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Chapter 1 - The need for a specific solution

Published online by Cambridge University Press:  16 September 2025

Augustin Gridel
Affiliation:
University of Lorraine, France
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Summary

Conflicts of laws relating to the ownership of securities most often arise in connection with their transfer.The transfer of securities, like the contractual assignment of claims is, from the point of view of conflict of laws, at the intersection of three distinct laws: the law of the object transfered, the law applicable to the transfer and, finally, the law applicable to the third party ‘effect’ (‘enforceability’) of the transfer. As regards the law of the object transferred, it should simply be recalled that, from the point of view of transfer transactions, the decisive aspect of the regime of securities is their negotiability. Negotiability is dependent on the form assigned to the securities, decided by the law of the issuer or the contract of issue.As regards the contract of transfer, which determines the contractual relations between the transferor and the transferee, this is subject to its own law; the lex contractus will depend on the means by which the contract is concluded. In the context of the financial market, three cases must be distinguished. First, the transfer contract may result from the issuance of an order on the trading platform, in which case the applicable law will be that of the trading platform between the membersand the contract between the member and its client.Secondly, in the case of a public offer of securities, the applicable law will be that designated by the offer.Thirdly and lastly, in the case of an over-the-counter transfer of securities admitted to trading, the applicable law will be that determined by the transfer contract or, in the absence of choice of law, by the domicile of the seller.

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Publisher: Intersentia
Print publication year: 2025

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