This chapter offers a perspective on the commercial law response in the United States over the last half-century to the transformation in how securities are held. Except for some aspects of the American federal system, the commercial law rules governing transactions involving investment securities—whether outright conveyances or security interests—are part of a statutory scheme called the Uniform Commercial Code (UCC). Technically, the UCC is a model law that is offered to the states for adoption, and only when adopted by a state does it have the force of law. Two articles of the UCC are relevant for securities: Article 8, entitled “Investment Securities,” and Article 9, entitled “Secured Transactions.”1 All 50 states and the District of Columbia have adopted versions of these two articles that are uniform in all respects relevant to this chapter. It is important to note, however, that these articles operate within a context of general contract law as well as a context in which many—but not all—of the relevant players are subject to regulatory oversight.
At one time, these two articles dealt with investment securities only in physical form. With a very narrow exception for clearing corporation activities (which for the most part was located in New York), there was no real commercial statutory law recognition of the multi-layered holding patterns that have become so prevalent today. Indeed, when the U.S. Treasury decided to take action in the face of the “paper crunch” in the 1960s—in which securities transactions in large numbers failed to settle due to the inability to deliver the paper certificates in a timely fashion as trading volume grew—it took two contradictory steps. First, it created completely dematerialized securities—simply entries on the records of Federal Reserve Banks (which served a quasi-transfer agent role). These securities could then be moved solely by electronic entry. (Many other countries have also done this, of course.) And second, for commercial law purposes—since this is not really a subject of federal law—the enacting regulations “deemed” these securities to be maintained in “bearer definitive form at the Federal Reserve Bank.” Technology was obviously out in front, but the securities needed to find a home in a commercial code that knew only paper. (At that time, paperless securities would have been considered “general intangibles” in UCC parlance, a category unsuitable for a variety of reasons, not the least of which was that UCC searches and filings would have been necessary for utilizing such securities as collateral, an approach impossible to adapt to most transactions in fungible securities.)
In the regular corporate market in the United States, dematerialization did not occur, but another phenomenon had a similar effect: immobilization and intermediation. More and more securities were held by—and in some cases issued directly into—clearing corporations, to be held for participants who in turn held for their customers. The split between what one might consider legal title (i.e., the person who is the registered owner as far as the issuer is concerned) and beneficial ownership (i.e., the person to whom the economic benefits of ownership were to flow) was recognized in practice but not in explicit statutory language. Revisions to the UCC in the late 1970s attempted to recognize these phenomena by creating a definitive list of how interests in securities could be conveyed (whether outright or by way of security interest) and introduced a pro rata sharing rule for situations in which holdings were insufficient to cover the positions of investors. The definition of “security” limited the scope of the statute’s applicability, notwithstanding the market’s identical treatment of many different types of investments. Moreover, the rules suggested that the most determinative factor was whether the security itself was certificated or uncertificated, and each person having an interest in the security was treated as though that person had an interest in the underlying security itself, which interest could potentially be traced into the hands of any purchaser (with a limited exception for transfers within the clearing corporation context).
These shortcomings had become widely recognized by the late 1970s, and the uncomfortable fit between the federal regulations for securities maintained solely in the form of entries in the records of Federal Reserve Banks and state commercial law was a significant source of legal uncertainty. But it took a fairly significant market disruption in the late 1980s to jump-start the process of revising the law. Efforts on the state law and federal regulatory fronts played leap-frog, as drafts of proposed revisions to federal regulations were put out for comment and, with the threat of greater federal preemption hanging in the air, the appropriate groups began the process of revising Article 8 (with conforming amendments to Article 9.)
Simultaneously, various revisions to U.S. bankruptcy law—which generally annoys creditors and counterparties by interrupting enforcement of rights and sometimes avoiding transfers of interests in property—were adopted during the 1980s and 1990s to free certain market participants from these adverse consequences. Briefly, repurchase agreements, futures contracts, securities contracts, and swap agreements are now afforded special protection that allows certain counterparties to exercise their contractual remedies and access and retain the value of their collateral notwithstanding a bankruptcy proceeding in respect of the other party (and this “safe harbor” phenomenon appears not only in the U.S. Bankruptcy Code, which is available to most general corporate entities, but in the federal receivership regime governing most depositary institutions). These parallel movements had a common goal: to increase legal certainty in contexts for which systemic risk was a concern.
