On 6 December 2013, the Presidency of the EU Council published its latest compromise proposal (17410/13) with respect to the single resolution mechanism (SRM). Changes to the previous compromise text (17055/13) are highlighted in bold and underlined. The Council has also published a Presidency report (17411/13) dated 6 December 2013 detailing key outstanding issues relating to the SRM Regulation including: Continue reading
The document is generally supportive of the changes made within the General Approach, but highlights a few remaining areas of concern with respect to legal uncertainty, including those set out below:
- Bail-in: The RRD does not provide a set of principles to guide a resolution authority’s choice as to whether to convert debt to equity or whether to write-down debt. In addition, contractual bail-in provisions may not operate in the same way as statutory bail-in provisions;
- Valuation: It is unclear on what basis the valuation (which must be independent) is to be carried out, notwithstanding that Article 30 of the RRD provides that the valuation should be fair and realistic. This drafting ambiguity gives rise to legal uncertainty as to the status of a resolution action which is taken when a valuation at the proscribed standard has not been carried out, owing to practical difficulty or impossibility; and
- General Resolution Powers: Articles 56(1)(h) and 56(1)(l) of the RRD give a resolution authority the power to cancel or amend the terms of “debt instruments”. However, this definition is wider than that of “capital instruments” – the term used to describe the instruments that are eligible to be ‘bailed-in’.
On 14 October, the Bank of England published a speech given by Paul Tucker, Deputy Governor Financial Stability, at the Institute of International Finance 2013 Annual Membership meeting on 12 October 2013 on the subject of ‘too big to fail’.
Mr Tucker made five general points:
- The US authorities could resolve most US SIFIs right now on a ‘top-down’ basis pursuant to the powers granted under Title II of the Dodd Frank Act;
- Single Point of Entry (SPE) versus Multiple Point of Entry (MPE) may be the most important innovation in banking policy in decades;
- There is no such thing as a “bail-in bond”. Bail in is a resolution tool. All creditors can face having to absorb losses. What matters is the creditor hierarchy;
- Some impediments to smooth cross-border resolution need to be removed; and
- The resolution agenda is not just about banks and dealers. It is about central counterparties too, for example.
Mr Tucker noted that Europe is not far behind the US in its enactment of resolution powers. However, of more interest to the industry will be his belief that most banking groups will have to undergo some kind of reorganisation, irrespective of the camp into which they fall. SPE groups will need to establish holding companies from which loss-absorbing bonds can be issued. In addition, key subsidiaries will need to issue debt to their holding companies that can be written down in times of distress. MPE groups will need to do more to organise themselves into well-defined regional and functional subgroups. In addition common services, such as IT will need to be provided by stand-alone entities that can survive the break-up of an MPE group. Capital requirements for regional subsidiaries forming part of an MPE group may also be higher due to the absence of a parent/holding company that can act as a source of strength through a resolution process.
On the subject to bail-in, creditors of SPE groups will be interested to read Mr Tucker’s comments about how, within the context of a top-down resolution, bonds issued by a holding company will absorb losses before debt issued by an operating subsidiary. In effect, the holding company’s creditors are structurally subordinated to the operating company’s creditors.
Impediments to Resolution
On the subject to impediments to cross-border resolution, Mr Tucker noted that, in order to provide clarity on its previous ‘in principle’ commitment, the Bank of England needs to set down detailed conditions under which it would step aside and allow US authorities to resolve the UK subsidiaries of a US banking group. In turn, other resolution authorities, and particularly the US, need to make the same ‘in principle’ commitment as the Bank of England.
Extension of the Resolution Regime
Finally, on the subject of the resolution agenda, Mr Tucker confirmed that CCPs are the most important example of where resolution regimes need to apply. However, he did not rule out resolution regimes being extended to cover shadow banking, funds and SPVs.
On 8 October 2013, HM Treasury published a draft annex on the new bail-in option to the Special Resolution Regime (SRR). The bail-in tool is being introduced through amendments to the Banking Act 2009 by the Banking Reform Bill 2013 for the purpose of offering a new stabilisation option to the Bank of England as lead resolution authority. It will be available to failing banks and investment firms, with necessary modifications to building societies via secondary legislation and under specified conditions to banking group companies.
The draft annex to the Code of Practice supports the legal framework for the SRR and provides guidance as to when and how the bail-in tool may be deployed by authorities in practice.
