SSRN Id1471990

Retention of Title Clauses in International Trade Law Wires
R ETENTION OF TITLE CLAUSES IN

I N TERNATIONAL TRADE LAW
A Need For Reform
John David H. Wires

August 2009
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TABLE OF CONTENTS
Introduction 4
Part I 5
The Current International Legal Framework and ROT Clauses 5
The English and Australian Approach 9
The Canadian Approach 11
The US Approach 13
The Swiss Approach 16
The French Approach 17
Summary of Current Approach: A Caution to International Sellers 18
Part II 19
Reform 19
UNCITRAL Model Law on Cross Border Insolvency 20
Regional Reform 22
Technological Reform: Reducing Administrative Costs 22
Is Australian Reforming in the Wrong Direction? 23
Conclusion 23
Bibliography 26
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INDEX OF ABBREVIATIONS
CISG Convention on the International Sale of Goods

EC European Community
EU European Union
ICC International Chamber of Commerce
NAFTA North American Free Trade Agreement
New York Convention The New York Convention On The Recognition and
Enforcement of Foreign Arbitral Awards
PPSA Personal Property and Security Act (Canada)
ROT Retention of Title
SMS Short Message Service
UCC Uniform Commercial Code (United States)
UNCITRAL United Nations Commission on International Trade Law
Electronic copy available at: https://ssrn.com/abstract=1471990

Introduction
The Reservation of Title (ROT) or Romalpa clause1 is a commonly used commercial contract term.
Reservation of title clauses stipulate that title to goods sold does not pass to a buyer until the price
for those goods has been paid in full. The clause contractually alters the general legal presumption
that title in goods passes upon delivery. ROT clauses are used in both common law and civil law
legal systems around the world, and serve as a means for sellers to obtain security over their goods,
having provided them on credit to a buyer.
The security interest produced by an ROT clause is primarily to protect a seller’s interests in the
event of a buyer’s insolvency. That is, where a buyer in possession of goods becomes insolvent,
under a well drafted ROT clause, a seller can retain those goods as the proper owner. In effect, as
the goods are not owned by the buyer they cannot be made subject to insolvency proceedings. From
an economic standpoint, ROT clauses have been recognised as an integral part of commercial law
because they promote trade even where buyers have no access to upfront capital.
In the current economic crisis, in which access to capital has become a major issue for businesses
around the globe, ROT clauses are an effective way for encouraging commercial transactions. As
such, the use of ROT clauses will likely become more attractive to both sellers and buyers. Yet, with
the advent of globalisation a greater number of commercial transactions are conducted across
national borders. In turn, the validity of ROT clauses has become an issue for not just domestic
legal systems, but an important consideration for private international law.
Part I of the paper examines how the current international legal framework deals with the use of
ROT clauses in international trade. It explores the current problems and risks imposed on sellers
when using ROT clauses to sell goods across national borders. In turn, the paper will highlight that
the current international legal framework leaves a great deal of uncertainty for companies relying
on ROT clauses. This is because the validity of the clause is often left to the buyer’s insolvency
courts.
As such, Part II argues that the international legal framework requires significant reforms for
dealing with retention of title clauses in order to provide certainty and confidence to enterprises
selling goods internationally on credit to their buyers.
1 See Aluminium Industry Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676.
4

Part I
The Current International Legal Framework and ROT Clauses
Retention of title clauses have received little attention in the international context. The European
Union (EU) is by far the most active in addressing ROTs in the international sale of goods. In the
early 1980s the EU considered the fact that ROTs cause problems with regard to cross border
insolvency. In particular, sellers were losing title over their goods (despite purporting to retain it)
when their goods become subject to a buyer’s insolvency proceedings. There was no harmonised
European approach for determining when a ROT clause would be valid and when it would not.
Despite an ambitious agenda in the 1980s to create a uniform cross border directive on the
recognition and effects of simple retention of title clauses, the EC, over 20 years later, settled for
something much less.2 Today, two EC Treaty Regulations attempt to deal with the problem. First,
Article 4 of Directive 2000/35/EC (On Combating Late Payment in Commercial Transactions)
provides that:
Member States shall provide in conformity with the applicable national provisions designated
by private international law that the seller retains title to goods until they are fully paid for if a
retention of title clause has been expressly agreed between the buyer and the seller before the
delivery of the goods.
However, as noted by the European Court of Justice in Commission of the European Communities v
Italian Republic,3 the regulation merely forces a buyers courts to uphold an ROT clause if their
national law would do so in the domestic context. Article 4 of the Directive is intended to promote
the equal treatment of foreign trade enterprises and domestic enterprises within domestic courts. It
does not ensure a uniform approach to the validity of ROT clauses across EU Member States.
Therefore, despite the regulation, sellers must still understand how a buyer’s domestic courts will
view the validity of the ROT clause. As Michael Milo notes, ‘[t]his makes the outcome of
questions of property law cases in international transactions unclear.’ 4
Second, the EU regulation on cross border insolvency declares that:
2 The Law Reform Commission (Ireland), ‘Report on Debt Collection: Retention of Title, p 15. Available online at
<http://www.lawreform.ie/publications/data/volume7/lrc_51.html>.
3 Judgment of the Court (Second Chamber) [2006] ECR I-10597.
4 Michael Milo, ‘Retention of Title in European Business Transaction’ (2003) 43 Washburn L.J. 121.

The opening of insolvency proceedings against the purchaser of an asset shall not affect the
seller’s rights based on a reservation of title where at the time of the opening of proceedings
the asset is situated within the territory of a Member State other than the State of opening of
proceedings.5
Yet, once again no requirement is set for a uniform approach to the use of the ROT clause. The
insolvency regulation merely suggests that each county’s insolvency courts must recognise an ROT
clause where the law governing the contract would allow the seller to retain title over the goods. A
seller therefore must still carefully consider whether the buyer’s insolvency courts will uphold its
ROT clause.
There are no other conventions, either within the EU, or within the greater international community
which govern the passage of title in sales contracts. Even the United Nations Convention on
Contracts for the International Sale of Goods 1980 (CISG) remains silent on the passing of title.
Article 4 states that the CISG is not concerned with ‘the effect which the contract may have on the
property in the goods sold’.6 Likewise, Article 30 notes that the seller obligations is to, ‘transfer the
property in the goods, as required by the contract.’
Surprisingly, there is also no mention of retaining title under the UNICITRAL Model Law on
Cross-Border Insolvency. As retention of title matters often end up as disputes over the property in
goods of an insolvent enterprise, the Model Law is an important place to address the validity of
ROT clauses across borders. This was recognised by the EC in their insolvency regulations (above),
but failed to make its way into the international community via UNICITRAL’s text.
Lastly, even the ICC’s INCOTERMS do not specify when title in goods is to pass from seller to
buyer.7 The INCOTERMS are commonly used trade terms that companies often incorporate into
their sales contracts. The INCOTERMS only clarify when risk (i.e. liability for the goods, but not
title) passes to a buyer, who pays for delivery and who is to insure the goods while in transit.
5 Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, Art 7.