Principles of Commercial Law Rules Relating to Interests in Securities Held with Intermediaries
The principles outlined in this section provide a framework that accommodates market developments in securities holding and trading patterns and thus are a foundation for the legal certainty required by credit departments and regulators alike.
Principle 1. Recognize and, to the extent possible, anticipate innovations in holding patterns and the assets that may become subject to such innovations.
The law needs to grow with the market. In many jurisdictions today, however, the market is way out front. Unless there is a policy reason to the countrary, any project to revise the commercial law should aim to address the manner in which assets are in fact being held and transferred. The harder task is to craft rules that will have a long shelf life and thus are flexible enough to accommodate future holding patterns without resort to artifice or attenuated legal analogies. UCC Article 8 attempts to be accommodating in two ways: first, by recognizing a concept of indirect holding that is unlimited in terms of participants and the number of potential intermediaries in any given chain, and second, by being even more limitless (and this concept exists—see Cantor’s Theorem) in regard to what might in the future be held in the indirect holding system as we know it. This latter accommodation was accomplished in the United States through the use of the wide-open gatekeeping definition of financial asset that includes any property an intermediary agrees to treat as a financial asset. (A life insurance policy is an example of a nontraditional asset being treated as a financial asset. This approach has begun to appear in the “life settlement” business, as investors seek to acquire and transfer interests in life insurance policies without the need to involve the insurer when changing “ownership.”) As for the legal recognition of holding through intermediaries, under the UCC, the terminology that applies when a person has a direct relationship with the issuer is direct holding; when securities or other financial assets are held through one or more intermediaries, it is indirect holding. (See Figure 1.)
Two questions—who, as a corporate or regulatory matter, is permitted to act as an intermediary and what such intermediaries are permitted to hold and deal with on behalf of themselves and others—were left to other areas of law. (And the commercial law governing a financial asset in its natural state—that is, outside the securities account itself—was also untouched.)
Principle 2. Recognize and/or create an appropriate concept of property interest.
Generally speaking, in the United States the corporate and commercial law rules regarding the nature of an investor’s relationship with an issuer of securities (part of the direct holding system) did not need adjustment—nominee holdings, split legal and beneficial interests, passing through of benefits, and so on were already recognized and thus easy to integrate into the indirect holding system. But the extent of intermediation that had developed and the inherent fungibility of many of the financial assets involved led to a departure from viewing an investor’s interest in securities held indirectly as a property right traceable in all respects to an underlying security or other financial asset.
For indirect holding, the questions became (1) What is the nature of the beneficial “owner’s” property interest? and (2) What are the basic rights a beneficial owner has against its intermediary (and others) with respect to that underlying security or other financial asset?
In reponse, a security entitlement (defined in Section 8–102(a)(17)) was born: “‘Security Entitlement’ means the rights and property interest of an entitlement holder with respect to a financial asset specified in Part 5,” which rights and interests include:
Pro rata property interest in the relevant financial assets;
Obligation of the securities intermediary to maintain sufficient financial assets to cover positions it creates by crediting securities accounts;
Duty of the securities intermediary to obtain and remit payments or distributions made by issuers;
Duty of the securities intermediary to exercise rights (e.g., voting) as directed by entitlement holder;
Duty of the securities intermediary to comply with transfer instructions of entitlement holder;
Duty of the securities intermediary to change entitlement holder’s position to another available form of holding for which such entitlement holder is eligible (e.g., one can obtain a paper certificate only when and if the terms of issuance so permit).
Much flows from this recognition. Under the UCC, the investor’s rights are neither simply a derivative property interest in assets that happen to be held for customers, nor are they immune from dilution. As was just noted, an intermediary’s duties include the obligation to maintain sufficient financial assets to cover the positions of its entitlement holders. Section 8–503(a) of the UCC provides:
To the extent necessary for a securities intermediary to satisfy all security entitlements with respect to a particular financial asset, all interests in that financial asset held by the securities intermediary are held by the securities intermediary for the entitlement holders, are not property of the securities intermediary, and are not subject to claims of creditors of the securities intermediary, except as otherwise provided in Section 8–511.
