An overview of the proposed global measures for bank crisis management and resolution.
During the 2008/2009 financial crisis a number of governments were obliged to take emergency action to stabilise banks. They did so either under existing national regimes or were obliged to enact ad hoc legislation. In either case, there was no international regime which coordinated and facilitated such intervention.
After the financial crisis a number of initiatives were set in train to promote a more globally integrated system for the stabilisation of failed or failing banks. Such initiatives included proposals for the implementation of resolution regimes and for regimes which required banks and systemically important financial institutions to implement and maintain recovery and resolution plans.
Financial Stability Board
The mandate of the Financial Stability Board (FSB) is to promote international financial stability. It does so by coordinating national financial authorities and international standard-setting bodies in the development of regulatory and supervisory policies.
The FSB has played a leading role in recommending changes to regulatory and supervisory policies following the financial crisis. In the context of bank crisis management and resolution, the leading publication remains the Key Attributes of Effective Resolution Regimes for Financial Institutions which was originally issued in October 2011 but which was subsequently updated in October 2014. The FSB has also published a webpage which provides guidance on the implementation of the Key Attributes.
The Key Attributes are the international standard for resolution regimes. They are part of a set of policy measures, endorsed by the G20 in November 2011, designed to address the problem of firms that are "too big to fail".
The aim of the Key Attributes is to make it possible to resolve any financial institution in an orderly manner without severe systemic disruption or exposing taxpayers to the risk of loss, while protecting the firm’s functions that are critical to the financial market or the real economy and ensuring that losses are borne by shareholders and creditors of the failing firm, as they would be in insolvency.
The FSB has issued a series of subsequent reports to supplement the Key Attributes. These include a series of peer reviews which are intended to measure the timely and consistent implementation of the Key Attributes across the FSB jurisdictions. On 18 March 2016, the FSB published its Second Thematic Review on Resolution Regimes whose main findings were that:
- only a subset of jurisdictions currently have a bank resolution regime with a comprehensive set of power broadly in line with the Key Attributes. Those most often lacking are explicit continuity powers, bail-in powers and powers to impose a temporary stay on the exercise of early termination rights
- while resolution regimes generally apply to all types of commercial banks, the coverage of holding companies of banks, branches of foreign banks and material non-regulated operational entities within a financial group is more variable across jurisdictions
- there is significant variation across jurisdictions in the conditions for the use of resolution powers and their level of detail, and
- more progress has been made in terms of putting in place processes for recovery planning, compared to resolution planning or resolvability assessments.
The peer review makes a number of recommendations to address the gaps it identified. It notes that, by December 2016, jurisdictions will report to the FSB on what actions they have taken, or plan to take, in order to address the identified gaps.
On 19 October 2016, the FSB published a methodology for assessing the implementation of the Key Attributes. The Key Attributes Assessment Methodology for the Banking Sector sets out essential criteria to guide the assessment of the compliance of a jurisdiction’s bank resolution framework with the FSB’s Key Attributes. It is designed to promote consistent assessments across jurisdictions and provide guidance to jurisdictions when adopting or reforming bank resolution regimes to implement the Key Attributes.
On 18 August 2016, the FSB published two final guidance papers entitled Guiding Principles on the Temporary Funding Needed to Support the Orderly Resolution of a Global Systemically Important Bank and Guidance on Arrangements to Support Operational Continuity in Resolution. The guidance papers should assist authorities in meeting the resolution planning requirement under the Key Attributes and contribute to the removal of impediments to the orderly and effective resolution of firms. Alongside the guidance papers, the FSB also published its fifth progress report to the G20 entitled Resilience through resolvability – moving from policy design to implementation. The report reviews what has been achieved so far and sets out further actions to fully implement the Key Attributes and ensure that all global systemically important financial institutions (G-SIFIs) are resolvable. It also reports the findings from the second round of the Resolvability Assessment Process (RAP) for global systemically important banks and the initial results from the first RAP for global systemically important insurers. The FSB identified the following priorities for the remainder of 2016 and 2017 to help further advance progress:
- develop further guidance on central counterparty (CCP) resolution, building on the recently published discussion paper on Essential Aspects of CCP Resolution Planning which identifies elements that are considered to be core to the development of effective resolution strategies and plans for CCPs
- finalise the remaining elements of the Total Loss-absorbing Capacity (TLAC) standard, including guidance on the implementation of internal TLAC and final proposals on TLAC holdings and TLAC disclosures
- develop further guidance to support the resolution planning work of authorities and firms, including on ways in which access to financial market infrastructures can be maintained in resolution and on the operational execution of bail-in, and
- develop a Key Attributes assessment methodology for insurers and monitor implementation of the guidance on Developing Effective Resolution Strategies and Plans for Systemically Important Insurers.