6 Art.4(b).
7 Albert H. Kritzer, ‘Passage of Risk: Comments on Passage of Risk Under National Rules, Under CISG, Under
Incoterms’ Pace Law School Institute of International Commercial Law, 1. Available online at <http://
www.cisg.law.pace.edu/cisg/text/passage.html >.
6

Nevertheless, even if the ICC trade terms did specify when title was to pass, those terms would still
be subject to the applicable law to determine their validity.
What are the Implications of the Current Framework?

Without an international convention governing the passing of title in goods, the issue is solely
governed by the contract of sale and the domestic law which govern that contract. As a result, the
law governing ROT clauses in international trade is very decentralised. There is no universally
accepted method or approach for determining whether a retention of title clause will be recognised
as a valid means of security.
This has stark implications for international sellers. The most common problem associated with an
ROT clause is that many enterprises use them in standard form contracts without carefully
considering their validity outside national borders. That is, the clause might be effective in their
own domestic courts, but the real test the clause faces is whether the buyer’s insolvency courts will
give full effect to the clause, so as to secure the seller’s purported retention of title. As a result, one
of the biggest implications of the current framework is that sellers often unwittingly lose title to
their goods upon their buyer’s insolvency.
Furthermore, under the current framework, when international sellers must fear whether their
ROT’s are valid or not, it has the effect of either:
1. Demoting the use of ROT’s. As noted, this perpetuates the lack of available credit, or
2. Slowing international trade, because sellers are reluctant to sell on credit to international
buyers.
Either way, an analysis of the current framework for dealing with ROT clauses requires a
consideration of how various domestic legal systems deal with ROT clauses. This was a point
recognised in the leading Australian case of Roder Zelt- und Hallenkonstruktionen Gmbh v.
Rosedown Park Party Ltd.8 Roder was the first reported Australian decision to address not only the
CISG, but also the validity of an ROT clause under the CISG and private international law. Von
Doussa J in the Federal Court of Australia (South Australia District) held that the clause’s
8(1995) 57 Fed. Ct. Rep. (Austl.) 216-240, CLOUT No. 308 (Fed. Ct., S. Austl. District, Adelaide Apr. 28, 1995).
Hereinafter Roder.
7

construction and meaning were governed by the CISG,9 but the validity of the clause was governed
by the applicable national law (in this case either German or Australian law) since the ‘validity and
property effects of a sale contract are expressly excluded from the Convention's scope’.10
Noting that both Australian and German law allowed for the ROT to be upheld, the German seller,
Roder, was able to exempt his goods from the winding up proceedings in Australia. However, as we
will explore, sellers will not be so fortunate under all national legal systems.
The decision in Roder, to look to domestic law for the validity of a retention of title clause, quickly
gained academic approval for the approach to be taken under the CISG. For example, Jacob S.
Ziegel notes,
Once the seller has performed its obligations under the agreement, I believe the security
aspects should be treated as wholly outside CISG and as governed by domestic law under
the relevant conflict of laws rules. 11
The decision in Roder also appears to be the position many courts around the world take, or will
take, when confronted with ROT clauses in international sales contracts.12 One further example is
illustrated by the German Appellate Court of Koblenz in a case concerning a motor yacht.13 In that
case, the German Court held that in determining the validity of a retention clause, German law
applies because the CISG does not govern the passing of ownership in goods.
Therefore, to understand the current law on creating security interests by way of ROTs we must
examine the various positions of national courts on the matter. The following section examines the
use of ROT clauses in England, Australia, Canada, the United States, Switzerland and France.
These legal systems have been selected because they best illustrate the vastly different approaches
domestic courts take to enforcing ROT clauses in international trade.
9 Von Doussa J citing CISG Arts. 8, 11, 15, 18 and 29.

10 Ibid, Art. 4(a)-(b).
11 Jacob S. Ziegel, ‘Comment on Roder Zelt- und Hallenkonstruktionen GmbH in Review of the Convention on
Contracts for the International Sale of Goods’ (1998), Kluwer Law International Pace ed. (1999), 53-54. Available
online at <http://www.osgoode.yorku.ca/cisg/writings/ziegelfour.htm >.
12 The Law Reform Commission (Ireland), ‘Report on Debt Collection: Retention of Title, p 16. Available online at
13 Oberlandesgericht Koblenz decision from 16.01.1992, 5 U 534/91, RIW 1992, 1019-1021). Summary available
online at <http://cisgw3.law.pace.edu/cases/920116g1.html>.
8

The English and Australian Approach

In England, the case of Aluminium Industry Vaassen BV v Romalpa Aluminium Ltd.14 confirmed that
sellers can retain title in goods despite passing both possession and risk for those goods to the
buyer. In fact, the decision went one step further and held that a ROT clause may be extended to
provide that where goods subject to the clause are on-sold by the buyer, the proceeds of the sale
may be held on trust for the supplier. That is, based on the establishment of a fiduciary relationship
between the buyer (agent) and seller (principle), the equitable remedy of tracing can be granted.
The legal basis upon which Romalpa was decided was the English Sale of Goods Act.15 In
particular, s 20 provides that title passes upon delivery, but reserves the right for parties to ‘agree
otherwise’. As such, parties can contractually agree that title is to pass at a later or earlier date than
delivery. Similarly, in Australia, each state government has implemented sale of goods legislation
which closely follows the English approach.16 As a result, Romalpa represents the current
Australian approach for dealing with ROTs as well.
However, the development of the law on retaining title grew in complexity in the years following
the decision in Romalpa. For example, as Denis Ong notes, the position where the seller’s goods are
mixed with other goods in the course of manufacturing by the buyer creates problems for a simple
retention of title clause.17 The issue becomes whether the seller can claim title over the newly
manufactured goods, and if so, to what extent?
This matter was addressed in the English case of Borden v Scottish Timber Products.18 In Borden,
the Court held that the supplier maintained title to the goods supplied up until the point of its
manufacturing. However, when the supplied goods were no longer ascertainable (after being mixed
with other goods in the manufacturing process) ‘title to the [supplied goods] became
meaningless’.19 In such a case, a simple retention of title clause becomes ineffective in protecting a
sellers interest. The Court highlighted that for the seller to retain an interest in the goods after they
were used in manufacturing process, the contract must have provided so.
14 [1976] 1 WLR 676. Hereinafter Romalpa.

