EU banking and insurance insolvency / edited by Gabriel Moss, QC, Bob Wessels, Matthias Haentjens.
2017
KJE4170 .E9 2017 (Map It)
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Title
EU banking and insurance insolvency / edited by Gabriel Moss, QC, Bob Wessels, Matthias Haentjens.
Published
Oxford, United Kingdom : Oxford University Press, 2017.
Call Number
KJE4170 .E9 2017
Edition
Second edition.
ISBN
9780198759393 (hbk.)
0198759398 (hbk.)
0198759398 (hbk.)
Description
l, 665 pages ; 26 cm
System Control No.
(OCoLC)973400010
Summary
Following the chaotic effects of the global financial crisis on European financial markets, the legislative regime introduced by the European Union (EU) represents a dramatic new approach to bank insolvency law, and will have a profound effect on the way banks function. The second edition of EU Banking and Insurance Insolvency evaluates these important developments and their implications for the Eurozone countries. A comprehensive general introduction sets out the EU insolvency law framework and the principles which govern financial institutions. The book provides detailed commentary on the Bank Recovery and Resolution Directive (BRRD) and Single Resolution Mechanism Regulation (SRMR), the legislative instruments central to the EU's response to the crisis, intended to harmonize Member States law. It considers the new powers given to government authorities under the BRRD to write down shares and debt instruments issued by banks, and the function of the newly created 'Single Resolution Board'. Commentary on the Winding-Up Directive (2001/24/EC) and the Insurance Insolvency Directive (2001/17/EC) discusses the significant changes these statutes have undergone as a consequence of the adoption of the BRRD and SRMR, as well as several high-profile court cases decided on the interpretation of these two statutes, including the Landsbanki and Kaupthing cases, and the Lehman Brothers, Isis Investments, and Heritable Bank cases. This is an invaluable practitioner guide to the new European banking insolvency regime, written by experts in the field.
Note
Following the chaotic effects of the global financial crisis on European financial markets, the legislative regime introduced by the European Union (EU) represents a dramatic new approach to bank insolvency law, and will have a profound effect on the way banks function. The second edition of EU Banking and Insurance Insolvency evaluates these important developments and their implications for the Eurozone countries. A comprehensive general introduction sets out the EU insolvency law framework and the principles which govern financial institutions. The book provides detailed commentary on the Bank Recovery and Resolution Directive (BRRD) and Single Resolution Mechanism Regulation (SRMR), the legislative instruments central to the EU's response to the crisis, intended to harmonize Member States law. It considers the new powers given to government authorities under the BRRD to write down shares and debt instruments issued by banks, and the function of the newly created 'Single Resolution Board'. Commentary on the Winding-Up Directive (2001/24/EC) and the Insurance Insolvency Directive (2001/17/EC) discusses the significant changes these statutes have undergone as a consequence of the adoption of the BRRD and SRMR, as well as several high-profile court cases decided on the interpretation of these two statutes, including the Landsbanki and Kaupthing cases, and the Lehman Brothers, Isis Investments, and Heritable Bank cases. This is an invaluable practitioner guide to the new European banking insolvency regime, written by experts in the field.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Tables of Cases
xxvii
Tables of Legislation
xxix
List of Abbreviations
xliii
Biographies
xlvii
I Introductory Chapters
1.
EU Financial Institution Insolvency Law Framework
3
A.
Introduction
B.
Specialist Treatment of Financial Institutions and Undertakings
1.
Insurance undertakings
2.
Investment undertakings
3.
Collective investment undertakings
C.
Banking Union and Substantive Bank Insolvency Law
1.
Introduction
2.
Banking Union
3.
Single Resolution Mechanism
4.
Single Resolution Board
5.
Single Resolution Fund
6.
ESM and direct recapitalization of financial institutions
7.
Future European bank insolvency law and current problems
D.
Directives Related to the IWUD
E.
Directives Related to the CIWUD
1.
Settlement Finality Directive
2.
Collateral Directive
2.
Principles for Cross-border Financial Institution Insolvencies
29
A.
Some Basic Principles
1.
principle of unity versus the principle of plurality
2.
principle of universality versus the principle of territoriality
3.
principle of single entity versus the principle of separate entity
4.
principle of protection of specific persons
5.
principle of carving out specific 'financial contracts'
6.
principle of equalization or chotchpof
7.
principle of single point of entry versus the principle of multiple point of entry
B.
Key Issues of the CIWUD and Title IV of Solvency II
1.
Goals of the Directives
2.
History of the Directives
3.
short explanation of the visible differences
4.
Scope
5.
Some key definitions
6.
Power of the home country authority
7.
Equal treatment of creditors
8.
Conflict-of-law rules
9.
