidelberg University as well as the Prize for excellence in research of the Margot-und-Friedrich-Becke Stiftung zu Heidelberg in 2018. Philine Wehling is admitted to the German Bar .
Myrte Thijssen started her career in the Legal Service of the Dutch Central Bank (Supervision and Regulation Department). From 2015-19 she worked in the Legal Service of the Single Resolution Board, providing advice in banking crises and dealing with litigation before the Appeal Panel and the Court of Justice of the European Union. She studied at the University of Amsterdam and New York University. She has taught Corporate Law and Law of Bank Crisis Management at the University of Amsterdam and the University of Bologna respectively. She has published several articles in the field of banking and financial law with a particular focus on bank resolution.
A Swedish national, Ms Lena Peters grew up in Italy where she attended an English school. In 1978 she took her Juris Kandidatexamen at Stockholm University followed by a Master of Laws from King’s College, London (1979). Since 1985 she has been with UNIDROIT, first as Research Officer, lastly as Principal Legal Officer, her main duties being Secretary to the Working Group for the Preparation of Principles of International Commercial Contracts, Secretary to the Study Group on Franchising, Secretary to the Committee of Governmental Experts on Franchising.She also collaborated on the project for the preparation of the ELI-Unidroit Model European Rules of Civil Procedure. She is currently Managing Editor of the Uniform Law Review and responsible for publications at UNIDROIT.
Marina Schneider is Principal Legal Officer and Treaty Depositary at UNIDROIT. She studied law at the University of Strasbourg (France) and Paris I – Panthéon Sorbonne. She joined the UNIDROIT in 1987 and was involved in the elaboration and French versions of most UNIDROIT instruments since. She is in charge of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects and of the UNESCO-UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects. She is the author of the Explanatory Report of the 1995 Convention and many articles on the Convention and other international instruments in the field. Ms Schneider is also responsible for the project on private collections and for the UNIDROIT Convention Academic Project (UCAP). She is member of the Board of the International Society for Research on Art and Cultural Heritage Law (ISCHAL).
Carlo Di Nicola is a Senior Legal Officer at the International Institute for the Unification of Private Law (UNIDROIT) in Rome, Italy. He is currently leading the Digital Assets and Private Law Project. He previously worked for the Legal Offices of the UN World Food Programme (WFP), the Food and Agriculture Organization of the United Nations (FAO), and the Permanent Bureau of the Hague Conference on Private International Law (HCCH). He holds a Master’s degree in International Law (LL.M. with Distinction) from the London School of Economics and Political Science (LSE), and law degrees from the University of Ottawa (J.D. Magna cum laude) and the Université de Montréal (LL.B.). He is qualified to practice law in Canada as a member of the Law Society of Ontario and the Barreau du Québec.
Professor of Commercial Law, Carlos III University of Madrid. Currently, Sir Roy Goode Scholar at UNIDROIT, Rome, 2021-2022. Chair of Excellence 2017-2018 at University of Oxford (Uc3m- Santander Program), affiliated to Harris Manchester College. Previously Distinguished Visiting Professor and fellow of a number of Academic Institutions. Arbitrator of Madrid Court of Arbitration. Member of ELI (European Law Institute) Council and Executive Committee. Member of the Expert Group of the European Commission on Liability and New Technologies and member of the Expert Group of the European Observatory of Platform Economy; the International Academy of Commercial and Consumer Law; the expert group of the Inclusive Global Legal Innovation Platform for Online Dispute Resolution – UNCITRAL and Hong Kong Department of Justice. Expert of the UNIDROIT Study Group on the MAC Protocol of the Cape Town Convention on International Interests. Delegate of Spain to UNIDROIT for the adoption of the Protocol, delegate of Spain in Working Group VI of UNCITRAL on secured transactions and in Working Group IV on Electronic Commerce. Member of UNIDROIT Working Groups on Enforcement and Warehouse Receipts.
William Brydie-Watson is an Australian lawyer who specialises in secured transactions law and private international law. Before joining UNIDROIT, William was a government lawyer in the Private International Law and International Arbitration section of the Australian Attorney-General’s Department, where he worked primarily on treaty negotiation and the implementation of private international law treaties in Australia. At UNIDROIT, he is primarily responsible for the implementation of the Mining, Agriculture and Construction (MAC Protocol) to the 2001 Cape Town Convention on International Interests in Mobile Equipment and the development of a Model Law on Factoring. William also serves as UNIDROIT’s liaison with the Asia Pacific Economic Cooperation (APEC) forum and as manager of the Institute’s Scholarship and Internship Programme. Admitted to practice in New South Wales and the High Court of Australia, he has a Bachelor of Arts (honours), a Bachelor of Laws and a Master of Laws from the Australian National University. William also lectures on International Secured Transactions Law at the Eotvos Lorand Faculty of Law in Budapest.
rofessor Ignacio Tirado was appointed Secretary-General by the Governing Council at its 97th session, and officially took office on 27 August 2018. A national of Spain, Professor Tirado (Commercial, Corporate and Insolvency Law, Universidad Autónoma of Madrid, Spain) holds a PhD from the Universities of Bologna and Autónoma de Madrid and an LLM from the University of London. Professor Tirado has been a Senior Legal Consultant at the World Bank’s Legal Vice-Presidency and Financial Sector Practice for more than nine years, having also consulted for the IMF on insolvency related matters as well as for the Asian Development Bank on commercial legal reform.