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Contingent Capital in European Union Bank Restructuring
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Mississippi College SCHOOL OF LAW
**Legal Studies Research Paper No. 2013-02**
**Contingent Capital in European Union Bank Restructuring Christoph Henkel Mississippi College School of Law**
**Wulf A. Kaal Univ. of St. Thomas (MN) School of Law**
This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: <u>http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2061166</u>
# **Contingent Capital in European Union Bank Restructuring**
## **_Christoph K. Henkel_**<sup>**_*_**</sup> **_and Wulf A. Kaal_**<sup>**_**_**</sup>
_Abstract: The uncoordinated reorganization and resolution of Systemically Important Financial Institutions in different countries pose many challenges. Contingent capital provides a viable alternative for the efficient restructuring and resolution of failing financial institutions. Contingent Capital provides a mechanism for internalizing banks’ failure costs and helps return distressed financial institutions to solvency. This article offers a comparative perspective on bank resolution and restructuring in the European Union, Switzerland, the United Kingdom and Germany and shows that Contingent Capital could play a substantial role in bank restructuring._
### <u>TABLE OF CONTENTS</u>
|I.|Introduction .....................................................................................192|
|---|---|
|II.|International Mitigation Initiatives, Resolution Tools and<br>Frameworks .....................................................................................197|
|III.|European Bank Recovery and Resolution .......................................201|
||A. European Union Initiatives ........................................................202|
||B. Long-Term Initiatives of the European Union ..........................203|
||1. The European System of Financial Supervisors .................204|
||2. Proposed Framework for Crisis Management ....................209|
||3. Revisions of the Capital Requirements Directives .............213|
||C. National Initiatives in Europe ....................................................217|
||1. Bank Reorganization under Swiss Law ..............................217|
||2. The British Banking Act of 2009 ........................................218|
||3. The German Banking Reorganization Act of 2010 ............221|
> * Associate Professor and Director of the International and Comparative Law Center, Mississippi College School of Law. Assessor iur., LL.M., S.J.D., University of Wisconsin Law School. The author would like to acknowledge the support provided by Mississippi College School of Law on this project and thank Ms. Laura Dugas and Caroline Kunz Ivanov for their outstanding research assistance. The completion of this project would not have been possible without their help and dedication.
> ** Associate Professor, University of Saint Thomas School of Law (Minneapolis). Ph.D., Humboldt Universität zu Berlin; LL.M., J.D., University of Illinois College of Law; M.B.A., Finance, Durham University. The author wishes to acknowledge the assistance of his colleague, Christian Kirchner, and the participants of the 8<sup>th</sup> Annual Northwestern Journal of International Law & Business Symposium. He is also grateful for research assistance from Katherine Eckberg.
## **Northwestern Journal of International Law & Business** 32:191 (2012)
|IV.|Contingent Capital in Bank Restructuring ......................................240|
|---|---|
||A. European Commission Proposal ...............................................243|
||B. Basel Committee Proposal ........................................................247|
||C. Swiss Approach .........................................................................248|
||D. The English Proposals ...............................................................249|
||E. German Draft Amendments to the Corporation Act ..................250|
|V.|Contingent Capital Design—Triggering Event ...............................251|
||A. Trigger Events – Uncertainty – Market Development ..............253|
||B. Timing Trigger Events ..............................................................255|
||C. Dual Triggers in Going and Gone Concern ...............................256|
|VI.|Contingent Capital as a Preventative Tool in European Union<br>Bank Restructuring ..........................................................................258|
|VII.|Convergence ....................................................................................260|
|VIII.|Conclusion .......................................................................................262|
# I. INTRODUCTION
At the height of the financial crisis, many countries saw no alternative to bailing out some of their most prominent financial institutions.<sup>1</sup> Governments perceived the winding down of banks through the national channels of insolvency as the least favorable course of action.<sup>2</sup> Defaulting to insolvency could have further deteriorated market confidence in the affected financial institutions and could have triggered bank runs<sup>3</sup> and panic in financial markets.<sup>4</sup> Some countries had no statutory regime to deal with bank failures or lacked a regulatory basis for public bail-outs.<sup>5</sup> To address these shortcomings, many countries hastily enacted laws<sup>6</sup> without regard to
> 1 DAVID SKEEL, THE NEW FINANCIAL DEAL – UNDERSTANDING THE DODD-FRANK ACT AND ITS (UNINTENDED) CONSEQUENCES 19–40 (2011); Wulf A. Kaal & Richard W. Painter, _Initial Reflections on an Evolving Standard: Constraints on Risk Taking by Directors and Officers Liability for Taking Excessive Risk in Germany and the United States_ , 40 SETON HALL L. REV. 1433 (2010).
> 2 _See, e.g._ , Gunnar Schuster & Lars Westpfahl, Neue Wege Zur Banksanierung – Ein Beitrag zum Restrukturierungsgesetz (Teil I), Der Betrieb, DB 2011, 221. _Contra_ SKEEL, _supra_ note 1, at 158–73 (arguing that reliance on insolvency regimes would have been preferable). Also, the availability of public bail-out money may have removed the threat of losses, which made insolvency a theoretical threat at best.
> 3 _See, e.g._ , Marianne Barriaux, _Market Forces: Banking Sector Hit by Northern Rock Fallout_ , GUARDIAN, Sept. 14, 2007, (Guardian Financial Pages), at 40.
> 4 James B. Thomson, _On Systemically Important Financial Institutions And Progressive Systemic Mitigation_ , 8 DEPAUL BUS. & COM. L.J. 135 (2010).
> 5 _See infra_ note 257 and accompanying text.