Section 8–511 provides that in the event of a shortfall in financial assets, claims of entitlement holders have priority over claims of creditors other than secured creditors having control over the financial asset. (See Figure 2.)
Here the claims of the investors to particular financial assets would be satisfied out of customer and proprietary assets before unsecured creditors would have access to any of the financial assets held by the securities intermediary.
On the other hand, Section 8–503 goes on to provide:
An entitlement holder’s property interest with respect to a particular financial asset under subsection (a) is a pro rata property interest in all interests in that financial asset held by the securities intermediary, without regard to the time the intermediary acquired the interest in that financial asset. (Section 8–503(b))
This means that investors’ positions can be adversely affected by the existence of other investors
Under the UCC, on Day 2 the “overcrediting” would generally be effective, and Investor 2 would be considered as obtaining a security entitlement, Investor 1’s position being diluted. On Day 3 the intermediary would be in compliance with its obligations to both investors, and Day 4 would again involve dilution, not a “trumping” by last-in-time Investor 3.
Regarding this fact pattern, is the securities intermediary allowed to overcredit? It depends. If the action is fraudulent, no; but in the United States, if the position is created by a broker-dealer pending settlement, for example, and there is an open fail to receive, the answer is yes (for a limited period of time). (And of course we are not at this point addressing “mistaken” credits or debits.)
Recognizing a new concept of property interest in a security entitlement enables the prevention of “upper tier attachment” and itself enhances certain aspects of finality—both of which are essential to the smooth functioning of the markets. The intermediary that is maintaining the securities account for the investor is the only place the investor’s attachable property resides. UCC Article 8 makes clear that the customer’s interest cannot, except in very limited circumstances, be asserted against any other intermediary (or purchaser), and modified a rule to clarify that a creditor can attach the customer’s interest only at that level by process against the intermediary (or, if a secured party had become the entitlement holder with respect to pledged assets, by process against the secured party). This is sometimes referred to as a “no look through” approach.
This also means that in the event of an intermediary’s insolvency customers will share pro rata (category by category of the financial assets), and it seems that some method of loss sharing must be made explicit in conjunction with any recognition of the effects of holding securities through an intermediary. (For U.S. stockbrokers covered by the Securities Investor Protection Act, the sharing is done without regard to the type of financial asset—all customer property is pooled and shortfalls are allocated across financial asset categories.)
Principle 3. Provide enhanced finality.
The United States is far from unique in recognizing the concept of a good faith or other type of protected purchaser, especially in the world of tangible movables. In such a case a rightful owner can be prevented from recovering wrongfully transferred property. But in the indirect system how can such a rule be implemented? The asset is certainly far less traceable, but that doesn’t answer the question. Consider the following hypothetical:
There are two investors, one whose securities were improperly moved out by an intermediary and one who acquired a security entitlement in respect of those securities without notice that their transfer was improper. Putting the burden on the first feels unfair, and therefore there are some who might suggest that this plaintiff should enjoy the right to recapture. The question, however, is not really whether such plaintiffs should have redress. Of course they should. The question for the commercial law project is really whether the “innocent” transferee should be at risk. Of course, for the transferee to be at risk in any meaningful way presumes traceability, which is quite unlikely in the vast majority of cases. One might therefore feel comfortable supporting recapture rights under the theory that there will be few successful attempts anyway. On the other hand, in most cases the recipient has no idea where the purchased securities are coming from, and just the possibility of such a tracing or recapture right has been thought (and felt, through market experience) to constitute something of a cloud on title. The potential ripple effect in the market of tracing wrongfully transferred securities through multiple purchasers could have negative consequences exponentially exceeding the benefit to the wronged original owner. For these reasons, the policy choice made in the UCC was to permit any purchaser, including a secured party, who gives value (which in the United States means any sort of consideration) and obtains “control” (discussed in greater detail under Principle 4) without notice of a particular adverse claim to be protected against the assertion of that adverse claim. It is for this reason that the better, and perhaps more honest, outcome is for commercial law to provide clear and widely available adverse-claim cut-off rules that promote systemic confidence and thus work to the benefit of investors large and small.
