Banking Reform Bill Bulks Up

H.M. Treasury yesterday published 86 proposed amendments to the Banking Reform Bill. The bill is due to enter its committee stage in the House of Lords on the 8th October 2013. The proposed amendments were widely-flagged and broadly mirror the 11th March 2013 recommendations of the Parliamentary Commission on Banking Standards.  Highlights are as follows:

  • Payments: the introduction of a wholly new and distinct payment systems regulator, the intention being to stimulate competition by facilitating access to payment systems for new market participants, as well as decreasing the costs of account portability. A special administration regime to deal with cases where a key element in a payment fails or is likely to.
  • Misconduct: an extension of the FSMA approved persons regime. If passed, the amendments will allow the regulators to: make the approval subject to conditions or time-limits, extend time limits for sanctions against individuals, impose “banking standards rules” on all employees , and to hold senior managers responsible for regulatory breaches in areas which they control. PCBS chairman Andrew Tyrie, (perhaps confusing Ford Open Prison with Guantanamo), had previously advocated putting “guilty bankers in bright orange jump suits”; as widely expected, the proposals introduce criminal sanctions for reckless misconduct in the management of a bank.
  • Electrified ring-fence:  proposed new powers to formalise and streamline the “electrification” power introduced at the Commons report stage. The electricity in the ring-fence is the regulator’s power to compel separation of a banking group which breaches the boundary between retail and investment banking. The effect of the new powers is to make the ring-fence into a “variable-voltage” device. Under the proposal, the regulator will:
  1. issue a preliminary notice, the affected party will have a minimum of  14 days to reply and 3 months to make necessary changes to its behaviour/structure
  2.  failing this and with the consent of the Treasury, a warning notice will then be issued, itself triggering a minimum of 14 days for representations by the affected party
  3. a decision notice is then issued, which may be appealed before a Tribunal
  4.   a final notice is issued which set s a dead line by which a bank must separate its activities

The whole process will take approximately 14 months and the various notices will be issued in accordance with general FSMA principles.

Bail-in:  the introduction of a bail-tool as initially mandated by the European BRRD and recommended by the domestic ICB and PCBS. The Banking Act of 2009 will be amended to include a “stabilisation option” (bail-in), covering banks and investment firms and to be applied by the bank of England as lead resolution authority.  The conditions for its use are identical to those of the Special Resolution Regime:

  1. the regulator must determine that the bank is failing or is likely to fail
  2. it is not likely that any other action can avoid the failure
  3. The BoE determines that application of the bail-in power is in the public interest

The bail-in option includes the right to modify existing contracts for the purpose of mitigating the liabilities of a bank under resolution. There are a number of liabilities which will be excluded from the provision: client money, FSCS protected deposits, employee pension schemes, payment system liabilities, debts to a creditor who is critical to the bank’s daily functioning etc.

In short- the electric ring-fence is reconnected to the mains and bail-in is set to become a reality. These and other less fundamental proposed amendments represent a significant extension of regulatory powers. It remains to be seen if they will be rigorously and consistently applied to their full extent.

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HM Treasury to Extend Special Administration and Resolution Regimes

On 25 April 2013, HM Treasury published a consultation paper on the introduction of a Special Administration Regime (SAR) for inter-bank payment systems (such as Bacs, CHAPS, Continuous Linked Settlement, CREST, LCH Clearnet Ltd, Faster Payments Service and ICE Clear Europe), operators of securities settlement systems (CREST being the only example in the UK) and key service providers to these firms (e.g. IT and telecommunications providers).  Responses are requested by Wednesday 19 June 2013.

The SAR would be a variant of a normal corporate administration and would be modelled on the special administration framework used in the utilities industries and the investment bank SAR.  However, it would be modified to allow the Bank of England to exercise control of the SAR process, to enable a special administrator to transfer all or part of the business to an aquirer on an expedited basis, and to facilitate the enforcement of restrictions on early termination of third party contracts.  Under the SAR, the special administrator would have the overarching objective of maintaining the continuity of critical payment and settlement services in the interest of UK financial stability. “Non-CCP FMI”, such as exchanges and trade repositories, and entities already covered by resolution powers for central counterparties (such as LCH and ICE) would be excluded from the regime.