> 6 U.S. Scholars have referred to recent regulatory measures such as Sarbanes Oxley and the Dodd-Frank Act as Quack Corporate Governance. _See_ Roberta Romano, _The SarbanesOxley Act and the Making of Quack Corporate Governance_ , 114 YALE L.J. 1521 (2005); Stephen M. Bainbridge, _Dodd–Frank: Quack Federal Corporate Governance Round II_ , 95
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# international commitments, consistency, and coordination.<sup>7</sup>
Policy makers and legislators across the globe agree that avoiding a repeat of the financial crisis is one of the most important legislative objectives.<sup>8</sup> The United States Congress enacted The Dodd-Frank Act,<sup>9</sup> and the European Commission proposed various regulatory schemes to address many of these problems.<sup>10</sup> A primary focus of these initiatives involved the
MINN. L. REV. 1779 (2010–11).
> 7 _See_ Grp. of Twenty [G20], _The London Summit: Leaders’ Statement_ , ¶ 2 (April 2, 2009), _available at_ http://www.wcoomd.org/files/1.%20Public%20files/PDFandDocuments/ Highlights/G20_Final_London_Communique.pdf (G20 London Summit); G20, _Declaration on the Strengthening the Financial System_ (April 2, 2009), _available at_ http://www.mofa.go.jp/policy/economy/g20_summit/2009-1/annex2.html (G20 London Summit) [hereinafter G20 London]; Thorsten Höche, _Das Restrukturierungsgesetz – Neue Wege in der Bankenaufsicht (mit Seitenblicken auf die Schweiz und das Vereinigte Königreich)_ [The Restructuring Act _–_ New Ways of Banking Supervision (with side views of Switzerland and the United Kingdom)]; WERTPAPIER-MITTEILUNGEN: ZEITSCHRIFT FÜR WIRTSCHAFTS UND BANKRECHT 49 (2011) (Ger.); _see_ Hans-Jürgen A. Fezerabend, Stephan Behnes, & Marcus Helios, Einleitung zum Restrukturierungsgesetz, Der Betrieb, DB 2011, Supplement No. 4, 5 (explaining the German enactment of various emergency acts following the Hypo Real failure in Germany).
> 8 For example, during a press conference introducing the European Commission’s latest proposal to revise capital requirements for European banks, the Internal Market Commissioner Michel Barnier said: “The financial crisis has hit European families and businesses hard. We cannot let such a crisis occur again and we cannot allow the actions of a few in the financial world to jeopardize our prosperity.” Press Release, European Comm’n, Commission Wants Stronger and More Responsible Banks in Europe IP/11/915 (Jul 20, 2011) (on file with Europa), _available at_ http://europa.eu/rapid/pressReleasesAction.do? reference= IP/11/915&format=HTML&aged0&language=en&guiLanguage=en [hereinafter IP/11/915]. On a more global level, the G20 Summit Leaders conveyed a commitment to address the crisis through international cooperation and harmonization expressing a similar sentiment at the end of the G20 Summit in Pittsburgh in 2009. The Leaders’ Statement notes that the G20 members agree “we should develop resolution tools and frameworks for the effective resolution of financial groups to help mitigate the disruption of financial institution failures and reduce moral hazard in the future.” G20, _Leaders’ Statement: The Pittsburgh Summit_ , ¶ 13 (Sept. 24–25, 2009), _available at_ http://ec.europa.eu/commission_20102014/president/pdf/statement_ 20090826_en_2.pdf.
> 9 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), Pub. L. No. 111-203, §§ 201–17, 124 Stat. 1376, 1442–1520 (2010).
> 10 DG Internal Mkt. and Serv., _Technical Details of a Possible EU Framework for Bank Recovery and Resolution_ 7–10, (unpublished working document), _available at_ http://ec.europa.eu/internal_market/consultations/docs/2011/crisis_management/consultation _paper_en.pdf [hereinafter DG Working Document]; _Commission Proposal for a Regulation of the European Parliament and of the Council on Prudential Requirements for Credit Institutions and Investment Firms_ , at 10, COM (2011) 452 final (July 20, 2011) [hereinafter CRD IV Regulation]; _Commission Proposal for a Directive of the European Parliament and the Council on the Access to the Activity of Credit Institutions and Investment Firms and Amending Directive 2002/87/EC of the European Parliament and of the Council on the Supplementary Supervision of Credit Institutions, Insurance Undertakings and Investment Firms in a Financial Conglomerate_ , COM (2011) 453 final (July 20, 2011) [hereinafter CRD IV Directive].
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establishment of a supervisory regime for more efficient regulatory oversight,<sup>11</sup> early intervention, and early resolution to minimize the risk of contagion and to protect public funds.<sup>12</sup> Germany revised a substantial portion of its banking laws.<sup>13</sup> Spain changed its regulatory scheme for orderly bank restructuring.<sup>14</sup> Many other European countries including the United Kingdom<sup>15</sup> and Switzerland similarly adjusted their laws.<sup>16</sup>
At the international level, the focus of cooperation shifted from corporate governance reform in a general sense toward reform of systemically important financial institutions (SIFIs).<sup>17</sup> In light of this shift in international cooperation and given the trend toward diverging national rules, regulatory arbitrage could become a risk for the competitiveness and stability of financial markets. This could especially hold true if countries cannot achieve a minimal level of convergence of international banking resolution and restructuring regimes.<sup>18</sup> The European Commission has recognized the threat of regulatory arbitrage and conducted an impact assessment of harmonization in the context of revisions to the capital requirements for banks.<sup>19</sup> The Commission concluded that maximum harmonization with some exceptions would allow the European Union to reduce compliance burdens, ensure a level playing field, create legal certainty, and achieve supervisory convergence.<sup>20</sup>
Convergence could be especially important for resolution regimes. The uncoordinated reorganization and resolution of SIFIs, subject to multiple resolution regimes in different countries, could undermine their
> 11 _See, e.g._ , _Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the European Central Bank_ , COM (2010) 579 final (Nov. 20, 2010) [hereinafter COM (2010) 579 final]; s _ee also infra_ Part II.
> 12 DG Working Document, _supra_ note 10; _see also_ Dodd-Frank Act, Pub. L. No. 111203, 124 Stat. 1376.
