The functional method, system-neutrality and the Financial Collateral Arrangements Directive

Ezike, Obiora Godwin (2020) The functional method, system-neutrality and the Financial Collateral Arrangements Directive. PhD thesis, University of Glasgow.

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The thesis considers whether, as proffered by the functional method of comparative law, legal institutions can be defined in a system-neutral way in terms of specific effects. To address this question, the thesis uses EU directives, particularly the Financial Collateral Arrangements Directive, as a reference to test this assumption of the functional method. Thus, the thesis begins by demonstrating how the functional method is behind the legislative process of EU directives generally. It is argued that because directives are binding as to the results to be achieved, there are presumptions that implementing legal institutions in the Member States are functionally equivalent and give rise to the same effects. Thus, because they are equivalent, there is a presumption that, at the level of directives, it is possible to formulate system-neutral norms which are not tied to any national legal system. Against this background, the thesis considers the definitions of a title transfer financial collateral arrangement (TTFCA) and a security financial collateral arrangement (SFCA) in the Collateral Directive. An investigation is carried out to identify if the specific concepts and ideas (e.g. full ownership; ownership of financial collateral; possession and control, ‘by way of security’ etc), as presupposed by the Directive, are indeed system-neutral as suggested by the functional method. In the examination of each of these concepts and ideas, the argument was persistently made in the chapters that although there are functional similarities between legal institutions across the systems, these institutions and concepts can only be seen within a doctrinal context. In this light, in all of the cases considered, it was demonstrated that the concepts or presuppositions contained in the Collateral Directive: a) implicitly endorse some doctrinal principle at the expense of other equally valid principles in contravention of the supposed system-neutrality of the concepts; and b) that most of the functional criteria or effects set out in the Directive are only meaningful when seen within a doctrinal context, rather than from the literal, outsider perspective supposedly adopted by the Directive in line with the functional method. The findings in the thesis generally upholds the criticisms against the functional method that it does not provide tools to understand doctrinal institutions; defines institutions without any objective criteria; and is itself formalistic and doctrinal — in contravention of its own tenets.

Item Type: Thesis (PhD)
Qualification Level: Doctoral
Keywords: Functional method, financial collateral, comparative law, property law, Financial Collateral Arrangements Directive.
Subjects: K Law > K Law (General)
K Law > KD England and Wales
K Law > KD England and Wales > KDC Scotland
Colleges/Schools: College of Social Sciences > School of Law
Supervisor's Name: Rahmatian, Professor Andreas and MacNeil, Professor Iain
Date of Award: 2020
Depositing User: Mr Obiora Ezike
Unique ID: glathesis:2020-78992
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 10 Feb 2020 16:44
Last Modified: 03 Feb 2023 08:19
Thesis DOI: 10.5525/gla.thesis.78992

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