Another aspect of finality that is of vital concern to market participants is finality notwithstanding the insolvency of a transferor. “Zero hour” and other recapture rules have a chilling effect on the market, and for that reason in the context of such an interlinked trading system they should be eliminated or limited as much as possible. These negative insolvency effects have been questioned as a policy matter in many corners, including at a major symposium sponsored some years back by the European Central Bank. The long and tortured history of the appropriate contours for “safe harbors” under the key U.S. insolvency regimes—recently expanded yet again—illustrates this as well.
Principle 4. Provide a flexible approach to effectiveness, perfection, and priority, including the reduction or elimination of formalities.
Flexibility has been a recognized goal in two major respects: first, in terms of what the purchaser (especially a secured party) needs to do or have done in its favor; and second, what the pledgor can continue to do.
Since the issues requiring attention arose from the indirect system, the effectiveness of physical delivery of a security in certificated form remained undisturbed. But once the indirect system became recognized for what it is—a vast electronic grid in which securities and other financial assets are moved in response to transfer or other instructions—it seemed most efficacious to accommodate these realities of the marketplace by recognizing new ways to effect transfers of interests—that is, not being limited to the ways one would typically transfer a physical certificate (e.g., physical delivery) or an intangible (e.g., notice to the obligor). In fairness, this did not begin with the development of the “security entitlement” concept. Book entries had been recognized for quite some time, but not with the full panoply of attendant rights the market required.
In the United States the concept of “control” was introduced as a statutory construct: a transfer is perfected (i.e., enforceable against third parties) if the transferee has the right, enforceable against the intermediary, to direct the disposition of the subject assets. Such control can materialize in one of three types of situations. First, a transferee who has the financial assets credited to its own securities account is considered to be in control of the financial assets. This is the situation that involves a book entry in the classic sense of a debit and corresponding credit. (See Figures 4a and 4b.)
Second, the intermediary with which a securities account is maintained is considered, as a matter of law, to be in control of the financial assets carried in that securities account. (No book entry is needed in such a fact pattern. Market participants are expected to assume that an “upper tier” intermediary, often involved in the clearing and settlement of securities on behalf of its customers, would have a lien without making a notation on its books). (See Figure 5.) The UCC includes a statutory lien in favor of such intermediaries as well, which arises in the circumstance in which the intermediary extends credit to the customer in connection with the acquisition of a financial asset and is limited in scope to a security interest in the particular asset securing the particular extension of credit. (Section 9–206)
Control via Being the Securities Intermediary
Third, a transferee who obtains the agreement of the intermediary to act on the transferee’s instructions without further consent of the transferor has obtained control. (The UCC states explicitly that an intermediary is under no duty to enter into such an agreement and is prohibited from doing so without its customer’s consent). Again, this third situation requires no book entry and has proved enormously useful, including for individual investors. (See Figure 6.)
Control via a Securities Account Control Agreement
No registration of any sort is required. (In the United States perfection by filing a UCC financing statement is an option, but this affords less priority). And a book entry is not the only way to effect a transfer of an interest. There are other settings in which the requirement of a book entry would seem inappropriate—net settlement systems do not make debits and credits for each movement of financial assets. That would defeat the whole purpose; gifts and inheritances, a bankruptcy trustee’s assertion of jurisdiction over estate assets—all these are likely to need effectiveness notwithstanding the lack of a book entry.
The second aspect of flexibility mentioned above is the degree to which the pledgor can continue to have access to the property, i.e., permitting a pledgor to continue to deal with the property transferred (this is often an issue in the security interest context, for example, although other transaction forms could be involved).
The UCC concept of control does not require exclusivity: a pledgor can continue to maintain its portfolios with existing intermediaries who may not wish to extend credit, and can continue to trade its portfolios of securities, including through direct instructions to the relevant intermediary, notwithstanding a secured party’s parallel right to originate such instructions. The limits, if any, and the interplay of these rights are left to the parties’ agreement. The secured party may or may not be comfortable allowing debtor access, and the debtor may seek to limit the circumstances in which the secured party can take action, but effectiveness of a secured party’s interest as against third parties remains intact.
Principle 5. Recognize a secured party’s right to reuse collateral.