> 13 _See infra_ note 296 and accompanying text.
> 14 B.O.E. 2009, 155 (Spain), _amended by_ B.O.E. 2011, 43 (Spain).
> 15 INDEP. COMM’N ON BANKING, INTERIM REPORT CONSULTATION ON REFORM OPTIONS, INTERMIN REPORT, 2011, at 1 (U.K.).
> 16 See Westpfahl, _infra_ note 243 and accompanying text.
> 17 _See infra_ note 63 and accompanying text; _see, e.g._ , Höche, _supra_ note 7.
> 18 Peter Spiegel, _EU warns US to speed up bank reform_ , FIN. TIMES, June 1, 2011, http://www.ft.com/intl/cms/s/0/cc0e7382-8bcb-11e0-854c-00144feab49a.html#axzz1a VbBDBPq. The European Union Internal Market Commissioner Michel Barnier has even gone so far as to accuse the United States of “leav[ing] too much latitude for financial institutions,” allowing financial institutions to “circumvent globally-agreed principles.” _Id._ In his letter to Treasury Secretary Geithner, Commissioner Barnier also called upon the United States to limit bonuses and pension payments for U.S. bankers, which he believes is essential to limiting incentives for U.S. headquartered bank executives to continue to take excessive risk. _Id._
> 19 CRD IV Regulation, _supra_ note 10, at 5.
> 20 _Id._
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operation as a conglomerate and going concern. Without coordination and convergence, it is possible that a SIFI with operations in multiple countries could petition for reorganization under German law, for instance, and emerge as a more competitive and leaner business while the same SIFI in the United States may be liquidated under the Boxer Amendment of the Dodd-Frank Act.<sup>21</sup> The European Commission’s objective of creating maximum harmonization through a global “single rule book”<sup>22</sup> may not be feasible. However, setting up a legal framework for private ordering in the context of contingent capital<sup>23</sup> could provide an adequate level of convergence and at least help ensure a level playing field.
Contingent capital is the predefined conversion of a financial institution’s debt securities into equity securities.<sup>24</sup> Contingent capital provides an option for the efficient restructuring and resolution of failing financial institutions. It could enable a SIFI to return to solvency, prevent financial contagion, and maintain overall financial stability.<sup>25</sup> It could offer an efficient mechanism for reorganizing SIFIs in jurisdictions that focus merely on liquidation rather than reorganization.<sup>26</sup>
Recent developments in Europe suggest that contingent capital will play a prominent role as part of capital requirements for banks in
> 21 Dodd-Frank Act, Pub. L. No. 111-203, § 214, 124 Stat. 1376, 1442–1520 (2010).
> 22 _Commission Staff Working Paper, Impact Assessment_ , at 5, SEC (2011) 949 final (July 20, 2011), _available at_ http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011: 0949:FIN:EN:PDF.
> 23 _See, e.g._ , BUNDESGESETZ ÜBER DIE BANKEN UND SPARKASSEN [BANKG] [FEDERAL LAW ON BANKS, SAVING AND LOANS] Nov. 8, 1934, SR 952, art. 9(d) (Switz.), _available at_ http://www.admin.ch/ch/d/sr/9/952.0.de.pdf; _see also supra_ art. 9, 11, 13.
> 24 For purposes of this article, the term “contingent capital” or “contingent capital securities” (CCS) will be used. Another name for the same concept is contingent convertibles (short CoCos). _Contingent Capital: CoCo Nuts_ , ECONOMIST, Nov. 5, 2009, http://www. economist.com/node/ 14816673?story_id=14816673; Squam Lake Working Grp. on Fin. Regulation, _An Expedited Resolution Mechanism for Distressed Financial Firms: Regulatory Hybrid Securities,_ 2 (Council on Foreign Relations: Center for Geoeconomic Studies, Working Paper, 2009); MARK J. FLANNERY, STABILIZING LARGE FINANCIAL INSTITUTIONS WITH CONTINGENT CAPITAL CERTIFICATES (2009); Julie Dickson, Superintendant, Fin. Inst. Can., Remarks at Financial Services Invitational Forum, Economic and Financial Turmoil: Are There Lesson for Boards? (May 6, 2010).
> 25 DG Working Document, _supra_ note 10, at Annex I.
> 26 It is important to note, however, that while contingent capital may help stabilize large financial firms, it may not help to avoid an economic crisis in every case. _See_ FLANNERY, _supra_ note 24; John C. Coffee, _Systemic Risk after Dodd-Frank: Contingent Capital and the Need for Regulatory Strategies Beyond Oversight_ , 111 COLUM. L. REV. 795, 833 (2011) (“If a firm’s variable costs clearly exceed its revenues, and no turnaround is in sight, the firm will not be saved by converting its bonds into preferred stock. . . . [R]esolution authority provides the superior mechanism for its liquidation. Thus, the boundaries within which contingent capital can feasibly work are set by the firm’s ability to recover its variable costs.”).