15 The Sale of Goods Act 1973 (UK). The Act consolidates the Sale of Goods Act 1893 (UK)
16 See for example The Sale of Goods Act 1896 (Qld), s 20.
17 Denis S. K Ong, ‘Romalpa Clauses’ Bond Law Review, Vol.4 [1992], Iss. 2, Art. 5.
18 [1981] CL 25. Hereinafter Borden.
19 Ibid, per Templeman LJ.

The subsequent issue courts were faced with was to determine if proceeds from a sale of the
manufactured goods could be claimed by the seller upon the buyer’s insolvency. This was at issue
in Re Peachdart.20 In Peachdart, the seller, having learned from Borden's case, purported to retain
title over not just the goods supplied, but also any manufactured product made with his supplied
goods.
The problem the court faced was that, based on the contract, it could not establish a fiduciary duty
as in the case of Romalpa, where goods were on-sold on behalf of the seller (i.e. an agency
relationship). Therefore, the equitable remedy of tracing the proceeds from selling the final
manufactured goods could not be granted. Specifically, no fiduciary duty was established because
under the contract, the buyer was able to deal with the manufactured goods as it saw fit, without
direction from the seller. Likewise, no obligation arose to keep the profits from the sale of the goods
in separate bank accounts.
The Mere Charge Argument

Despite the contract’s wording suggesting otherwise, the Court found that the parties must have
intended to create a ‘mere charge’ over the goods. In Peachdart’s case, because the seller had not
registered the so called charge in accordance with the companies legislation, the seller lost their
preferential claim over the goods and proceeds from the sale of the manufacturing.
The mere charge argument was subsequently overturned in Clough Mill v Martin21. The Court held
that there could be no charge created by the buyer over the goods because it had received nothing
over which it could grant a charge. That is, the seller cannot have a charge over goods that it already
owns.
As a result of the English court abandoning the mere charge ruling, the present law in both England
and Australia allows sellers to retain title to manufactured goods and trace proceeds without having
to register their security interest as a charge. This is a sharp contrast to other legal systems
(discussed below).
20 [1983] 3 All ER 204. Hereinafter Peachdart.

21 [1985] 1 WLR 111. Hereinafter Clough Mill.
10

The Canadian Approach

While Australia and a other common law countries such as Singapore22 have closely followed the
English approach, others such as Canada and the United States have adopted significantly different
laws concerning ROTs.
In Canada, sale of goods legislation falls within provincial jurisdiction. Each province has almost
identical legislation modeled after the Sale of Goods Act 1973 (UK). For example, under the
Ontario Sale of Goods Act R.S.O. 199023 a similar position to that of England is taken concerning
the passage of title. Section 18(1) declares that property in goods passes at the moment the parties
intend it to pass. This allows parties to contractually agree to retention of title provisions.
However, each province has also legislated a version of the Personal Property Security Act
(PPSA)24 which significantly alters the English common law position concerning the registration of
security interests created by way of a retention of title provision.
As explored above, under English common law, a well drafted ROT clause does not need to be
registered, as it does not constitute a charge or other security interest pursuant English company
law. However, under the Personal Property Security legislation in Canada, a retention of title clause
is classified broadly as a ‘security interest’. 25 All security interests must be registered in order to be
effective against third parties.
Section 20(3) of the Ontario version of the PPSA expressly indicates that purchase money securities
such as ROT clauses must be registered within ten days to be perfected.26 In effect, the PPSA
reduces a seller's status from an owner of the goods to a mere secured party comparable to a
creditor with a charge. As a secured party, the status of their security is subject to the rules of
priority outlined in the Act.
22 AG v Peter Chi Man Kwong [1988] 2 M.L.J. 69. In Ag v Peter Chi Man Kwong it was held that reservation of title
clauses are recognised in Singapore and they do not need to be registered under s 131 of the Companies Act. As cited by
Joyce Lee Suet Lin, ‘Company Charges Under Singapore Law: Legal and Practical Implications’ (2003) 14(1)
International Company and Commercial Law Review, 3.
23 Sale of Goods Act R.S.O. 1990
24 In Ontario see for example the Personal Property Security Act R.S.O. 1990.
25 Personal Property Security Act R.S.O. 1990, 2(a) which states that the act applies to ‘every transaction without regard
to its form and without regard to the person who has title to the collateral that in substance creates a security interest.’
See also the definitions section for ‘security interest’ where it includes purchase money securities as security interests.
26 Personal Property Security Act R.S.O. 1990, 20(3).
11