The line between ownership and security interest is often blurred under the law of a single jurisdiction, and in a cross-border situation it only gets more complicated. Trillions of dollars in value are involved in the reuse of financial assets transferred under securities contracts, repurchase transactions, and swap agreements, thus forming long chains of reuse. The United States has chosen to permit this explicitly whenever a secured party is in control. Reusing collateral is what the market does. If the U.S. experience is any guide, new commercial law approaches need to recognize this and permit it in a way that does not elevate form over substance. (This does not mean that an intermediary is permitted to use fully paid customer securities, of course. In the United States this would generally require the customer’s permission; even in that case it could be subject to various legal restrictions.)
It is important to reiterate that the UCC itself sits within a nest of other law and regulations that determine, among many other things, the right of an intermediary to use nonproprietary assets, and the absence of such controls (or the infrastructure to support them) could militate in favor of commercial law adjustments.
Principle 6. Provide flexible realization rules, including self-help.
In the United States a secured party has the right as a matter of law to dispose of property in which it has a security interest after default, but the secured party’s actions must be commercially reasonable. For commonly traded financial assets, prompt collateral liquidation without the need for any sort of judicial intervention is one of the hallmarks of the type of commercial law rule this market requires. Limiting interference of the commercial law with using self-help to realize on marketable and fungible collateral reduces the likelihood of gridlock and the systemic risk that could ensue.
Principle 7. Where warranted, provide special protections for intermediaries.
Three circumstances might apply here. The first is allowing special deference to the rules of regulated/supervised clearing organizations and central counterparties. (This principle is also recognized in the EU Settlement Finality Directive.) These entities or systems are key players in the smooth flow of securities trading and settlement and generally do not (in fact, are often not permitted to) maintain true proprietary positions. In the United States the concept of “clearing corporation” is limited to:
a person that is registered as a “clearing agency” under the federal securities laws;
a federal reserve bank; or
any other person that provides clearance or settlement services with respect to financial assets that would require it to register as a clearing agency under the federal securities laws but for an exclusion or exemption from the registration requirement, if its activities as a clearing corporation, including promulgation of the rules, are subject to regulation by a federal or state governmental authority.
Although this category has been expanded somewhat over the years, it is still a fairly small club. Because of the important role played by these institutions and the nature and extent of their supervision (at least in the United States), the UCC includes special rules just for clearing corporations. One is found in UCC Section 8–111, which provides: “A rule adopted by a clearing corporation governing rights and obligations among the clearing corporation and its participants in the clearing corporation is effective even if the rule conflicts with this [Act] and affects another party who does not consent to the rule.” This section provides essential comfort to clearing organizations that the various loss sharing, finality, and failed-settlement rules they adopt will be given effect irrespective of what Article 8 would otherwise mandate.
The second circumstance allows a departure from the usual relationship between a securities intermediary’s customers and its creditors. As mentioned earlier, creditors without control are generally subordinated to customers, and secured creditors having control are superior. In the clearing corporation context, however, the rule is different. The clearing corporation is a direct holder of securities, which means that control would require re-registration or possession of certificates or control agreements with issuers. Requiring a clearing corporation’s secured creditors—in practice limited to liquidity lines to provide end-of-day failed-settlement financing—to obtain control in any of those ways could be disruptive to ordinary securities processing if put in place at the outset, and impossible to accomplish in a timely manner if only put in place when an end-of-day loan was required. Given this special situation, the UCC provides, under Section 8–511(c), that all creditors of clearing corporations have priority over customers.
The third circumstance is an adjustment to the rules governing when interests in securities held indirectly are acquired free of adverse claims. Section 8–115 of the UCC (“Securities Intermediary and Others Not Liable to Adverse Claimant”) provides:
A securities intermediary that has transferred a financial asset pursuant to an effective entitlement order, or a broker or other agent or bailee that has dealt with a financial asset at the direction of its customer or principal, is not liable to a person having an adverse claim to the financial asset, unless the securities intermediary, or broker or other agent or bailee:
(1) took the action after it had been served with an injunction, restraining order, or other legal process enjoining it from doing so, issued by a court of competent jurisdiction, and had a reasonable opportunity to act on the injunction, restraining order, or other legal process; or
(2) acted in collusion with the wrongdoer in violating the rights of the adverse claimant; or
(3) in the case of a security certificate that has been stolen, acted with notice of the adverse claim.
