Moss/Fletcher Distinguished lecture
The first in the series of Moss/Fletcher distinguished lectures took place online on 10th November 2021. The series is sponsored by South Square, and the International Insolvency Institute in memory of Gabriel Moss QC and Ian Fletcher QC, and this lecture was hosted by the School of Law, Makerere University, Kampala, Uganda and introduced and chaired by Associate Professor Dr Winnie Tarinyeba Kiryabwire.
The keynote lecture was given by Sir Roy Goode QC, Professor Emeritus, Oxford University on “The Cape Town Convention and its Implications for Secured Transactions Law Reform in Africa with Particular Reference to the Pretoria (or MAC) Protocol.” After paying tribute to Gabriel Moss QC and Professor Ian Fletcher QC, in whose names the lecture had been established,. Professor Goode analysed the Convention (together with its Protocols), demonstrating the economic advantages flowing from the system it creates and explaining how international harmonisation and legal certainty are achieved by its provisions in the context of financing mobile and high value equipment. After discussing the problem of defining the sphere of application of the Pretoria Protocol to limit it to high value, uniquely identified MAC equipment and its solution by reference to the World Customs Organization Harmonized System Codes he went on to describe the functioning of the electronic asset-based International Registry for aircraft objects in Ireland. He discussed the operation of the Convention on the insolvency of the debtor, and some of the issues which have recently been debated relation to determination of the debtor’s centre of main interests; and the special treatment of inventory He concluded by outlining the advantages of the Cape Town Convention systems for Africa, particularly in relation to attracting new finance for mechanised agricultural equipment and reducing financing and credit insurance costs.
Professor Goode’s lecture was preceded by an analysis of the Nigerian secured transactions law by Mr. Anthony Ikemefuna Idigbe. Mr Idigbe analysed the recent reforms, and pointed out the success of the system, and particularly the registry, established under the Secured Transactions in Movable Assets Act. He also identified some remaining problems, such as the cumbersome procedure retained by the Companies and Allied Matters Act, and the difficulties caused by COVID, particularly because of the lack of a specific regime for the insolvency of Micro and Small Enterprises. He also examined the legislative process by which the MAC Protocol to the Cape Town Convention, which he saw as potentially beneficial to Nigeria, could become part of Nigerian law. Mr. Kabiito Karamagi also discussed the recently enacted secured transactions law in Uganda, but unfortunately was not able to develop his views at length due to internet connectivity issues.
Reghard Brits, Associate Professor at the University of Pretoria and Michel Koekemoer, Senior Lecturer at the University of South Africa, analysed how the secured transactions law in South Africa was not compatible with international best practice, nor did it accord with the Cape Town Convention system, with particular concentration on the MAC protocol. They pointed out the benefits of the MAC Protocol to South Africa, and they also called for reform of the entirety of secured transactions law in the region. This analysis chimed with the view that emerged from the subsequent discussion, which was that, in addition to the MAC protocol for large and higher value equipment, a more general robust secured transactions legal system, with a computerized registry, was needed to increase access to finance in African countries and to encourage assets other than land to be used as collateral by Micro, Small and Medium sized enterprises.
The lecture was well attended by participants from many African countries and was an excellent start to the Moss/Fletcher distinguished lecture series.