Protection of certain creditors under the IWUD
10.
carve-outs under the CIWUD
II Commentary On Directive 2001/24/EC On The Reorganisation And Winding Up Of Credit Institutions
3.
Commentary on Directive 2001/24/EC on the Reorganisation and Winding up of Credit Institutions
61
A.
Title I: Scope and Definitions
1.
General
2.
Scope of Directive-'credit institution'
3.
Single entity approach
4.
Groups
5.
Branches in at least two Member States
6.
Coordination
7.
Non-EU banking group with one branch in Member State
8.
Territorial scope
B.
Title II: Reorganisation Measures
1.
Information obligation of home Member State
2.
Information obligation of host Member State
3.
Need for publication
4.
Location of rules about publication
5.
Obligation to publish
6.
Information to be provided
7.
Location of rules
8.
Obligation to inform
9.
Scope
10.
Rule of interpretation
11.
Obligation to inform
12.
Branches in more than one Member State
C.
Title III: Winding-up Proceedings
1.
Application of Articles 9 to 18
2.
Three norms
3.
Recognition
4.
Law applicable
5.
Exceptions
D.
Title IV: Provisions Common to Reorganisation Measures and Winding-up Proceedings
2.
Division and interpretation of the exceptions
3.
Employment contracts
4.
Immovables
5.
Rights subject to registration
E.
Title V: Final Provisions
III Commentary On Title IV Of Directive 2009/138/EC On The Taking Up And Pursuit Of The Business Of Insurance And Reinsurance (Solvency II)
4.
Commentary on Title IV of Directive 2009/138/EC on the Taking up and Pursuit of the Business of Insurance and Reinsurance (Solvency II)
121
B.
Title IV, Chapter I: Scope and Definitions
1.
General principles
2.
Insurance undertakings
3.
Reinsurance
4.
Groups of companies
5.
Reorganisation measures
6.
Winding-up proceedings
C.
Title IV, Chapter II: Reorganisation Measures
1.
Requirement of publicity
2.
Form of publicity
D.
Title IV, Chapter III: Winding-up Proceedings
E.
Title IV, Chapter IV: Common Provisions
IV Selected Commentary On The Bank Recovery And Resolution Directive
5.
Title I: Scope, Definitions, and Authorities
177
B.
Article 1-Subject Matter and Scope
2.
Scope of Directive-(a) institutions that are established in the Union
3.
Scope of Directive-(b) subsidiaries
4.
Scope of Directive-(c) and (d) holding companies
5.
Scope of Directive-(e) branches of non-EU institutions
6.
Proportionality
7.
Minimum harmonization
C.
Article 2-Definitions
2.
Resolution
3.
Credit institution
4.
Investment firm
5.
Financial institution
6.
Subsidiary
7.
Parent undertaking
8.
Consolidated basis
9.
Financial holding company
10.
Mixed financial holding company
11.
Mixed-activity holding company
12.
Parent financial holding company in a Member State
13.
Union parent financial holding company
14.
Parent mixed financial holding company in a Member State
15.
Union parent mixed financial holding company
16.
Branch
17.
Institution
18.
Group
D.
Article 3-Authorities
2.
Resolution authorities
3.
Resolution authorities and competent authorities
4.
Resolution authorities and competent ministries
6.
Titles II and III: Preparation and Early Intervention
195
A.
Title II: Preparation
2.
Proportionality: Article 4
3.
Recovery plans: Articles 5-9
4.
Recovery plans-Groups
5.
Resolution planning: Articles 10-14
6.
Resolvability: Articles 15-18
7.
Resolvability-powers: Article 17
8.
Intra group financial support: Articles 19-26
B.
Title III: Early Intervention
2.
Removal of management and temporary administrator- Articles 28-29
7.
Title IV: Resolution
219
A.
Chapter I: Objectives, Conditions and General Principles
2.
Resolution objectives: Article 31
3.
Resolution conditions: Articles 32-33
4.
Resolution principles: Article 34
B.
Chapter II: Special Management
1.
Special manager: Article 35
C.
Chapter III: Valuation
1.
Valuation: Article 36
D.
Chapter IV: Resolution Tools
2.
General resolution tool principles: Article 37
3.
Sale of business tool: Articles 38-39
4.
Bridge institution tool: Articles 40-41
5.
Asset separation tool: Article 42
6.
Bail-in tool: Articles 43-55
7.
MREL: Article 45
8.
Assessment of amount of bail-in: Article 46
9.
Treatment of shareholders: Article 47
10.
Sequence of write-down and conversion: Article 48
11.
Derivatives: Article 49
12.
Conversion rate: Article 50
13.
Business reorganisation plan: Articles 51-52
14.
Effect of bail-in and removal of procedural requirements: Articles 53-54
15.
Contractual recognition of bail-in: Article 55
16.