A summary of the key points include:
General and Specific Conditions for Use of SRR Tools (Section 7)
The conditions for use of the bail-in option are identical to those for the stabilisation options set out in the existing Code :
the regulator must determine that the institution is failing or likely to fail;
it is not reasonably likely that action will be taken by or in respect of the bank to avoid its failure; and
the Bank of England is satisfied that exercising the bail-in power is necessary having regard to the public interest.
When choosing between the original resolution tools, the Bank of England will consider the relative merits of the stabilisation options and the bank insolvency procedure given the circumstances in addition to general considerations . The Bank of England may also choose resolution by way of bail-in for situations where the use of another stabilisation power would threaten financial stability or confidence in the banking systems.
Use of the Bail-in Powers (Section 8)
The bail-in option gives the Bank of England the power to cancel or modify the terms of any contract in a resolution scenario for the purposes of reducing or deferring a liability of the bank (“special bail-in provision”). A conversion power also exists that allows for liabilities to be converted into different forms. Certain liabilities are excluded from the scope of the power to make special bail-in provision including:
deposits covered by the Financial Services Compensation Scheme (FSCS) or an equivalent overseas scheme;
liabilities to the extent they are secured;
client assets, including client money;
liabilities with an original maturity of less than seven days which are owed to a credit institution or investment firm (save in relation to credit institutions or investment firms which are banking group companies in relation to the bank);
liabilities arising from participation in a designated settlement system and owed to such systems, or to operators or participants in such systems;
liabilities owed to central counterparties recognised by the European Securities and Markets Authority (ESMA) in accordance with Article 25 of Regulation (EU) 648/2012;
liabilities to employees or former employees in relation to accrued salary or other remuneration (with the exception of variable remuneration);
liabilities owed to employees or former employees in relation to rights under a pension scheme (with the exception of discretionary benefits); and
liabilities to a creditor arising from the provision of goods or services (other than financial services) that are critical to the daily functioning of the bank’s operations (with the exception of creditors that are companies which are banking group companies in relation to the bank).
Prior to taking resolution action or converting liabilities, resolution authorities are expected to carry out a valuation of the assets and liabilities of the institution as is reasonably practicable.
The UK has chosen to exercise the discretion granted to it under the Recovery and Resolution Directive and has included derivatives in the list of liabilities which can be bailed-in. Specific power to make special bail-in provision to derivatives and similar financial transactions can be found in Sections 8.14 – 8.17 of the Annex. The Bank of England will, where appropriate, exercise its power to close-out contracts before they are bailed in with any applicable close-out netting being taken into account. If a liability is owed, it will be excluded from bail-in so far as it is secured and compensation arrangements will follow the “no creditor worse off” principle. This ensures that no person is worse off as a result of the application of the bail-in option than they would have been had the bank gone into insolvency.
On 27 June 2013, the EU Council published a press release confirming an agreed position with respect to the Recovery and Resolution Directive (RRD) and calling on the EU Presidency to start trilogue negotiations with the EU Parliament with a view to adoption of the RRD at first reading before the end of 2013.
The press release focuses on three areas:
- Resolution funds; and
- Minimum loss absorbing capacity.
It does not contain much in the way of detail beyond that widely reported over the last week. However, it is perhaps noteworthy that only inter-bank liabilities with an original maturity of less than seven days are to be excluded from the scope of the bail-in tool.
The FT is reporting that EU Council finalised bail-in rules early this morning, agreeing that:
- as expected, insured deposits under EUR 100,000 will be exempt, and uninsured deposits of individuals and SMEs will be given preferential status;
- a minimum of 8% of total liabilities must be bailed-in before resolution funds can be used, whilst above this level, the use of resolution funds will be capped at 5% of total liabilities and will require EU approval; and
- all unsecured bondholders must be fully bailed-in before a bank is eligible to receive capital directly from the European Stability Mechanism.
Some noteworthy signs of progress over the weekend from the EU with respect to bail-in guidelines. The FT reported on Sunday night that a majority of the Council of Ministers supported an exemption for small and medium-sized enterprises (SMEs), as well as the widely-flagged exclusion of all deposits by individuals, from the ambit of bail-in provisions.
Broadly defined as enterprises with less than 250 employees and turnover no greater than €50m, SMEs are regarded as the engine of innovation and future growth, accounting for 75 million jobs and 99% of enterprises across the EU.
The bail-in mechanism forms one of the two “legs” which will comprise the single resolution mechanism. Following the decision to create a single, separately capitalised bank supervisor, the delay in agreeing the broad outline of a single bailout authority is the main stumbling block in the implementation of a European banking union.
