Abstract

This technique was originally an Anglo-Saxon technique in which a borrower borrowed under a single loan agreement from a group of banks, and in addition to the syndicated loan, the borrower and the syndicate of banks, there is a security agent. The role of the security agent is to create, manage and enforce securities in his or her own name but on the behalf of the lending banks, to secure the claims of these banks. The security agent, which resulted from the common law, was adopted in countries with a civil law tradition, as the syndicated loan technique internationalised. However, the equivalent of security agents in some continental law countries — such as the Agent des Sûretés — seems relatively far from its Anglo-Saxon model. For example, French banking practice makes the French Agent des Sûretés the proxy holder of the lending banks. This proxy holder cannot create securities in his or her own name, but only in the name and on the behalf of the banking pool. He or she must obtain special powers from the banks for any act that goes beyond a simple administrative act. Lastly, like any other proxy holder, the French Agent des Sûretés can be dismissed ad nutum. The French legislator, under a law dated 19 February 2007, tried to give the French Agent des Sûretés a more advantageous legal status, but article 2381-1 of the Civil Code is too imprecise and incomplete. In contrast, the security agent introduced by the OHADA uniform Act that organises securities, dated 15 December 2010, offers a more interesting alternative to the security agent. Indeed, thanks to a comprehensive legislative package, the OHADA Agent des Sûretés — which is characterised as a fiduciary — is able to create any kind of securities and guarantees in his name and on the behalf of the banks he represents. The OHADA Agent des Sûretés is undeniably closer to the security agent and should inspire the French legislator to look ahead to the reform of article 2381-1 of the Civil Code.