Account Control Agreement Perfection
In general, the PPSA provides for safety standards, including „registration,” „control” and „detention or withdrawal,” and the nature of safeguards influences the method of perfection. In most provincial PPSAs, the perfection of an interest in securities for cash security (or „money” or „accounts,” as it is sometimes called in the PPSA) can be enhanced by registering a funding statement or by holding or withdrawing. In Canada, registration is generally the method used and used for perfection. To obtain your security interest in the current account vis-à-vis third parties, security interests must be improved. How can you respect your permissions and get a perfect security interest on this deposit account? A problem could arise if the control agreement and the „customer agreement” between the custodian bank and the debtor as a customer in connection with the opening of the account explicitly provided for a specific but different jurisdiction for the purposes of the UCC as the bank`s jurisdiction, as any agreement would be „an agreement between the bank and its client for the deposit account”. The same problem could arise if neither the control agreement nor the customer agreement explicitly provides for the bank`s competence, but any such agreement provides that it is subject to the law of a specific but different jurisdiction. In order to avoid such problems, all guaranteed parties (i) should encourage their control agreements to explicitly state that a particular jurisdiction falls within the Bank`s jurisdiction for the purposes of the UCC, and (ii) consider supplementing their control agreements with the provision (or, in this sense, the words): UCC 9-304 (b) contains a „cascade” of methods to determine the jurisdiction of a custodian bank for the purposes of the UCC. „When an agreement between the bank and its client on the account expressly provides that a particular jurisdiction is the jurisdiction of the bank for [UCC], that jurisdiction is the jurisdiction of the bank when an agreement between the bank and its client on the account expressly provides that the bank has jurisdiction for the needs of [uCC].” „If paragraph 1 is not applicable and an agreement between the bank and its client on the account expressly provides that the agreement is governed by the law of a particular jurisdiction, ucC (b)) (2) finds that „the bank`s jurisdiction is jurisdictional where paragraph 1 is not applicable and expressly provides for an agreement between the bank and its client on the account that the agreement is governed by the law of a particular jurisdiction.” A lender can establish „control” in one of the following ways: (i) the borrower holds his deposit account directly with the lender; 2. The lender becomes the effective owner of the borrower`s deposit accounts with the borrower`s custodian banks; or (3) the lender and borrower enter into a deposit account control agreement (known as DACA) with the borrower`s deposit bank. These agreements apply in all cases in addition to the guarantee agreement by which the borrower grants a security interest on his deposit accounts. Uncertainty can be created by a development system that requires financial statements or holdings to enhance a security interest in cash guarantees. Under the changes proposed by different interest groups, a secure party controlling the account would have priority over any other party that has no control.
If the proposed amendments are adopted, the UCC and PPSA regimes would be harmonized to ensure much-needed consistency in cross-border transactions. The general rule according to the UCC is that perfection, the effect of perfection or imperfection and the priority of a security interest are governed by the local laws of jurisdiction in which the debtor finds himself. However, the local jurisdictional law of a custodian bank governs perfection, the effect of perfection or imperfection, and the priority of an interest in securities in a deposit account managed by the custodian bank, in accordance with UCC 9-304 (a).