On 25 April 2013, HM Treasury also published a statement confirming the fact that, before the end of the summer, it will consult on the extension of the special resolution regime (SRR) established under the Banking Act 2009 to group companies, investment firms and UK clearing houses.

HM Treasury Accepts Initial Report on Investment Bank SAR

On 23 April 2013, HM Treasury published the initial report prepared by Peter Bloxham on the special administration regime for investment banks (SAR).  The independent review makes a number of immediate recommendations, which include:

  • The SAR should continue to have effect; 
  • The introduction of a mechanism to facilitate the rapid transfer of customer relationships and positions, where feasible; 
  • The bar date mechanism should be broadened to include client monies; 
  • The statutory objective in relation to client assets should be modified to include a reference to the “transfer” of assets to another institution in addition to the option of the “return” of client assets; 
  • SAR administrators should be permitted to make distributions of client assets during the period after the bar date process has commenced; 
  • Limited specific immunities to be introduced for SAR administrators; 
  • Good practice recommendations for firms, the FSA, and other institutions;
  • A number of recommendations relating specifically to the work of the Financial Services Compensation Scheme (FSCS).

The report also sets out further areas to be reviewed as part of a second phase of work which will be co-ordinated with the FSA’s review of its Client Assets Rulebook.  A final report is expected by the end of July 2013.  

HM Treasury made a further announcement in a written statement to the House of Commons on 23 April 2013, accepting the main recommendations of the report.  The Treasury agrees that SAR should be retained and accepts that amendments to that regime will be necessary in order to fulfil its objectives.

Ex Freshfields partner to review special administration regime for investment banks

On 13 December 2012, HM Treasury published a press release announcing that Peter Bloxham, a former Freshfields partner, has been appointed to review the special administration regime (“SAR”) for investment banks.

HM Treasury expects that an initial report will be published by the end of January 2013, with further recommendations and a fuller report being produced by the end of June 2013.  The review will be co-ordinated with the FSA’s own review of its Client Assets Rulebook, which is also expected to conclude by the end of June 2013.

Investment Bank Special Administration Does Not Trigger Repo Event of Default

Introduction

On 1 November 2012, the High Court judgment of Richards J in the case of Heis and others (Administrators of MF Global UK Ltd) v MF Global Inc[1] was published.  The judgment is of interest as it provides clarity on the application of the Investment Bank Special Administration Regulations 2011 (the “Regulations”) to boilerplate clauses within standard repo documentation.  The Regulations came into force in February 2011 pursuant to powers conferred under the Banking Act 2009, constituting a response to the financial crisis of 2008 and particularly the collapse of Lehman Brothers.  They included, for the first time, special procedures specifically designed to deal with the issues arising in relation to insolvent banks.

Background

The formal insolvency proceedings relating to the collapse of the MF Global group commenced on 31 October 2011 when MF Global Holdings Ltd (“MFG Holdings”), the US incorporated group holding company, filed for bankruptcy protection under Chapter 11 in the US.  This was followed a few hours later by the appointment of administrators pursuant to the Regulations over MF Global UK Limited (“MFG UK”), the main trading entity for the MF Global group in Europe, on the application of its directors.  Subsequently, still on the same day, a trustee was appointed under the Securities Investor Protection Act 1970 with respect to MF Global Inc (“MFG Inc”), the main trading entity of the MF Global group in the US.

The collapse of the MF Global group was attributed largely to a failed investment in European sovereign debt securities in the period between 2009 and 2011.  As part of this investment policy, MFG UK purchased securities and sold them to MFG Inc via repo transactions documented under a standard 2000 Global Master Repurchase Agreement (“GMRA”) governed by English law.

The GMRA

Paragraph 10 of the GMRA defines Events of Default.  Most default circumstances require the non-Defaulting Party to serve a “Default Notice” on the Defaulting Party before the circumstance itself crystallises into an actual Event of Default for the purposes of the GMRA.  The exception to this rule is the case of:

“…an Act of Insolvency…which is the presentation of a petition for winding-up or any analogous proceeding or the appointment of a liquidator or analogous officer of the Defaulting Party …”

An “Act of Insolvency” is defined in paragraph 2(a) of the GMRA and includes the appointment of any trustee, administrator, receiver, liquidator or analogous officer over a party to the GMRA or any material part of its property.  Broadly speaking, following the occurrence of an Event of Default, valuations for the purposes of closing-out transactions are performed by the non-Defaulting Party.