Despite the weekend’s advance, the specific national implementation of the bail-in proposals remains a source of multiple conflicts, with talks due to resume on Wednesday. Dissension is particularly acute between Euro and non-Eurozone countries, with respect to the bail-in implications of ECB liquidity provision and the Eurozone €500bn bailout fund.
Pursuant to Article 38(3) of the original EU Commission proposal for a EU Directive establishing a framework for the recovery and resolution of credit institutions and investment firms (the “RRD”), resolution authorities may exclude derivatives transactions from the scope of the Bail-in tool if that exclusion is “necessary or appropriate” to:
- ensure the continuity of critical functions; and
- avoid significant adverse effects on financial stability.
Much has already been written as to whether derivatives should be in- or out-of-scope as far as the Bail-in tool is concerned. The practical difficulties of implementing bail-in in relation to portfolios of derivatives transactions is generally recognised. In addition, whilst excluding derivatives from the scope of bail-in creates a clear regulatory arbitrage in the way in which deals can be structured between counterparties, this risk is mitigated by the fact that firms which are subject to the RRD will be required to maintain a minimum amount of bail-inable debt at all times.
In many ways, the greater risk lies not in whether derivatives themselves are in- or out- of scope, but in the fact that Member States are given discretion to choose whether they are or not. The extent to which this is really consistent with the concept of a single market is unclear, and some commentators have questioned whether this aspect of the EU Commission draft would survive the EU trialogue process under which the EU Commission, EU Parliament and the Council of Ministers thrash out their differing opinions with respect to proposed legislation with a view to arriving at a compromise position. However, this question was largely answered on 5 June 2013, when the EU Parliament’s Economic and Monetary Affairs Committee published a report which sets out the Parliament’s proposed amendments to the RRD, in anticipation of the beginning of the trilogue process. Within the EU Parliament document, the concept of Member State discretion in determining whether derivative transactions are in- or out-of-scope for the purposes of the bail-in tool remains intact and so seems unlikely even to arise during the trilogue discussions.
Interestingly, the EU Parliament has taken matters a step further, suggesting a different amendment which would, if passed, require that cleared derivatives are treated as more senior than non-cleared derivatives in a bail-in situation. In other words, non-cleared transactions stand to be bailed-in before cleared transactions. This is understandable in the context of the drive towards central clearing. However, it will potentially change the risk associated with counterparties which are subject to the RRD and are established in jurisdictions where derivatives are within the scope of the Bail-in tool. It will also potentially impact on the price at which such trades are executed. It remains to be seen just how this provision interacts with another exclusion from the scope of the Bail-in tool – that relating to secured liabilities. It may be that only uncollateralised non-cleared transactions would be affected. Moreover, in light of requirement to enact the BCBS/IOSCO “Margin requirements for non-centrally cleared derivatives” in Europe, there may not be much of this trading activity taking place in the future. Of course, excluding secured derivatives from the scope of the bail-in regime would likely defeat the point of bailing in derivatives in the first place. In this scenario the discretion afforded to Member States may be more illusory than real. Either way, as we don’t currently have answers to any of these questions we’ll be monitoring how this conversation develops, so watch this space.
On 21 May 2013, the European Parliament’s Economic and Monetary Affairs Committee (ECON) published a press release detailing its negotiating position with respect to certain elements of the proposed Recovery and Resolution Directive (RRD).
The negotiation position was approved by 39 votes to 6 and states that:
- the “bail-in” scheme should be operational by January 2016 at the latest;
- insured deposits (i.e. those below EUR 100,000) can never be subject to bail-in;
- uninsured deposits (i.e. those above EUR 100,000), can only be subject to bail-in “as a last resort”;
- funds from deposit guarantee schemes will not be capable of being diverted in order to help pay for bank resolution measures;
- taxpayer money can only be used to guarantee liabilities or assets, take a stake in a failing bank or institute temporary public ownership and only after all capital has been written down to zero and taxpayer intervention is necessary in order to:
- prevent “significant adverse effects on financial stability”; or
- protect the public interest;
- bank-financed resolution funds must be established at a national level and must have a capacity equal to 1.5% of the amount of deposits of the participating banks within 10 years of the entry into force of the RRD; and
- resolution funds will not be obliged to lend to each other.
The press release notes that the EU Council must now adopt its negotiating position, after which trialogue discussions between the Council, the Commission and the Parliament will commence.