Arrunada Seminar: Corrado Malberti – What could be the next steps in the elaboration of a general theory of public registers?

30 January 2013 at 10:51 am Lasse 3 comments

| Corrado Malberti |

What could be the next steps in the elaboration of a general theory of public registers?

From a lawyer’s perspective, one of the most important contributions of Arruñada’s Institutional Foundations of Impersonal Exchange is the creation of a general economic theory on public registers. Even if this work is principally focused on business registers and on registers concerning immovable property, many of the results professor Arruñada achieves could be easily extended to other registers already existing in many legal systems or at the transnational level.

For example, a first extension of the theories proposed by professor Arruñada could be made by examining the functioning of the registers that collect information on the status and capacity of persons. A second field that should probably benefit from professor Arruñada’s achievements is that of public registers that operate at a transnational level and established by international treaties. In particular, in this second case, the reference is obviously to the Cape Town convention on International Interests in Mobile Equipment which will, and — to some extent — already has, resulted in the creation of different registers for the registrations of security interests for Aircrafts, Railway Rolling Stock, and Space Assets. In my view it will be important to test in what measure the solutions adopted for these registers are consistent with the results of Arruñada’s analysis.

Corrado Malberti, Professor in Commercial Law. University of Luxembourg. Commissione Studi Consiglio Nazionale del Notariato.

Entry filed under: - Lien -, Institutions, Law and Economics, New Institutional Economics, Theory of the Firm.

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3 Comments Add your own

1. Benito Arruñada | 1 February 2013 at 1:40 pm

Thank you for the post and the kind words. The analytical framework is applicable to other registries and the book sketches analyses of registries for financial assets, Internet domains and intellectual property, which in many respects are similar to real property. Civil registries are also covered, as they are not only essential for economic development but, to some extent, are a precondition for functional land and company registries. As mentioned in a brief section analyzing the economics of powers of attorney, registries on legal capacity—at least for the revocation of general powers of attorney—might also solve the problems that still plague representation by proxy in most jurisdictions.

International registries pose interesting problems, as they face jurisdictional conflicts which are somehow similar to those between local and state-wide solutions. The register for international security interests on aircraft, up to now the only one that has been created under the 2011 Convention on international interests in mobile equipment, seems to be a good example of one of the tradeoffs emphasized in the book: the one between registry’s inputs and outputs. Having been designed as a minimalist registry, in order to achieve expediency it proceeds to register without a previous review of filings—in particular, without reviewing the parties’ consent. This lack of review inevitably constrains the registry to produce only limited assurance.
2. Mala Gunasekera | 7 April 2013 at 3:01 am

Lawyer from Sri Lanka Member of Terra Institute USA. I have researched on the subject of registration of title under the Deed system and the Torrens system, visited several registries in many jurisdictions.
Introduction of biometric methods to identify the existing registered owner before land transactions are settled [ sale , mortgage etc] would be the best solution to maintain the integrity of a land registry. The input of a person’s finger print or a digital photograph with a high performing biometric device to upgrade the register ‘s integrity I think is essential to manage a conclusive register.
The countries that have secured the identification process of owners have succeeded in maintaining reliable land registries. The said countries in the recent past have compelled solicitors to execute documents only after identifying owners. In some jurisdictions land registrars works as quasi judicial officers, rejecting invalid documents to maintain the integrity of the land registries.
A Registry records only the name of an owner it does not mirror the identification of the owner; the registry therefore is not conclusive with regard to ownership. As a result land fraud and illegal transactions have amazingly increased and have adversely affected the land registry system. This situation has led to inconsistent judicial pronouncements in many jurisdictions.

I would like to participate in seminars to obtain more knowledge, appreciate to be informed -Thank you
3. Benito Arruñada | 7 April 2013 at 2:05 pm

Market-supporting institutions, such as registries and courts, are interrelated. Therefore, it is hard to decide which institution should be created or reformed first. Yet reformers must often choose not only because resources are scarce but also because the ordering of their efforts may substantially affect their outcome. As I argue in the book (pp. 118-22), sequencing interventions, it seems natural to take as a primary guide the most usual sequence in the input-output production process. In this process, land and business registries are mostly intermediate steps. They use information on the identity of individuals (rightholders and company shareholders and officers) produced by civil registries and the identification system and deliver outputs to be used primarily by courts, contractual parties, and administrative agencies. Therefore, before policymakers undertake the costly deployment or improvement of land and company registries, it will often be best for them to develop or upgrade the institutions used for identifying individuals, such as civil registries. For a similar reason, with respect to real property, they might opt to invest in systems for identifying buildings and land parcels, such as unified nomenclatures of postal addresses and place names. (This has, however, little to do with generalized mapping of land and drawing of parcel boundaries, which is a much more costly and less justified proposition). Similar considerations would lead them to develop or reform contractual registries before the court system or at least not to intervene in courts before registries.