This standard, applicable to any securities intermediary, recognizes the “conduit” nature of the intermediary’s role and does not attribute the knowledge or wrongful behavior of customers or counterparties to the intermediary.
Principle 8. Provide clear and market-sensitive choice-of-law rules.
(The ensuing discussion concerns rights in or to securities or other financial assets held through intermediaries but does not address the relationship of parties to a transaction or the relationship between an account holder and an intermediary as a matter of contract law.)
Before the last round of UCC revisions, it would have been fair to say that while the UCC provided clear choice-of-law rules, the rules were limited in reach (by essentially applying only to secured transactions) and not market-sensitive. They were clear because the rule turned on whether the security was in certificated form, in which case the physical location of the certificate was key, or uncertificated, in which case the jurisdiction in which the issuer was organized was determinative. (This was particularly counterintuitive when applied to the U.S. Treasury and U.S. agency securities that the federal regulations had “deemed” to be maintained in bearer definition form “at a Federal Reserve Bank.”) They were not market sensitive because they did not treat the securities account itself, to which a variety of securities could be credited, as relevant. This shortcoming became an even greater liability in the cross-border situation.
The fact pattern shown in Figure 7, or in any fact pattern involving indirect holding, participants need to know what law governs their rights against others, known and unknown. This includes the counterparty to a given sale or pledge transaction (and its insolvency representative), the intermediary or intermediaries with which the parties dealt, other entities involved in the transfer and holding of the relevant assets, and competing claimants of all sorts. And the answer needed to make sense—not point to a jurisdiction with no discernibly relevant relationship to the rights and interests being determined (e.g., the Delaware jurisdiction of organization or the New York vault, shown in Figure 7).
The response in the United States was to take an unprecedented path: the concept of securities intermediary’s jurisdiction was developed. In general terms, the law governing the rights one acquired via a credit to one’s securities account, whether an adverse claim could be asserted against a purchaser, perfection in most circumstances, and priority of a security interest, is the law of the securities intermediary’s jurisdiction. This concept is not entirely intuitive, and has definitely taken some getting used to (especially for practitioners from outside the United States).
UCC Section 8–110(e) Applicable Law
The following UCC rules determine a securities intermediary’s jurisdiction:
An express selection of a securities intermediary’s jurisdiction in the relevant agreement between the securities intermediary and its entitlement holder;
An express selection of a governing law in the relevant agreement between the securities intermediary and its entitlement holder;
An express provision in the relevant agreement between the securities intermediary and its entitlement holder that the securities account is maintained at an office in a particular jurisdiction;
The jurisdiction in which the office identified in an account statement as the office serving the entitlement holder’s account is located;
The jurisdiction in which the chief executive office of the securities intermediary is located;
Keeping this shift in mind—from the location of the security certificate or the jurisdiction of the issuer to the securities intermediary’s jurisdiction—one can see that the relevant law in Figure 7 will be determined in some way by reference to the Swiss Bank. Whether Swiss law will in fact apply or what Swiss law has to say (substantively) are beyond the scope of this chapter. But focusing on the choice of law, we’ve now eliminated several other jurisdictions (e.g., location of certificate, jurisdiction of issuer’s organization, location of securities register, pledgor’s or seller’s location, and jurisdictions relevant to other intermediaries). A possibility for what a diversified portfolio might look are illustrated in Figure 8.
The UCC will point to the securities intermediary’s jurisdiction, without regard to issuer, physical location of any certificates or any intermediary (such as a sub-custodian) other than the Swiss Bank. Moreover, the applicable law will be the local law—i.e., not including any conflicts of law rules—of the securities intermediary’s jurisdiction. In the foregoing example, therefore, although New York law will apply to the pledge or sale relationship between the Swedish investor and the New York bank, the substantive law of Switzerland will apply to, among other matters, the effectiveness and priority of the pledge against most third parties. Whether this would be the result if the issue is considered under non-U.S. law is currently a source of uncertainty in most jurisdictions and for this reason this author, for one, hopes for the adoption of the Hague Convention on the Law Applicable to Certain Rights in respect of Securities Held with an Intermediary (the topic of the next chapter by Christophe Bernasconi).
All statutory section references herein are to these Articles.
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