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Switzerland<sup>27</sup> and throughout the European Union.<sup>28</sup> The European Commission has proposed various models of contingent capital and broadly distinguished between a comprehensive and targeted approach as a writedown tool allowing restructuring and resolution of financial institutions.<sup>29</sup> The targeted approach provides a tool for the write down and conversion of financial institutions’ liabilities. The targeted approach could provide resolution authorities with additional flexibility if a failing institution cannot be wound up under the respective national insolvency regime.<sup>30</sup>
The European Commission promulgated a new approach in a directive<sup>31</sup> and regulation<sup>32</sup> proposal implementing Basel III and revising the capital requirement rules in the European Union. The Commission recognizes contingent capital as a so-called “Additional Tier 1 instrument,”<sup>33</sup> subject to full and permanent write down at the point of nonviability.<sup>34</sup> The European Union-wide recognition of contingent capital as Tier 1 capital may further incentivize national governments to promulgate contingent capital standards. The Commission proposal leaves sufficient discretion for national legislators to implement their own contingent capital standards. The German government has proposed a change to the German Corporation Act to implement provisions for contingent capital.<sup>35</sup> The Swiss and English legislators have taken similar approaches. In the United States, the Dodd-Frank Act mandates a study on the feasibility of contingent capital.<sup>36</sup>
> 27 _See, e.g._ , BUNDESGESETZ ÜBER DIE BANKEN UND SPARKASSEN [BANKG] [FEDERAL LAW ON BANKS, SAVING AND LOANS] Nov. 8, 1934, SR 952, art. 9(d) (Switz.), _available at_ http://www.admin.ch/ch/d/sr/9/952.0.de.pdf; Press Release, Fed. Dep’t of Fin., Strengthening Financial Sector Stability (too big to fail) (July 12, 2011), http://www.efd.admin. ch/dokumentation/zahlen/00579/00607/02255/index.html?lang=en
[hereinafter Fed. Dep’t of Fin. Press Release].
> 28 _See_ DG Working Document, _supra_ note 10; _see_ CRD IV Regulation, _supra_ note 10; _see_ CRD IV Directive, _supra_ note 10.
> 29 DG Working Document, _supra_ note 10 _,_ at 87–89.
> 30 _Id._ at 86.
> 31 CRD IV Directive, _supra_ note 10.
> 32 CRD IV Regulation, _supra_ note 10.
> 33 _Id._ art. 49(1)(n).
> 34 _Id._ at 20 (“(27) In line with the decision of the BCBS [the Basel Committee on Banking Supervision], as endorsed by the GHOS [Central Bank Governors and Heads of Supervision] on 10 January 2011, all Additional Tier 1 and Tier 2 instruments of an institution should be fully and permanently written down or converted fully into Common Equity Tier 1 capital at the point of non-viability of the institution.”).
> 35 Referentenentwurf des Bundesministeriums der Justiz, Gesetz zur Änderung des Aktiengesetzes, _available at_ http://www2.nwb.de/portal/content/ir/downloads/217907/RefE_ Aktienrechtsnovelle_2011.pdf?referrer=www.google.com (April 14, 2011).
> 36 Dodd-Frank Act, Pub. L. No. 111-203, § 115, 124 Stat. 1376, 1404 (2010).
(c) CONTINGENT CAPITAL.— (1) STUDY REQUIRED.—The Council shall conduct a study of the feasibility, benefits, costs, and structure of a contingent
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This article provides an overview of regulatory proposals for the restructuring of financial institutions and explains the role contingent capital may play in this context. We point out pertinent issues that require resolution before regulatory proposals may be implemented. We also suggest possible approaches for some of the open issues by providing a comparative perspective of the European Union and national approaches. The first part of this article briefly examines international initiatives on the subject of bank recovery and resolution. The second part reviews the actions taken by the European Union and national legislators in Switzerland, the United Kingdom, and Germany. The third part discusses contingent capital in European bank restructuring. The fourth part evaluates contingent capital as both a preventative tool in European bank restructuring and as a part of bank recovery and resolution. In the final part, we consider triggers and other design features of contingent capital, identify problems, and suggest possible solutions. We emphasize the possible role of international convergence.
# II. INTERNATIONAL MITIGATION INITIATIVES, RESOLUTION TOOLS AND FRAMEWORKS
The discussion of the European approach to bank recovery and resolution would not be complete without considering some of the international initiatives taken since the financial crisis. As in most countries affected by the financial crisis, European nations first attempted to deal with the results of the crisis at national levels. However, as many bank failures, such as Lehman Brothers,<sup>37</sup> Fortis,<sup>38</sup> Icelandic banks,<sup>39</sup> Northern
capital requirement for nonbank financial companies supervised by the Board of Governors and bank holding companies described in subsection (a), which study shall include—
(A) an evaluation of the degree to which such requirement would enhance the safety and soundness of companies subject to the requirement, promote the financial stability of the United States, and reduce risks to United States taxpayers;
(B) an evaluation of the characteristics and amounts of contingent capital that should be required;
(C) an analysis of potential prudential standards that should be used to determine whether the contingent capital of a company would be converted to equity in times of financial stress;
(D) an evaluation of the costs to companies, the effects on the structure and operation of credit and other financial markets, and other economic effects of requiring contingent capital;
(E) an evaluation of the effects of such requirement on the international competitiveness of companies subject to the requirement and the prospects for international coordination in establishing such requirement; and
(F) recommendations for implementing regulations.
_Id._
> 37 _US Banking Crisis Financiers Have Put the World at Risk_ , HERALD (Glasgow), Sept.
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Rock,<sup>40</sup> or Hypo Real Estate Holding<sup>41</sup> have demonstrated, national measures proved ineffective and failed to address cross-border banking operations or contagion.<sup>42</sup> In addition, national measures varied greatly.<sup>43</sup> Most national measures took the form of public bail-outs without broad international consensus,<sup>44</sup> thereby increasing the threat of international regulatory arbitrage as well as negatively impacting the global competitiveness of national financial markets.<sup>45</sup>
The 2009 G20 Summits in London<sup>46</sup> and Pittsburgh<sup>47</sup> were the first international response with the goal of coordinating policy actions at an international level. Following the G20 Summit, the third Basel Accord established the Basel III requirements.<sup>48</sup> Since the 2010 G20 Summit in Seoul, the international focus has shifted toward addressing the risk that
16, 2008, at 14.
> 38 Ian Traynor, _Belgium Acts to Prevent Financial Group’s Collapse: Governments Agree to Pour Euros 11bn into Fortis_ , GUARDIAN, Sept. 29, 2008, (Guardian Financial Pages), at 26.
> 39 Yves Smith, _The first casualty of the crisis: Iceland_ , NAKED CAPITALISM (Nov. 12, 2008), www.nakedcapitalism.com/2008/11/first-casualty-of-crisis-iceland.html.