In contrast to the English approach, sellers relying on ROT clauses are no longer automatically
ranked higher in priority against prior secured creditors. 27 The sellers priority over the goods can
only be established if the requirements for perfecting security interests applicable to purchase
money security interests (ROT clause) under the PPSA are satisfied.
This approach is sometimes critised for its lack of business efficacy. That is, every time a retention
of title clause is agreed to, it must be lodged in a similar fashion to that of a charge in order to be
effective. For businesses that enter sales agreements on a daily basis, this process becomes tedious
and expensive to administer.
Furthermore, a seller who provides goods under an ROT has limited remedies under the PPSA
when compared to the English approach. For example, the seller does not have the right to simply
repossess the goods or ‘dispose of them prior to the buyer’s insolvency through other trade channels
without having to account to the debtor and third parties.’ 28 The remedy of repossessing the goods
is not available because, in theory, despite a contract which purports to retain title, seller’s are in
fact merely creating a charge under the PPSA. On this point, Michael G. Bridge states:
The only remedy is to allow the buyer to on-sell and reclaim [the] debt owed. This means
that the buyer (who is now the owner of the goods subject to the security interest) has a
full-fledge right of redemption and a corresponding right to any surplus on a forced resale
of the collateral. 29
Nevertheless, to ease the statutory burden on the seller, under s 81.1 of the Federal Bankruptcy and
Insolvency Act,30 a supplier may repossess goods from a business which has gone into bankruptcy
or receivership within thirty days of delivery. In other words, in some circumstances under the
PPSA a seller who sells on credit to a buyer can still rank higher in priority against prior secured
creditors.
27 Michael G. Bridge, Roderick A. Macdonald, Ralph L Simmonds and Catherine Walksh, ‘Formalism, Functionalism
and Understanding the Law of Secured Transactions’ (1999) 44 MCGLJ 567, 593.
28 Ibid, 592.
29 Ibid, 592-593.
30 Bankruptcy and Insolvency Act R.S.C. 1985.
12

How does Canada apply this approach in international context?

The Ontario version of the PPSA specifies that in a conflict of laws situation, the law of the debtor’s
(i.e. buyer’s) jurisdiction shall apply in resolving the dispute.31 Therefore, when faced with a claim
over goods subject to an ROT clause, Canadian courts must settle the dispute by applying the
PPSA.
This occurs even where the law selected by the parties to govern a contract was not Canadian law.
Therefor, under the conflict of laws rules in the PPSA, if a contract specified English law to govern,
the English seller would be led to believe he did not need to register his interest (because as noted
English does not require registration). Yet, because Canadian courts will still apply the PPSA in
such a situation, they conclude that the English seller’s interest should have been registered in
Ontario in order to be perfected and valid against other creditors. Indeed, this is a significant factor
that all enterprises selling to Canadians on credit must carefully consider. As discussed below, it is a
trap in which many international sellers have found themselves in, subsequently losing title to their
goods.
The US Approach
The Canadian approach appears to be modeled after the Uniform Commercial Code (UCC) in the
United States. Specifically, under Article 9 (Secured Transactions) a seller can include a retention of
title provision over goods supplied to a buyer and receive special priority over previously secured
creditors.32 However, as in Canada, if the seller wishes to make its security interest effective against
third parties, it must perfect the security interest by filing a ‘financial statement’ (i.e. register the
security interest).33
The security interest created under a financial statement is effective for five years from the date of
filing. After the five year period, the perfection of the security interest ceases unless a continuation
statement is filed by the secured party within six months of its expiration.
31 Personal Property Security Act R.S.O. 1990, s 7(1)(a)-(b).

32 UCC § 9-102(2) states: ‘This Article applies to security interests created by contract including...conditional sale...or
title retention.’
33 UCC § 9. As cited by Philip R. Wood, ‘Comparative Law of Security Interests and Title Finance’ 2nd Ed (2007),
[33-030].
13

Again, in theory the seller is not so much retaining title as they are creating a charge over the goods
supplied. This is because a retention of title clause cannot prevent the ownership of the goods
passing to the buyer as soon as they are delivered. As such, just as under the PPSA there is no
specific right for the seller to repossess the goods unless repossession is expressly dealt with in the
contract and that right does not affect another creditor’s prior interest over the goods.
Remedies under the UCC are very similar to the remedies provided for under the PPSA in Canada.
The UCC also deals with situations where the buyer enters insolvency and has not paid for the
goods. In such instances, Article 9 s 324(b) allows for a party to trace proceeds from on-selling the
goods, but only where the proceeds are identifiable (for example in a separate bank account) and
received by the buyer on or before the date of delivery of the inventory from the original seller.
How does the US apply this approach in international context?

The most potent illustration of the problem sellers face with regards to the use of ROT clauses in
international trade comes from the American case of Usinor Industeel v. Leeco Steel Products, Inc. 34
In Unisor, a contract for the sale of steel from a French company (Usinor) to an American buyer
(Leeco) in Chicago stated that French law was to govern the contract. Leeco even agreed that any
dispute regarding the steel shipments would be resolved by a French court. However, as explored
below, in retention of title cases, the asset or goods in question will usually be in the buyers
jurisdiction. A seller has little option but to commence proceedings in the buyers courts as a foreign
judgement would likely be of little use in obtaining good title.
When the case was brought to the Illinois District Court, Lindberg J was faced with determining the
appropriate law to govern the contract and its retention of title provision. Rightfully so, His Honour
noted that the dispute was governed by the CISG as France and the United States were both
signatories. However, relying on the Australian case of Roder, His Honour concluded that the
CISG did not govern the validity of the retention of title provision.35
This led to a consideration, as in Roder, of which domestic law applied to govern the validity of the
retention of title clause. Lindberg J makes it clear that his decision in selecting the appropriate law
was swayed by the fact that a Chicago based bank (LaSalle), which had financed Leeco’s purchase
34 209 F.Supp.2d 880 N.D.Ill.,2002. March 28, 2002. Hereinafter Usinor.

35 Ibid, 886.
14

through a line of credit, and whom had a registered floating charge over Leeco’s inventory
(including the steel), would be affected by the applicable law.
That is, if French law applied, Usinor’s interest in the steel did not need to be registered under the
UCC. Usinor would retain title over the steel, meaning that LaSalle (the American bank) would
have no security interest because as a charge holder it cannot take an interest in a debtor’s inventory
which the debtor has not yet acquired title over himself.
Conversely, applying Illinois’ law would mean that the retention of title clause, classified as a
‘security interest’, should have been registered in order to gain priority over LaSalle’s floating
charge. Of course, the French enterprise, Usinor, had not registered its ROT clause under the UCC
as it was unaware it was required to do so.
Despite the contract stating French law was to govern the dispute, Lindberg J applied the law of
Illinois in order to protect LaSalle’s (the American bank’s) floating charge. On this point, Lindberg
J looked to the similar U.S. case of Gordon v Clifford Metal Sales Co. Inc.36 where it was held that
the law of the state of the situs of the steel at the time of insolvency was the most appropriate law to
govern the contract.37 He declared that the State where the steel is located will have a ‘natural
interest’ in the transaction.38 As such, its laws should govern the outcome. While it is far from a
strict legalist approach to interpreting a contract and its choice of law provision, it is hardly
surprising that American courts will apply American law in such circumstances.
Nevertheless, Usinor forwarded an argument which this paper attempts to bring to light. Usinor
argued that on a practical level,‘[international sellers] would not be able to conduct an evaluation of
determining the applicable law to security interests in the hundreds of jurisdictions to which [they]
ship and sell [goods] because the cost would be unreasonable.’39
Usinor highlighted that the current international framework forces sellers to understand the
securities laws of each country it trades with in order to understand if, or how its ROT can be made
36 602 A.2d 535 (1992).