On 01 February 2017, the FSB published for consultation draft Guidance on CCP Resolution and Resolution Planning. The draft guidance sets out a framework for resolution of financial market infrastructures and, when finalised, will assist authorities and jurisdictions with implementing effective resolution regimes and developing credible resolution strategies and plans for CCPs. The consultation closed on 13 March 2017.
On 17 March 2017, the FSB published a letter (dated 10 March 2017) from the FSB Chair to the G20 Finance Ministers and Central Bank Governors highlighting the good progress made in implementing the post-crisis reforms, as a result of which the global financial system is moving from a state of fragility to greater resilience.
The Basel Committee is, like the FSB, an international body. It makes recommendations and sets standards for the supervision of banks. It does so primarily in the area of capital standards. Its guidelines have no legal effect in themselves unless and until adopted by national legislatures.
In the context of bank crisis management and resolution, the Basel Committee’s primary emphasis has been to improve the quality of capital held by banks. This is done through the Basel III framework which has two complementary objectives:
- to ensure minimum standards of resilience so that financial firms are less likely to fail, and
- to reduce the impact on the financial system and the economy in case they do. It sets significantly higher requirements for loss absorption and places greater emphasis on higher-quality capital (increasing the quality and level of capital), while better capturing the full scope of risks that banks face (enhancing risk capture).
Key aspects of the framework include a leverage ratio requirement (constraining leverage), capital buffers to mitigate various sources of systemic risk (adding a macroprudential dimension) and a set of standards limiting liquidity and maturity transformation (mitigating liquidity risk).
Like the FSB, the Basel Committee issues updates on the achievement of its objectives. In November 2015, the Basel Committee published a report entitled Finalising post-crisis reforms: an update - A report to G20 Leaders which reviewed the Basel Committee’s work since the global financial crisis in strengthening the international regulatory framework for banks.
The most important legislation in the context of bank crisis management and resolution is The Directive establishing a framework for recovery and resolution of credit institutions and investment firms 2014/59/EU (the BRRD).
The BRRD was published in the Official Journal of the EU on 12 June 2014 and came into force on 02 July 2014. It required member states to adopt and publish implementing legislation and regulations by 31 December 2014. The legislation was required to become effective from 01 January 2015 (with legislation implementing the bail-in tool becoming effective from 01 January 2016 at the latest).
The BRRD provides authorities with a common set of tools and powers for dealing with failing banks, and requires banks to facilitate this process by providing information for recovery and resolution planning purposes as well as meeting resolvability requirements. It contains provisions relating to recovery and resolution planning, intragroup financial support, early intervention, resolution tools and powers, cross-border group resolution, relations with third countries and financing arrangements.
On 02 December 2016, ISDA published the 5th version of its BRRD implementation monitor. The monitor is a useful table showing, on an country by country basis, the implementation of the BRRD throughout the EU.
Powers conferred by the BRRD include the ability for a regulator to write-down and/or convert into equity a failing institution's liabilities (the "bail-in" tool).
On 25 February 2016, the LMA made a submission to the European Commission in which it expressed its concerns about the width of the expression "liabilities" when used in Article 55. The LMA argued that there was little consistency amongst EU regulators as to what the word meant and that the widest interpretation applied by some regulators imposed a disproportionate burden on banks. It also argued that the requirement placed EU firms at a significant competitive disadvantage when compared to non-EU firms. The LMA recommended either:
- amending Article 55 to give resolution authorities the power to exclude certain liabilities, or classes of liabilities, from Article 55, or
- that the European Commission or European Banking Authority should give further guidance on the liabilities covered by Article 55.
For an overview of bail-in, please see our more detailed article entitled Contractual recognition of bail-in: Brexit and other recent developments.
