Several international organizations - The Hague Conference on Private International Law, the International Institute for the Unification of Private Law (UNIDROIT), and the United Nations Commission on International Trade Law (UNCITRAL) - have been active in preparing instruments that can affect secured transactions and similar financing transactions. Some of these instruments are conventions that have gone into effect with the United States as a "contracting state." Others are conventions not yet in effect because the required number of ratifications has not been achieved. Still others are model laws or "legislative guides" that may influence the development of the law, particularly outside the United States. When these instruments have the force of law, they should be considered by persons engaging in transactions that may be governed by them.


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As lenders and their counsel know, Revised Article 9, §9-307(c), which became effective in July 2001, requires filing in Washington, D.C. for debtors that are not "registered organizations," such as foreign entities, where the chief executive office is located in a jurisdiction that does not have a UCC-type filing/notice system that would give priority over the rights of a lien creditor with respect to the collateral. Less well known, however, is that the D.C. Recorder of Deeds' office has not updated its filing system and procedures to adequately handle on a daily basis the resulting increase in volume of filings. This presents significant challenges that secured lending practitioners need to be aware of and address when filing or searching UCCs in Washington, D.C.


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Last year, in an article published in this journal, we gave an overview of the history of the leveraged loan market. We traced not only the growth of the asset class over the past 15 years but the growth of the Loan Syndications and Trading Association (the "LSTA"), the not-for-profit organization for the corporate loan market whose mission is to promote a fair, orderly and efficient corporate loan market. Among our conclusions, we commented that, as 2007 drew to a close, both the primary market and secondary trading market were in a period of flux as borrowers and lenders evaluated the future and noted that the market and the LSTA were entering a more challenging period with loan prices more closely correlated to, and no longer shielded from, the daily price fluctuations of other asset classes.


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The Bankruptcy Code specially protects "commodity contracts", "forward contracts", "securities contracts", "repurchase agreements" and "swap agreements", as well as related "master netting agreements", as each of those terms is defined in the Code, between the debtor and specified categories of counterparties. Such contracts and agreements are variously referred to as "financial contracts", derivative contracts" or simply "safe harbor contracts." The automatic stay does not apply to the exercise by protected counterparties "of any contractual right...to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more such agreements."


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Despite several years of little activity in the area of lender liability, the unprecedented slowdown in the global economy and continuing unrest in the credit markets may prove to be fertile ground for disputes between lenders and borrowers, guarantors or other third parties. When lending institutions pursued enforcement remedies in response to widespread defaults in the 1980s and 1990s, they were met by a massive upsurge in claims filed against them. Today, the number of lenders taking enforcement actions is once again on the rise, which may result in a corresponding increase in borrowers challenging and courts probing lender practices.


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Please find below a list of electronic links that our members may find useful:

1. The UCCLAW-L listserv, which is sponsored by West Group, publisher of the "UCC Reporting Service." To subscribe to the UCCLAW-L listserv, go to http://lists.washlaw.edu/mailman
   /listinfo/ucclaw-l.
2. U. Penn's archive of NCCUSL final acts and drafts can be accessed at http://www.law.upenn.edu/bll/archives/ulc/ulc.htm.
3. Pace University's database of CISG United Nations Convention on Contracts for the International Sale of Goods decisions can be accessed at http://cisgw3.law.pace.edu.
4. Gonzaga University's new Commercial Law Center has a variety of links to useful sites and can be accessed at http://www.law.gonzaga.edu/About-Gonzaga-Law/Commercial-Law-Center/default.asp.
   
5. The International Association of Commercial Administrators (IACA) maintains links to state model administrative rules (MARS) and contact information for state level UCC administrators. That information can be accessed at http://www.iaca.org.
   
6. The Uniform Law Commissioners maintains information regarding legislative reports and information regarding upcoming meetings, including Joint Review Committee for Uniform Commercial Code Article 9. You can access this information at http://www.nccusl.org/Update/.
   

In addition, the Commercial Finance Committee's Task Force on Surveys of State Commercial Laws website links to surveys of the law of all 50 states (except Connecticut, DC and Puerto Rico).

With your help, our list of electronic resources will continue to grow. Please feel free to forward other electronic resources you would like to see included in future editions of the Commercial Law Newsletter, by sending them to either Christine Gould Hamm, the Commercial Finance Editor, or Carol Nulty Doody, the Uniform Commercial Code Editor.

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