37 Usinor, 887
38 Ibid, 886.
39 Ibid, 887 (at Foot note 1).
15

valid. Aside from just Canada and the United States, other countries such as Spain40 and Israel (in
some cases)41 require the registration of the interest created by way of an ROT clause.
Furthermore, similar to the position in Canada and the United States, countries such as Spain42 and
China43 will also apply their own domestic property and security laws regardless of the choice of
law provision in the contract.
The Swiss Approach

The Swiss civil law approach to ROT clauses in international trade is unique in comparison to its
common law counterparts in England, Australia, Canada and the United States. As a civil law
country that relies more on its civil code than its case law, Switzerland is the only country with laws
that expressly deal with how retention of title clauses will be governed both domestically and
internationally (i.e. for Swiss importers and exporters). For this reason, the Swiss approach is
perhaps the most advanced because, as discussed below, it forces Swiss enterprises to understand
their obligations in terms of registering their security interests abroad.
Article 104 of Switzerland's Federal Code on Private International Law 44 states that the parties to an
international sales contract are entitled to choose the law governing not just the contract, but also
the transfer of ownership. This is a sharp contrast to the Australian approach in Roder, the Canadian
position under the PPSA and American position outlined in Usinor which contend that it is the
domestic law of either the debtor (PPSA), or the situs of the goods (Usinor) that applies to the
transfer of ownership regardless of the choice of law.
Therefore, in Switzerland, parties under an international sales contract may elect to apply the laws
of Australia to the transfer of ownership. In such an instance, the ROT clause would not need to be
registered with any public register in either Australia or Switzerland. Even more significantly, a
seller wishing to enforce its ROT clause in a Swiss court could have the Swiss courts apply
Australian law.
40 Uria Menendez, ‘Spain: Retention of Title Arrangements as Security Interest in Spanish Related Financings’ (2002)
Mondaq, 3.2. Available online at <http://www.mondaq.com/article.asp?articleid=15949>.
41 Amir Seraya and Mark Phillips, ‘Israel: Sale of Goods - Retention of Title Clauses’ (2003) International Company
and Commercial Law Review.

42 Above n 40, 3.2.
43 Alexander von Ziegler, ‘Transfer of Ownership in International Trade’ (1999), 291.
44 Switzerland's Federal Code on Private International Law. Private translation of the official text by UMBRICHT
Attorneys, Switzerland, © by Dr. Robert P. Umbricht, LL.M.

16

By contrast, if the applicable law required the ROT clause to be registered (for example in Canada
or the United States), according to Swiss Law the ROT is only valid and operative when it has been
entered in the appropriate public register. Otherwise such a clause is null and void.45 This provides
Swiss exporters with greater clarity as to what the current law concerning ROT clauses in
international trade actually is, and when they need to register their interests.
In fact, Swiss law expressly warns sellers that retention of title for goods destined for export shall
be subject to the law of the state of destination.46 This means that even where Swiss law is applied
to govern the contract, it is the domestic laws of the buyer that will likely apply to the transfer of
title in the goods.
For Swiss enterprises importing goods subject to an ROT clause, Article 102 (2)-(3) of
Switzerland's Federal Code on Private International Law47 requires the registration of ROTs where
Swiss law is selected to govern the passing of title. However, the foreign seller’s retention of title
clause remains effective in Switzerland for three months regardless of whether it was registered or
not. Failing to register the interest during this time may result in the seller loosing its priority over
the goods in relation to other secured creditors.48
The Swiss approach recognises the fact that countries around the world with which Switzerland
trades have different approaches to determining the validity of ROTs. It encourages its enterprises
to register their ROTs and comply with the laws and registration requirements imposed by its
trading partners. As a result, Swiss enterprises are far less likely to end up in the unfortunate
situation that the French company Usinor found itself in, in the United States.
The French Approach

French law permits a seller of goods which are subject to a retention of title clause to recover them
where the buyer is bankrupt, but only subject to certain conditions. For example, the retention of
title clause must be in writing and executed no later than the date of delivery of the goods to the
45 Switzerland's Federal Code on Private International Law, Art. 715(1). As cited by Thomas Laemmli, ‘Transfer of
Ownership in International Sales of Goods’ (2007), 36.
46 Ibid, Art. 103.
47 Above n 44.
48 Above n 45.
17

buyer.49 The goods covered must also be tangible personal property and identifiable. That is, they
cannot be incorporated into other goods via manufacturing. This is a far more stringent requirement
to the position in the UK and Australia, where ROT clauses can provide for the equitable remedy of
tracing proceeds where goods subject to an ROT clause are used to manufacturing a new good.
As a result, under the French approach it is easy to see why the French company Usinor believed it
had properly retained title to the unmanufactured steel provided on credit to their American trading
partner (Leeco).
Summary of Current Approach: A Caution to International Sellers

The above analysis highlights the significantly different approaches taken by domestic courts
around the world for determining the validity of ROT clauses. The differing approaches requires
that prudent international sellers consider two main factors. First, the law chosen to govern the
contract must permit the use of ROT clauses. Perhaps more importantly, even where the law permits
ROT’s, the seller must then also ensure that no further steps are required to make the clause
effective against both prior and post transaction secured creditors.
Second, sellers must inquire whether the conflict of laws rules in the buyer’s country will allow for
the use of the law chosen to govern the contract. For example, if the contract specifies Australian
law to govern, but the buyer’s insolvency court refused to apply Australian law to govern the
passing of title (as under the PPSA) the seller must still register their interest.
As a side note, the seller may want to also consider how arbitrators as opposed to courts will
interpret the current law of ROTs in international trade. The trend away from solving international
commercial disputes in courts and towards arbitration adds another variable to the equation, making
the law even more unclear and decentralised. Arbitrators may be more willing to apply a choice of
law provision in a contract to the passing of title, despite a buyer’s laws (such as Canada)
purporting to apply. Nonetheless, the enforceability of such an award under the New York
Convention50 will still face the public policy test in any domestic court.51
49 The Law Reform Commission (Ireland), ‘Report on Debt Collection: Retention of Title, 14-15. Available online at
50 The New York Convention On The Recognition and Enforcement of Foreign Arbitral Awards, opened for signature
1958, 330 UNTS 3, (entered into force 7 June 1959).