On 02 March 2017, the European Banking Authority (EBA) launched a consultation on its draft Recommendations on the coverage of entities in banking group recovery plans, which is aimed at defining common criteria to identify entities (subsidiaries and branches) that need to be covered in group recovery plans, and the extent of such coverage. Such criteria should help institutions avoid a fragmented approach in providing information in recovery plans, and provide a common guidance for home and host supervisors. The consultation closed on 02 June 2017.
On 08 May 2017, the EBA published a consultation on its proposed draft regulatory technical standards on the criteria listed in Article 4(1) of BRRD for the purposes of determining whether institutions should be subject to simplified obligations in relation to recovery and resolution planning. The consultation closed on 08 August 2017.
On 06 June 2017, the European Parliament published a briefing entitled Amending the bank resolution framework – BRRD and SRMR. The briefing provides an analysis of the proposals so far.
On 05 September 2017, the EBA published its final draft implementing technical standards (ITS) on specifying templates and procedures resolution authorities should follow when informing the EBA of the minimum requirement for own funds and eligible liabilities (MREL) that have been set for institutions under their jurisdiction. These standards will enable the EBA to monitor the consistency of MREL implementation across the EU. The final ITS has been submitted to the European Commission for endorsement.
Finally, there is an evolving body of case law on the recognition by member states of actions taken by resolution authorities in other member states. The guiding principle is that a member state is not bound to recognise resolution actions taken by the resolution authority of another member state if they go beyond the provisions of the BRRD. These issues are considered in our elexica article entitled The Three “Rs” - Recovery, Resolution & Recognition.
The resolution authority for the United Kingdom is the Bank of England and the competent authorities are the PRA and the Financial Conduct Authority.
The overarching legislative framework is created by the Banking Act 2009 (as amended). The Act makes provision for a special resolution regime pursuant to which the Bank of England is granted tools to deal with the failure, or likely failure, of a UK bank or building society.
The special resolution regime created by the Banking Act 2009 has been amended to reflect the requirements of the BRRD (including the requirements of the bail-in tool).
Provision has also been made for certain of those tools to be extended to a wider range of entities including investment firms, recognised central counterparties and certain banking group companies.
On 19 December 2016, the Treasury Select Committee launched an inquiry into recovery and resolution in the first stage of its capital inquiry. Interested parties are invited to submit written evidence to address any or all of the following questions:
- What progress have the major UK banking groups made in developing realistic and effective resolution and recovery plans, including ring-fence arrangements?
- What progress has been made by major foreign economies in developing realistic and effective resolution and recovery plans?
- What impact might Brexit have on the likely effectiveness of the UK’s recovery and resolution regime?
- What assumptions has the FPC made as to the efficacy and feasibility of resolution plans? What are the risks to effective implementation, and how is the probability of non-implementation, non-effectiveness or contagion effects factored in?
- How serious is the risk that falls in the prices of particular bail-inable securities will cause contagious uncertainty about the solvency of banks in general? If there are contagion risks, how could these be reduced?
- Would it be desirable to have more transparency about the resolution and recovery plans of the major UK banks and about the PRA’s and Bank of England’s assessment of them?
The inquiry closed for written submissions on Sunday 05 March 2017. Due to the general election held in the UK on 08 June 2017 the Committee closed this inquiry. Following the dissolution of Parliament on 03 May 2017, all Select Committees cease to exist until after the general election. If an inquiry on this subject is held in the future, the Committee may refer to the evidence already gathered as part of this inquiry.
On 21 June 2017, the PRA launched a consultation proposing a new supervisory statement on recovery planning that would supersede SS18/13 Recovery Planning and sets out additional expectations of firms. This consultation also includes a proposal to clarify the PRA’s expectations on the approach to recovery planning for groups containing a ring-fenced body, through a proposed update to SS8/16 Ring-fenced Bodies. The consultation closed on 21 September 2017.
On 06 April 2017, The Investment Bank (Amendment of Definition) and Special Administration (Amendment) Regulations 2017 will enter into force. These regulations follow an independent review of the special administration regime, undertaken by Peter Bloxham and commissioned by HM Treasury. The Bloxham Final Report was published in January 2014.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.