> 40 Marianne Barriaux, _Market Forces: Banking Sector Hit by Northern Rock Fallout_ , GUARDIAN, Sept. 15, 2007, (Guardian Financial Pages), at 40.
> 41 Carter Dougherty et al., _Financial Crises Spread in Europe_ , N.Y. TIMES _,_ Oct. 6, 2008, at A1.
> 42 DG Working Document, _supra_ note 10.
> 43 During the crisis many countries introduced emergency laws to establish some existing legal basis for state aid to national and global systemically important financial institutions. See, e.g., the approach taken in Germany by enacting the Financial Market Stabilization Law _,_ Finanzmarktstabilisierungsgesetz [FMStG], Oct. 17, 2008, BGBL. I at 1982; The Amended Financial Market Stabilization Law, Finanzmarktstabilisierungsergänzungsgesetz [FMStErgG], Apr. 7, 2009, BGBL. I at 725; Law to Improve the Financial Market and Insurance Regulatory Authority, Gesetz zur Stärkung der Finanzmarkt und der Versicherungsaufsicht [FMVAStärkG], July 29, 2009, BGBL. I at 2305.
> 44 Sharon E. Foster, _Too Big to Fail, Too Small to Compete: Systemic Risk Should be Addressed Through Antitrust Law_ , 22 FLA. J. INT’L L. 31, 33, 49 (2010).
> 45 In the European Union, until the fall of 2010, state aid to support banks amounted to as much as 13% GDP. _See_ Press Release, European Comm’n, An EU Framework for Crisis Management in the Financial Sector, Memo/10/506 (Oct. 20, 2010), _available at_ http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/506&format=HTML& aged=0&language=EN&guiLanguage=en.
> 46 _See_ G20 London, _supra_ note 7; _see_ Höche, _supra_ note 7; _see_ Fezerabend et al., _supra_ note 7.
> 47 G20, Pittsburgh Summit on Financial Markets and the World Economy (Sept. 15, 2009) [hereinafter Pittsburgh Summit]. In Pittsburgh, the leaders agreed that they “should develop resolution tools and frameworks for the effective resolution of financial groups to help mitigate the disruption of financial institution failures and reduce moral hazard in the future.” Pittsburgh Summit, _supra_ , ¶ 13.
> 48 Bank for Int’l Settlements [BIS], Basel Comm. on Banking Supervision, Consultative Document: Basel III: A Global Regulatory Framework for More Resilient Banks & Banking Systems, (Dec. 2010, rev. June 2011) [hereinafter BIS III].
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SIFIs pose to global financial markets.
At the London and Pittsburgh Summit the leaders of the G20 also charged the Financial Stability Board (FSB)<sup>49</sup> with presenting recommendations for the development of this framework.<sup>50</sup> The FSB submitted its first major report to the G20 in the fall of 2010<sup>51</sup> and recommended the implementation of internationally consistent bank capital and liquidity standards based on the third Basel Accord.<sup>52</sup> The FSB further proposed the increase of supervision and regulatory measures to deal with SIFIs. As part of a new regulatory regime, the FSB also suggested the requirement of higher loss absorbency measures for SIFIs that reflect the higher risk that these financial institutions might pose to the global financial system.<sup>53</sup> Finally, the FSB report addressed a needed reform of the OTC derivative markets<sup>54</sup> and proposed the general increase in supervisory intensity and effectiveness of all financial markets.<sup>55</sup>
The G20 leaders followed the FSB recommendations and endorsed the Basel III requirements at the Seoul Summit in November 2010.<sup>56</sup> All G20 members have since agreed to implement Basel III. The goal is to implement national legislation by January 1, 2013, with an enforcement date of January 1, 2019.<sup>57</sup> Basel III introduces new capital and liquidity standards and applies to all G20 banks.<sup>58</sup> Basel III specifically attempts to prevent banks from using off-balance sheet vehicles and risk weighting
> 49 Financial Stability Board [FSB], http://www.financialstabilityboard.org/. The Financial Stability Board is an international body that has been established to coordinate the work of national financial authorities and international standard setting bodies. The FSB develops and promotes the implementation of effective regulatory and supervisory policies for the financial sector. Members of the FSB are national regulatory authorities, national and international financial institutions, associations, committees, and experts in the financial sector. For a list of members, see http://www.financialstabilityboard.org/members/links.htm _._
> 50 Pittsburgh Summit, _supra_ note 47, ¶ 13.
> 51 Fin. Stability Bd., _Progress Since the Washington Summit in the Implementation of the G20 Recommendations for Strengthening Financial Stability: Report of the Financial Stability Board to G20 Leaders_ , (Nov. 8, 2010), 1–12, http://www.financialstabilityboard. org/ publications/r_101111b.pdf.
> 52 _Id._ at 3–5.
> 53 _Id._ at 6–7.
> 54 _Id._ at 12–15.
> 55 _Id._ at 15–20.
> 56 Grp. Of Twenty [G20], Leaders’ Declaration: The Seoul Summit, at ¶ 13 (Nov. 11–12, 2010), available at http://www.g20.org/Documents2010/11/seoulsummit_declaration.pdf [hereinafter G20 Seoul Summit].
> 57 _Progress in the Implementation of the G20 Recommendations for Strengthening Financial Stability: Report of the Financial Stability Board to G20 Finance Ministers and Central Bank Governors_ , Fin. Stability Bd. (Apr. 10, 2011), at 1, http://www.financial stabilityboard.org/publications/r_110415a.pdf.
> 58 Wulf A. Kaal, _Hedge Fund Regulation via Basel III_ , 44 VAND. J. TRANSNAT’L L. 389, 439 (2011).