51 Ibid, Art V(b)(2) .
18

Furthermore, because many arbitration awards are made behind closed doors and the doctrine of
precedent is not as closely followed in international commercial arbitration, predicting how an
arbitrator will deal with ROT disputes is not an exact science.
Part II
Part I has outlined how retention of title clauses operate in private international law. By analysing
the different approaches domestic courts have taken around the world for enforcing retention
clauses this paper has argued that the current law concerning ROTs is decentralised and often
unclear for sellers.
As a result, sellers who provide goods on credit to their buyers have to spend significant time and
money to understand what the personal property and securities legislation of each trading partner
are, and where appropriate, spend further resources registering each particular interest to ensure
their goods are protected in the event of a buyer’s insolvency. Having to do this each time goods are
sold creates an excessive administrative burden on trading companies and manufacturers.
For smaller enterprises, the added legal expenses and administrative burdens required to protect
their interests are likely enough to demote the use of ROTs in international trade and require buyers
to have upfront capital. As such, reducing the administrative and legal burdens is important for
promoting international trade and providing confidence to international sellers. More importantly,
easing the legal and administrative burdens reduces the sellers risk of losing title to their goods, as
in the case of Usinor.
Reform
In a seller’s ideal world they could provide goods on credit, retain title and be able to repossess
those goods at the buyer’s expense should there be a default on the credit agreement. But just how
far will countries be willing to go in achieving harmonisation? Having countries such as Canada
and the United States remove their legislative requirements to register ROT clauses is not a likely
outcome of any attempt at reforming the current legal framework.
19

Accordingly, the question is, without having counties change their requirements to register ROT
clauses as security interests, how can the international legal framework be reformed to protect
sellers from losing title to their goods, and reduce the associated legal and administrative costs for
international sellers?
UNCITRAL Model Law on Cross Border Insolvency

The most logical starting point is UNCITRAL’s Cross Border Model Law on Insolvency. This is
because, as noted, the majority of disputes concerning international ROT clauses will occur where
the buyer enters insolvency.
In the short term, to make strides towards a more harmonised legal framework we can turn to the
initial steps the EU has implemented in their Insolvency Regulations. That is, the Model Law
should be amended to guarantee the same treatment to international sellers that a domestic legal
system provides to enterprises within its borders with respect to recognising simple ROT clauses.
Similarly, just as in Switzerland's Federal Code on Private International Law, the Model Law
should expressly highlight that a seller may be required to register their ROT in the buyer’s
jurisdiction.
At a minimum, these two provision will bring the risk associated with ROTs in international trade to
the forefront for sellers. They will act as a warning mechanism to parties such as Usinor to take
action to ensure they do not lose title to goods.
A Proposition for Long Term Reform

However, to fully protect international sellers from the present risk posed by ROTs more ambitious
long term reforms should be sought. When considering more substantial reforms, the current legal
framework can be neatly divided into countries that require the registration of ROT clauses to
perfect the newly created security interest and those that do not. If we accept that countries such as
the Untied States and Canada will not alter their registration requirements, The Model Law will be
most effective by dealing with these two categories separately in two protocols or optional articles
that countries can adopt.
20

Under the first optional protocol, countries such as the UK and Australia, which do not require the
registration of ROTs, can adopt a policy of reciprocity. That is, they can mutually recognise that
retention of title clauses shall be effective against third parties in each other’s countries. The Model
Law would then annex a draft clause that parties can incorporate into contracts, which shall
automatically be deemed to be a valid method of retaining title in all of the countries which have
signed the first optional protocol.
Of course, the draft clause would need to provide for protection in all of the various situations that
may arise in normal trade dealings. This would include simple retention of title clauses that protect
against a buyer on-selling goods, but also more complex dealings where parties use goods supplied
to manufacture a new good.
While achieving such a consensus may prove difficult (as it would require countries such as France
to alter their position that title cannot be retained in goods which have been mixed in a
manufacturing process), at a minimum ensuring protection for simple retention of title clauses is
reasonably achievable.
Sellers dealing with buyers in countries who have signed the first optional protocol can then take
the draft clause and implement it into the contract with certainty that it will be enforced.
Furthermore, simply checking who has ratified the first optional protocol informs international
sellers of all the countries it can sell to on credit without having to worry about registering their
interest.
Under the second protocol, countries such as Canada and the United States, who require the
registration of ROTs as security interests, can create a central public register to record all security
interests created pursuant to a retention of title provision. This would provide prior secured
creditors and future creditors with notice (or at least constructive notice) of the transaction and that
the goods remain either the property of the sellers, or are subject to a security interest.
The ROT register would by no means be unique. It would operate in a similar fashion to the World
Intellectual Property Organisation’s (WIPO’s) register, which has created a centralised approach to
registering intellectual property internationally. WIPO allows for the registration with one central
organisation to be deemed as registration in all other signatory countries. In the retention of title
21

context, this allows for sellers to only have to deal with one organisation as opposed to registering
the clause in each buyers country (a task which Usinor rightfully argued is absurd to force upon
international sellers).
As a result of the two optional protocols or optional articles to sign onto, sellers are better protected
from the risk of losing title to their goods. Likewise, the cost of administering the registration of the
clauses is vastly reduced. It may also be projected that by having established the first optional
protocol, more countires will be inclined to ‘join the group’ so as to increase the ease of
international trade for its importers and exporters.
Regional Reform
Failing any greater global reform via UNCITRAL’s model law, regional trading blocs can still try to
promote better integration with regard to ROTs. For example, the above noted amendments for
UNCITRAL’s Model Law could equally be inserted into the North American Free Trade Agreement
(NAFTA), or other regional trading communities.
Technological Reform: Reducing Administrative Costs