Government stabilization tools: Articles 56-58
E.
Chapter V: Write-down of Capital Instruments
1.
Write-down of capital instruments: Articles 59-62
F.
Chapter VI: Resolution Powers
1.
Introduction: Articles 63-65
2.
Resolution and other Member States and third countries: Article 66-67
3.
Provisions on contract law: Articles 68-72
4.
Permanent disapplication of contractual rights: Article 68
5.
Temporary disapplication of contractual rights: Articles 69-71
6.
Exercise of the resolution powers: Article 72
G.
Chapter VII: Safeguards
2.
No Creditor Worse Off: Articles 73-75
3.
Partial transfers: Articles 76-80
H.
Chapter VIII: Procedural Obligations
2.
Notification requirements: Articles 81 and 83
3.
Decisions: Article 82
4.
Confidentiality: Article 84
I.
Chapter IX: Right of Appeal and Exclusion of Other Actions
1.
Right of appeal: Article 85
2.
Restrictions on other proceedings: Article 86
8.
Titles V and VI: Cross-border Group Resolution and Third Countries
285
A.
Title V: Cross-border Group Resolution
1.
Scope
2.
General principles: Article 87
3.
Resolution colleges: Articles 88-89
4.
Information exchange: Article 90
5.
Group resolution: Articles 91-92
B.
Title VI: Third Countries
2.
Agreements: Article 93
3.
(Non-)recognition: Articles 94-95
4.
Resolution of Union branches: Article 96
5.
Cooperation and information: Articles 97-98
9.
Titles VII and VIII: Financing Arrangements and Penalties
303
A.
Title VII: Financing Arrangements
2.
National financing arrangements: Articles 100-103
3.
Funding waterfall: Articles 104-107
4.
Priority ranking in insolvency: Article 108
5.
Deposit guarantee schemes in resolution: Article 109
B.
Title VIII: Penalties
1.
Penalties: Articles 110-114
V National Implementation In The EU
10.
France
321
A.
Overview
B.
Implementation of the Bank Recovery and Resolution Directive
1.
Law on the Separation and Regulation of Banking Activities of 26 July 2013
2.
Banking Recovery and Resolution Directive Transposition Order of 20 August 2015
C.
Implementation of the Insurance Directive
1.
Safeguarding and rehabilitation measures
2.
Portfolio transfer
3.
Withdrawal of the ACPR authorization
4.
Winding-up proceedings
D.
Conclusion
11.
Germany
329
B.
Implementation of the Credit Institutions Directive (as Amended)
C.
Implementation of the Insurance Directive (as Amended by the Solvency II Directive)
D.
Implementation of the BRRD and the SRM Regulation
E.
Conclusion
12.
Iceland
337
B.
Credit Institutions
1.
Special rules on the winding up of credit institutions
2.
Emergency Act
3.
November 2008 Amendment
4.
Current rules on winding up of credit institutions
5.
Case law on the Winding-up Directive
6.
Deposit guarantee schemes
C.
Insurance Companies
D.
Implementation of the Bank Recovery and Resolution Directive
13.
Ireland
349
1.
country's banking and insurance industry
2.
Legislative/statutory context
B.
Implementation of the Credit Institutions Directive: The European Communities (Reorganisation and Winding-up of Credit Institutions) Regulations 2011
1.
Reorganisation measures
2.
Winding-up proceedings
3.
Provisions common to reorganisation measures and winding-up proceedings
C.
Implementation of the Insurance Directive: The European Union (Insurance and Reinsurance) Regulations 2015
3.
General provisions
D.
Implementation of the Bank Recovery and Resolution Directive/Single Resolution Mechanism Regulation: The European Union (Bank Recovery and Resolution) Regulations 2015
1.
Recovery and resolution plans
2.
Early intervention
3.
Resolution
4.
Financing arrangements
5.
Single Resolution Mechanism
14.
Spain
365
B.
Implementation of the Credit Institutions Directive
C.
Implementation of the Bank Recovery and Resolution Directive
D.
Implementation of the Insurance Directive
15.
United Kingdom
375
1.
UK banking and insurance industry
2.
Credit Institutions Directive
3.
Insurance Directive
4.
Bank Recovery and Resolution Directive and Single Resolution Mechanism Regulation
D.
Implementation of the Bank Recovery and Resolution Directive and Operation of the Single Resolution Mechanism Regulation
Appendices
Appendix 1: Directive 2001/24/EC of the European Parliament and of the Council of 4April2001 on the reorganisation and winding up of credit institutions
385
Appendix 2: Title IV of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II)
399
Appendix 3: Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing & framework for the recovery and resolution of credit institutions and investment (BRRD)
409
Appendix 4: Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 [ect.]
543
Index
631