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methods to hide the true size of their balance sheet.<sup>59</sup> At its core, Basel III establishes the following capital ratio requirements: (1) tier 1 capital 6%, (2) common equity 4.5%, and (3) total capital 8%.<sup>60</sup> More importantly, the Basel Accord establishes the requirement of capital conservation buffers to be drawn upon during a financial crisis.<sup>61</sup> Under Basel II, the total capital requirement for banks were merely 8%, i.e., 2% common equity tier 1 capital, 2 % other qualifying tier 1 capital, and 4% tier 2 capital. Starting in 2019, banks will be required to hold a total common equity plus conservation buffers of 7% amounting to a total capital plus conservation buffer of 10.5%.<sup>62</sup> Adding countercyclical buffers of up to 2.5 % and SIFI capital surcharges, the total capital required under Basel III could reach around 13%.
Since the endorsement of the Basel Accord and following the recommendations of the FSB, international attention seems to have shifted away from the international coordination of national bank resolution regimes toward regulating systemically important financial institutions.<sup>63</sup> Early in 2011, at the Paris meeting of the G20 finance ministers and central bank governors, the group agreed to focus on systemically important financial institutions of significance for the global financial markets (GSIFIs) as opposed to financial institutions of significance only in their respective home countries and identified a number of issues to work on.<sup>64</sup>
The group identified the classification of G-SIFIs as well as the need for a comprehensive multi-tiered framework with more supervisory oversight and a more effective cross border resolution regime as the most important issues to address.<sup>65</sup> As part of a viable resolution regime for G- SIFIs, the group considered the possibility of capital surcharges, contingent capital, and bail-in instruments as statutory write-down tools within resolution and systemic levies.<sup>66</sup> To expedite the work on G-SIFIs, the
> 59 _Id._ at 444.
> 60 _Id._
> 61 _Id._ at 446.
> 62 _Id._
> 63 _See, e.g._ , Höche, _supra_ note7.
> 64 G20, _Communiqué, Meeting of Finance Ministers and Central Bank Governors_ , February 18–19, 2011, ¶ 6, http://www.g20.org/pub_communiques.aspx (last visited July 18, 2011) (Paris) [hereinafter G20]. G-SIFIs are global systemically important financial institutions as opposed to regional or national systemically important financial institutions. For example, the two biggest Swiss banks, UBS and Credit Swiss, are both global players, while at the same time being Switzerland’s biggest banks. Conversely, Japan, on a national level, has various systemically important financial institutions, but these Japanese banks are not of similar global significance. _See, e.g._ , Patrick Jenkins, _G20 Draws Up Two Tier Bank Plan_ , FIN. TIMES, Nov. 9, 2010, http://www.ft.com/intl/cms/s/0/ff3f3a4a-ec46-11df-9e1100144feab49a.html#axzz1aQH71R8b.
> 65 G20, _supra_ note 64, ¶ 6.
> 66 _Id._
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group asked the FSB to deliver first recommendations on G-SIFI classification and loss absorbency before the G20 summit in the fall of 2011.<sup>67</sup> The preliminary factors established to categorize G-SIFIs, which may also include insurers, are (1) global activities, (2) size, (3) interconnectedness, (4) substitutability and (5) complexity.<sup>68</sup> In addition, as an alternative to the requirement of higher loss absorbency capacity, the FSB considered a combination of capital surcharges and “bail-inables”.<sup>69</sup> In the context of bank resolution tools and regimes, the FSB has also set up a Bail-in Working Group, which is reviewing technical aspects and financial stability implications of both contractual and statutory bail-in instruments and mechanisms.<sup>70</sup> The FSB published a consultation paper on bank resolution of SIFIs in July 2011.<sup>71</sup>
# III. EUROPEAN BANK RECOVERY AND RESOLUTION
The European Union initiated a number of long- and short-term initiatives since the financial crisis.<sup>72</sup> Most of the initiatives were aimed at specific areas of concern that required immediate attention. One example is the European Union deposit guarantee scheme.<sup>73</sup> The long-term initiatives were aimed at establishing a more comprehensive response to the financial crisis. The initiatives included establishing an effective European System of Financial Supervisors,<sup>74</sup> the European Union framework for crisis management in the financial sector<sup>75</sup> and revision of the Capital Requirements Directive (CRD IV).<sup>76</sup>
> 67 FIN. STABILITY BD., _supra_ note 57, at 2.
> 68 _Id._
> 69 _Id._ at 2.
> 70 _Id._ at 3.
> 71 Fin. Stability Bd., _Consultative Document, Effective Resolution of Systemically Important Financial Institutions: Recommendations and Timelines_ , (July 19, 2011), http://www.financialstabilityboard.org/publications/r_110719.pdf.; Fin. Stability Bd., Comments Received on the FSB Consultative Document on Effective Resolution of SIFIs, http://www.financialstabilityboard.org/press/c_110909.htm (last visited Apr. 6, 2012).
> 72 The sovereign debt crisis in Europe is not the focus of this paper. Although clearly related to the financial crisis and public bank bail-outs, a comprehensive discussion of the issues and latest developments related to the sovereign debt crisis of Greece, Ireland, Portugal, and the actions taken by the European Union and IMF would go far beyond the focus of this paper. As such, we will also not discuss the European Financial Stability Facility (ESFS) or the European Stability Mechanism (ESM).
> 73 Council Directive 2009/14, 2009 O.J. (L 68) 3 (EU).
> 74 Council Regulation 1092/2010, 2010 O.J. (L 331) 1; Council Regulation 1093/2010, 2010 O.J. (L 331) 12; Council Regulation 1094/2010, 2010 O.J. (L 331) 48; Council Regulation 1095/2010, 2010 O.J. (L 331) 84.
> 75 COM (2010) 579 final, _supra_ note 11.