The Issues

MFG Inc conceded that the appointment of the SIPA Trustee constituted the ‘appointment of an officer analogous to a liquidator’ and that this would automatically lead to an Event of Default under the GMRA.  Ordinarily, this would also have resulted in MFG Inc being the Defaulting Party and MFG UK being the non-Defaulting Party under the GMRA.  However, MFG Inc argued that the earlier appointment of an administrator in relation to MGF UK under the Regulations also constituted ‘the appointment of an officer analogous to a liquidator’.  As such, MFG Inc claimed that the automatic Event of Default had actually occurred at this earlier point, with the result that MFG Inc was actually the non-Defaulting Party and MFG UK was the Defaulting Party.  The fact that MFG UK would have to make payment to MFG Inc was not in dispute.  However, the identity of the non-Defaulting Party was of key importance given that MFG Inc valued its claim at GBP 286.7 million, whereas MFG UK valued the claim at only GBP 37 million.

Broadly, therefore, the issue to be considered by the court was whether the appointment of an administrator in relation to MFG UK was analogous to the appointment of a liquidator and therefore automatically constituted an Event of Default under the GMRA without the need for service of a Default Notice by MFG Inc.

The Judgment

The court considered the nature of liquidation versus administration.  It concluded that the sole purpose of a liquidation is to realise the assets of a company and to distribute proceeds to creditors.  In doing so, the business of the company is brought to an end.  It acknowledged that an administration may also result in the realisation of a company’s assets and a distribution of proceeds among creditors, but noted that administration can also entail the rescue of the company as a going concern.  In reaching this conclusion, the court took support from the objectives of the Regulations, which are:

  • to ensure the return of client assets as soon as reasonably practicable;
  • to ensure timely engagement with market infrastructure bodes and Authorities; and
  • either to:
    • rescue the investment bank as a going concern, or
    • wind it up in the best interests of the creditors.

The court also referred to Australian authority[2] in which the appointment of statutory administrators and receivers appointed by secured creditors was held not to be analogous to the appointment of a liquidator, their relative positions being summarised as follows:

“The function of a liquidator…is to preside over the death of a company.  An administrator…strives for the opposite result (even though the company may yet in the end die).  A receiver appointed by a secured creditor does neither of those things, being largely unconcerned about the fate of the company.”

The court contrasted the unqualified power of an administrator “to carry on the business of the company”, establish subsidiaries, borrow money and do “all other things incidental to the exercise of the foregoing powers” against the more restricted powers of a liquidator.  This, it felt, was consistent with the differing nature and objectives of the two regimes.  It also drew further support from the drafting of the GMRA itself, commenting that it was understandable that a non-Defaulting Party would wish to have an opportunity to wait and see how administration proceedings develop before deciding whether to exercise its right to serve a Default Notice.  In contrast, in a liquidation scenario where the company will cease to carry on business, it is equally understandable that an Event of Default occurred automatically without the need to serve notice.

Accordingly, the court held that the appointment of a special administrator under the Regulations was not analogous to the appointment of a liquidator and furthermore that an application under the Regulations for a special administration order was not analogous to a petition for a winding-up for the purposes of paragraph 10(a)(iv) of the GMRA.  Accordingly the appointment of administrators with respect to MFG UK on 31 October 2011 did not constitute an Event of Default under the GMRA.

Conclusion

This case provides useful insight into the operation of the Regulations and their interaction with standard repo documentation.  Thankfully, the Bankruptcy Events of Default under both the 1992 and 2002 ISDA Master Agreements would seem less susceptible to this issue, due to the manner in which “Automatic Early Termination” operates under the ISDA Master Agreement and the specific drafting of the standard ISDA Bankruptcy Event of Default.  Nonetheless, the conclusions of the court provide a timely reminder of the way in which legal risk can develop when portfolios of documentation fail to keep pace with changing circumstances and the benefits of performing period reviews in managing that risk.


[1] [2012] EWHC 3068 (Ch)

[2] Lindholm, In re Opes Prime Stockbroking Ltd [2008] FCA 1425 and Beconwood Securities Pty Ltd v. Australia and New Zealand Banking Group Pty Ltd (2008) 66 ACSR 116