The incorporation of modern technology into any central register created under the above
mentioned second optional protocol can greatly aid in tackling the administrative burden imposed
on international sellers. For example, in Australia certain public registrars are slowly adopting
computer based systems, publicly accessible and updatable in real time. Some are now primarily
accessed through the internet and B2G connections, but also operate through SMS, call centre and
physical lodgement channels.52
Such technological advancements in the lodgment process is a key element to reducing

administrative costs for international sellers in registering their interest in any central register.
Sellers can protect their interests far easier if all it takes in an email or SMS to register a new ROT
clause with UNTCITRAL’s public register.
52 Attorney-General’sDepartment (Australia), Personal Property Securities Register (2009) Attorney-General’s

Department (Australia) <http://www.ag.gov.au/www/agd/agd.nsf/Page/
Consultationsreformsandreviews_personalpropertysecuritiesreform_PersonalPropertySecuritiesRegister> at 20 July
2009.
22

Is Australian Reforming in the Wrong Direction?

Australia is currently in the process of adopting personal property and security legislation that
closely mimics the Canadian and American approach, turning ROTs into registrable security
interests.53 The push for the reform has largely been advocated for by the banking industry via the
Banking Law Association (BLA),54 who will benefit from sellers both domestically and
internationally having to register their security interests created by way of ROT’s. That is, banks
will be able to maintain their priority as charge holders over sellers who purport to have retained
title. As a result of the proposed reforms, the battle of priority in insolvency cases will more often
sway in favour of banks as opposed to sellers with retention clauses.
The Attorney-General of Australia predicts the reforms will be implemented by May 2011.55
However, it is unlikely that the Attorney-General has considered the profound impact the reforms
will have on international trade. For instances, the decision in the Australian case of Roder (noted
above) would likely be reversed. An Australian judge would have no option but to rule in a similar
fashion to the finding in Usinor in the United States.
In terms of protecting international sellers, the Australian reforms will certainly be a step
backwards. The wider question arises as to whether the Australian reforms are establishing a trend
for other countries to follow. Should the trend that ROT clauses must be registered as security
interests be further established, the importance of a central registrar under the Model Law will be
evermore essential. In fact, it will be one of the few remaining solutions to protect international
sellers selling on credit, without slowing international trade in a time where credit has become so
sparse.
Conclusion
By in large, retention of title clauses have received little attention in the international context. No
trading bloc, let alone international convention, has managed to create any sense of uniformity or
reciprocity in recognising even simple retention of title clauses across borders.
53 Ibid. See also the Personal Property Securities Bill 2008 (Cth).
54 David E. Allan, ‘Uniform Personal Property Security Legislation for Australia: Introduction to the Workshop on
Personal Property Security Law Reform’ (2002) 14(1) Bond Law Review, 4. Available online at <http://
epublications.bond.edu.au/blr/vol14/iss1/1>.
55 Above n 51.
23

As a result, each country applies its own domestic law to determine the validity of ROT’s, which as
illustrated, is often problematic for sellers unaware of registration requirements for purchase money
securities in the buyer’s jurisdiction.
The current approaches that countries take can be divided into two main systems. There are those
countries which require registration, and those which, by a properly worded contract, allow for the
reservation of title in not only goods supplied, but also the proceeds from on-selling or
manufacturing.
As a result of the decentralised system, sellers in countries such as France56 and Germany,57 who
trade with countries which require the registration of ROTs, have unwittingly lost title to their
goods, and have even been charged with conversion for improperly repossessing what they believe
to be their own goods.58 Likewise, sellers who have managed to protect their goods via registration
have done so only with the great administrative burden of registering each contract of sale they
enter, in each of their buyer’s jurisdictions.
The author has advocated for a two tier solution under optional protocols as amendments to
UNCITRAL’s Model Law on Cross-Border Insolvency. As countries which require registration of
ROT clauses will likely not change their position (and indeed the trend seems to be for more
countries to move in the direction of mandatory registration) it it is best for international law to deal
with the countries who require registration separate from those that do not.
However, of greatest importance is the establishment of a central registrar which utilises modern
technology to make the registration of ROTs, and other security interests, fast and easy. In the mean
time, international sellers who sell of credit to their buyers must understand the securities laws of
the countries they trade with, because choice of law provisions have little effect in a buyer’s
insolvency court.
56 Usinor
57 See for example Hong Kong and Shanghai Banking Corp., Ltd. (HSBC) v. HFH USA Corp., 805 F. Supp. 133
(W.D.N.Y. 1992).
58 Ibid.
24