> 76 _See, e.g._ , European Commission, _Possible Further Changes to the Capital Requirements Directive_ , at 1–2 (Comm’n Services, Working Staff Paper, 2010), _available at_ http://ec.europa.eu/internal_market/consultations/docs/2010/crd4/consultation_paper_en.pdf
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# A. European Union Initiatives
As one of its first initiatives, the European Union amended the Deposit Guarantee Schemes Directive 2009/14/EC in the spring of 2009.<sup>77</sup> The goal of the amendment was to restore consumer confidence and protection after the turmoil of the crisis.<sup>78</sup> The directive applies to all credit institutions in the European Union and requires all institutions to join a Deposit Guarantee Scheme (DGS).<sup>79</sup> Member States are required to ensure that all bank deposits are secured at 100.000 euro,<sup>80</sup> which is an increase of 80.000 euro over prior Union requirements.<sup>81</sup> In addition, a coverage payout cannot be delayed for more than 20 working days.<sup>82</sup> Deposit guarantee schemes are further required to be regularly supervised and must perform stress tests.<sup>83</sup>
Following the findings of the _de Larosiere Report_ ,<sup>84</sup> the European Commission also adopted a recommendation on remuneration in the financial services sector<sup>85</sup> and a recommendation on directors’ pay.<sup>86</sup> With a view towards long-term profitability and performance, the Commission suggested that Member States regulate remuneration of risk-taking staff and seek a balance between core pay and bonuses.<sup>87</sup> The Commission also
[hereinafter Comm’n Services].
> 77 Council Directive 2009/14, 2009 O.J. (L 68) 3 (EU).
> 78 Press Release, European Commission, Commission Proposes Package to Boost Consumer Protection and Confidence in Financial Services (July 12, 2010), http://ec.europa. eu/internal_market/bank/guarantee/index_en.htm.
> 79 Council Directive 94/19, art. 3, 1994 O.J. (L 35) 5, 8. However, deposits other than consumer deposits, such as deposits of financial institutions, public authorities, structured investment products, and debt certificates are now specifically excluded from coverage; _see also Commission Proposal for a Directive of the European Parliament and of the Council on Deposit Guarantee Schemes_ at 2, 6–9 COM (2010) 368 final (July 12, 2010).
> 80 _See_ Council Directive, _supra_ note 81, at art. 1(a).
> 81 _Id._ pmbl. ¶ 3.
> 82 _Id._ pmbl. ¶ 10.
> 83 _Id._ pmbl. ¶ 6.
> 84 The de Larosière Grp., The High-Level Group on Financial Supervision in the EU, Brussels, at 31 (Feb. 25, 2009) (chaired by Jacques de Larosière), _available at_ http://ec.europa.eu/internal_market/finances/docs/de_larosiere_report_en.pdf [hereinafter The de Larosière Grp.]. The de Larosière Group was a group of experts asked by the European Commission to provide advice on the future of European financial regulation and supervision. The work of the group resulted in the so-called _de Larosière Report_ . Members of the group were Jacques de Larosière, Leszek Balcerowicz, Otmar Issing, Rainer Masera, Callum McCarthy, Lars Nyberg, José Pérez, and Onno Ruding.
> 85 Press Release, European Commission, Financial Services Sector Pay: Commission Set Out Remuneration of Risk-Taking Staff in Financial Institutions (Apr. 29, 2009), http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/674 [hereinafter Press Release]; Commission Recommendation _On Remuneration Policies in the Financial Services Sector_ , C(2009) 3159 (Apr. 30, 2009).
> 86 _See_ Press Release, _supra_ note 85; _see also_ Council Directive 2011/61, 2011 O.J. (L 174) 1, 70 (EC).
> 87 Kaal, _supra_ note 58, at 401; Press Release, _supra_ note 85.
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deemed a claw-back option for bonuses a necessary requirement<sup>88</sup> and asked that Member States make remuneration policies transparent for all parties involved.<sup>89</sup> Similar recommendations followed for directors’ pay, including a limit on golden parachutes and a ban on severance pay in case of failure.<sup>90</sup>
Another important European Union initiative was the adoption of Directive 2011/61/EU on Alternative Investment Fund Managers (AIFM).<sup>91</sup> After an initial proposal in the spring of 2009, the directive went into force on July 21, 2011. The AIFM sector in the European Union, which represented assets of around 2 trillion euro at the end of 2008, includes hedge funds, private equity funds, and commodity funds, among others.<sup>92</sup> The directive regulates AIFM and applies to funds managing 100 million euros or more.<sup>93</sup> Some estimates suggest that this applies to 90% of assets managed by hedge funds domiciled in the European Union.<sup>94</sup> The directive regulates all major sources of risk of AFIM,<sup>95</sup> includes various transparency rules,<sup>96</sup> and sets corporate governance standards on how to manage risk, liquidity, and conflicts of interest.<sup>97</sup> Finally, the directive aims to establish a passport regime with a transitional period of three years for non-EU hedge funds in order to perform management and marketing activities in the European Union.<sup>98</sup>
# B. Long-Term Initiatives of the European Union
Among the most important long-term initiatives are the establishment of a European System of Financial Supervisors (ESFS)<sup>99</sup> and the
> 88 Press Release, _supra_ note 85 _; see also_ Guido Ferrarini & Maria Cristina Ungureanu, _Economics, Politics, and the International Principles for Sound Compensation_ , 64 VAND. L. REV. 431, 477 (2011).
> 89 Press Release _, supra_ note 85.
> 90 Press Release _, supra_ note 85; _Communication from the Commission accompanying Commission Recommendation complementing Recommendations 2004/913/EC and 2005/162/EC_ , COM (2009) 211 final (April 30, 2009).
> 91 Council Directive 2011/61, _supra_ note 86, at 1. For a critical assessment, _see_ Kaal, _supra_ note 58, at 396–97 (assessing the influence of the Directive on the alternative investment community’s competitiveness and suggesting hedge fund regulation through Basel III).
> 92 Press Release, European Commission, Financial Services: Commission proposes EU framework (Apr. 29, 2009), http://europa.eu/rapid/pressReleasesAction.do?reference= IP/09/669&format=PDF&aged=1&language=EN&guiLanguage=en [hereinafter Press Release: Financial Services].