25

Bibliography
1. Articles/Books/Reports
Allan, David E, ‘Uniform Personal Property Security Legislation for Australia: Introduction to the Workshop on
Personal Property Security Law Reform’ (2002) 14(1) Bond Law Review. Available online at <http://
epublications.bond.edu.au/blr/vol14/iss1/1>.
Attorney-General’s Department (Australia), Personal Property Securities Register (2009) Attorney-General’s
Department (Australia) <http://www.ag.gov.au/www/agd/agd.nsf/Page/
Consultationsreformsandreviews_personalpropertysecuritiesreform_PersonalPropertySecuritiesRegister> at 20 July
2009.
Bridge, Michael G., Macdonald Roderick A., Simmonds Ralph L., and Walksh, Catherine, ‘Formalism, Functionalism
and Understanding the Law of Secured Transactions’ (1999) 44 MCGLJ 567.
Lin, Joyce Lee Suet, ‘Company Charges Under Singapore Law: Legal and Practical Implications’ (2003) 14(1)
International Company and Commercial Law Review, 3.
Kritzer, Albert H., ‘Passage of Risk: Comments on Passage of Risk Under National Rules, Under CISG, Under
Incoterms’ Pace Law School Institute of International Commercial Law. Available online at <http://
www.cisg.law.pace.edu/cisg/text/passage.html >.
Laemmli, Thomas,‘Transfer of Ownership in International Sales of Goods’ (2007).
The Law Reform Commission (Ireland), ‘Report on Debt Collection: Retention of Title. Available online at <http://
www.lawreform.ie/publications/data/volume7/lrc_51.html>.
Menendez, Uria, ‘Spain: Retention of Title Arrangements as Security Interest in Spanish Related Financing’ Mondaq
(2002), at 3.2. Available online at <http://www.mondaq.com/article.asp?articleid=15949>.
Milo, Michael, ‘Retention of Title in European Business Transaction’ (2003) 43 Washburn L.J. 121.
Omar, Paul J., ‘The UNCITRAL Model Law on Cross-Border Insolvency’ 10(8) (1999) International Company and
Commercial Law Review.
Ong, Denis S. K., ‘Romalpa Clauses’ Bond Law Review, Vol.4 [1992], Iss. 2, Art. 5.
Pauly, Clemens W., ‘Is Avoidance Under CISG Article 64 A Powerful Remedy? Comparison Of The CISG Remedy
With Third-Party Rights’. Available online at <http://www.langstadtpauly.com/site/uploads/CISG%20essay
%20Pauly.pdf.>.
Phillips, Mark and Seraya, Amir, ‘Israel: Sale of Goods - Retention of Title Clauses’ (2003) International Company
and Commercial Law Review.
Tribe, John ‘The Morality of Romalpa Clauses in Corporate Insolvency: A Case for Reform? Tolley's Insolvency Law
and Practice (2001) Vol 17, No 5 IL&P 166 1 September 2001.
Watt, Benjamin, ‘The Sprit Of Insolvency In France: A Study Of Gallic Charm From A Scots Perspective’ (1996) 7(7)
International Company and Commercial Law Review.
Wood, Philip R, ‘Comparative Law of Security Interests and Title Finance’ 2nd Ed (2007).
Ziegel, Jacob S., ‘Comment on Roder Zelt- und Hallenkonstruktionen GmbH in Review of the Convention on Contracts
for the International Sale of Goods’ (1998), Kluwer Law International Pace ed. (1999), 53-54. Available online at
<http://www.osgoode.yorku.ca/cisg/writings/ziegelfour.htm >.
Ziegler, Alexander von, ‘Transfer of Ownership in International Trade’ (1999).
2. Case Law
Australia
Roder Zelt- und Hallenkonstruktionen GmbH v. Rosedown Park Party Ltd. (1995) 57 Fed. Ct. Rep., 216-240; CLOUT
No. 308.
England
Aluminium Industry Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676.
Borden v Scottish Timber Products [1981] CL 25.
26

Re Peachdart [1983] 3 All ER 204.
European Union
Commission of the European Communities v Italian Republic Judgment of the Court (Second Chamber) [2006] ECR
I-10597.
Germany
Oberlandesgericht Koblenz decision from 16.01.1992, 5 U 534/91, RIW 1992, 1019-1021). Summary available online
at <http://cisgw3.law.pace.edu/cases/920116g1.html>.
United States
Gordon v Clifford Metal Sales Co. Inc. 602 A.2d 535 (1992).
Hong Kong and Shanghai Banking Corp., Ltd. (HSBC) v. HFH USA Corp., 805 F. Supp. 133 (W.D.N.Y. 1992).
Italverde Trading, Inc. v. Four Bills of Lading, 485 F. Supp.2d 187 (E.D.N.Y. 2007).
Usinor Industeel v. Leeco Steel Products, Inc., 209 F.Supp.2d 880 N.D.Ill.,2002. March 28, 2002.
3. Bills and Legislation

Companies Act (Singapore) 1967.
Bankruptcy and Insolvency Act R.S.C. 1985.
Personal Property Security Act R.S.O. 1990.
Personal Property Securities Bill 2008 (Cth).
The Sale of Goods Act (Qld) 1896.
The Sale of Goods Act (UK) 1973.
The Sale of Goods Act (UK) 1893.
Switzerland's Federal Code on Private International Law. Private translation of the official text by UMBRICHT
Attorneys, Switzerland, © by Dr. Robert P. Umbricht, LL.M.
4. International Treaties and Materials

Council Regulation (EC) No 1346/2000 of 29 May 2000 On Insolvency Proceedings.
Directive 2000/35/EC (On Combating Late Payment in Commercial Transactions).
The New York Convention On The Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 1958,
330 UNTS 3, (entered into force 7 June 1959).
UNCITRAL, ‘Model Law on Cross-Boarder Insolvency (1997).
United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG).
The Vienna Convention on the Laws of Treaties, opened for signature 23 May 1969, UNTS Vol. 1157. (entered into
force on 27 January 1980).
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Retention of Title Clauses in International Trade Law Wires

R ETENTION OF TITLE CLAUSES IN

A Need For Reform

John David H. Wires

CISG Convention on the International Sale of Goods

Electronic copy available at: https://ssrn.com/abstract=1471990

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Second, the EU regulation on cross border insolvency declares that:

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5 Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, Art 7.

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What are the Implications of the Current Framework?

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9 Von Doussa J citing CISG Arts. 8, 11, 15, 18 and 29.

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The English and Australian Approach

14 [1976] 1 WLR 676. Hereinafter Romalpa.

18 [1981] CL 25. Hereinafter Borden.

19 Ibid, per Templeman LJ.

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The Mere Charge Argument

20 [1983] 3 All ER 204. Hereinafter Peachdart.

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The Canadian Approach

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30 Bankruptcy and Insolvency Act R.S.C. 1985.

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How does Canada apply this approach in international context?

31 Personal Property Security Act R.S.O. 1990, s 7(1)(a)-(b).

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How does the US apply this approach in international context?

34 209 F.Supp.2d 880 N.D.Ill.,2002. March 28, 2002. Hereinafter Usinor.

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36 602 A.2d 535 (1992).

39 Ibid, 887 (at Foot note 1).

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The Swiss Approach

and Commercial Law Review.

43 Alexander von Ziegler, ‘Transfer of Ownership in International Trade’ (1999), 291.

Attorneys, Switzerland, © by Dr. Robert P. Umbricht, LL.M.

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The French Approach

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Summary of Current Approach: A Caution to International Sellers

1958, 330 UNTS 3, (entered into force 7 June 1959).

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UNCITRAL Model Law on Cross Border Insolvency

A Proposition for Long Term Reform

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Technological Reform: Reducing Administrative Costs

Such technological advancements in the lodgment process is a key element to reducing

52 Attorney-General’sDepartment (Australia), Personal Property Securities Register (2009) Attorney-General’s

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Is Australian Reforming in the Wrong Direction?

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Re Peachdart [1983] 3 All ER 204.

3. Bills and Legislation