> 93 Council Directive 2011/61, _supra_ note 86, art. 3, at 15.
> 94 Press Release: Financial Services, _supra_ note 92.
> 95 Council Directive 2011/61, _supra_ note 86, at 1, ¶ 2.
> 96 _Id._ art. 22.
> 97 _Id._ art. 15.
> 98 _Id._ pmbl. ¶ 4.
> 99 Council Regulation 1093/2010, 2010 O.J. (L 331) 12; _see infra_ text accompanying
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Commission Communication on the European Union framework for crisis management in the financial sector.<sup>100</sup> The latter resulted in the DG Internal Market and Service Working Document on technical details of a possible European Union framework for bank recovery and resolution,<sup>101</sup> as well as the most recent Commission proposal on the revision of the Capital Requirements Directive.<sup>102</sup>
# _1. The European System of Financial Supervisors_
Since January 1, 2011, the European Union has a new European System of Financial Supervisors (ESFS).<sup>103</sup> Many details about the powers of the ESFS remain unclear, but the introduction of this new European Union supervisory architecture generally followed recommendations made in the _de Larosiere Report_ .<sup>104</sup> The Report recognized the need to strengthen European supervisory arrangements and recommended the establishment of a Union-level body charged with overseeing the financial system as a whole.<sup>105</sup> The prior system of financial service committees<sup>106</sup> only played an advisory role with no real power,<sup>107</sup> and Union-wide supervision was at best fragmented, inconsistent and ineffective.<sup>108</sup>
It is questionable whether the ESFS may be able to address all of the identified shortcomings. The system is primarily aimed at establishing a European single rule book, upgrading the quality and consistency of
note 103.
> 100 _See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the European Central Bank_ , COM (2010) 579 final (Nov. 20, 2010).
> 101 DG Working Document, _supra_ note 10.
> 102 IP/11/915, _supra_ note 8; CRD IV Directive, _supra_ note 10; DG Working Document, _supra_ note 10.
> 103 Council Regulation 1093/2010, _supra_ note 74, ¶ 69.
> 104 The de Larosière Grp., _supra_ note 84.
> 105 Council Regulation 1092/2010, _supra_ note 74, pmbl. ¶¶ 3–4.
> 106 The so-called “Lamfalussy level committees” consist of the Committee of the European Banking Supervisors (CEBS), the Committee of European Insurance and Occupational Pensions Committee (CEIOPS), and the Committee of European Securities Regulators (CESR).
> 107 Commission Decision of 23 January 2009 establishing the Committee of European Banking Supervisors (EC), 2009 O.J. (L 25) 23 [hereinafter CEBS Decision]; Commission Decision of 23 January 2009 establishing the Committee of European Insurance and Occupational Pensions Supervisors (EC), 2009 O.J. (L 25) 28, [hereinafter CEIOPS Decision]; Commission Decision of 23 January 2009 establishing the Committee of European Securities Regulators (EC), 2009 O.J. (L 25) 18. [hereinafter CESR Decision]. _See also_ Press Release, European Commission, European System of Financial Supervisors (ESFS): Frequently Asked Questions (Sept. 23, 2009), _available at_ http://europa.eu/rapid/ pressReleasesAction.do?reference=MEMO/09/404&format=PDF&aged=1&language=EN& guiLanguage=en [hereinafter Press Release FAQ].
> 108 _See, e.g._ , Council Regulation 1093/2010, _supra_ note 74, pmbl. ¶ 8; Press Release FAQ, _supra_ note 107.
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national supervision, and strengthening the oversight of cross-border groups.<sup>109</sup> Although the ESFS remains limited to a Union-wide early exchange of information, it improves the prior supervisory system by harmonizing technical standards, coordinating Union-wide supervisory actions, and providing some decision-making powers in emergency situations.<sup>110</sup>
The European System of Financial Supervisors is considered an integrated network of national and European Union supervisory authorities.<sup>111</sup> It distinguishes between macro- and micro-prudential oversight.<sup>112</sup> The ESFS consists of the European Systemic Risk Board (ESRB) and three European Supervisory Authorities: the European Banking Authority (EBA), the European Securities and Markets Authority (ESMA), and the European Insurance and Occupational Pension Authority (EIOPA).<sup>113</sup> The ESAs replace the Committee of European Banking Supervisors,<sup>114</sup> the Committee of European Insurance and Occupational Pensions Supervisors,<sup>115</sup> and the Committee of European Securities Regulators.<sup>116</sup>
> 109 Council Regulation 1093/2010, _supra_ note 74, pmbl. ¶ 5.
> 110 _Id._ art. 18.
> 111 _Id._ pmbl. ¶ 9.
> 112 _Id._
> 113 The ESA also includes a Joint Committee of the European Authorities (Joint Committee) and all competent or supervisory in the Member States. _See, e.g._ , _id._ art. 2, at ¶ 2(e)–(f). This article does not focus on all ESAs or include a comprehensive discussion of the role of the ESFS. The goal of the article is simply to provide an overview of the ESFS in the context of actions taken by the European Union in response to the financial crisis.
> 114 CEBS Decision, _supra_ note 107.
> 115 CEIOPS Decision, _supra_ note 107.
> 116 CESR Decision, _supra_ note 107.
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# **EUROPEAN SYSTEM OF FINANCIAL SUPERVISION**
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European Council & European Parliament<br>Commission<br> of the European Union<br>European Systemic European Supervisory Member State<br>Risk Board [ESRB] Authorities [ESAs] Supervisory Authorities [MSSAs]<br>Joint Committee European Banking European Securities European Insurance and<br>Authority [EBA] and Market Occupational Pension<br>Authority [ESMA] Authority [EIOPA]<br>Subcommittee<br> on Financial<br>Conglomerates<br>Board of Appeals<br>Court of Justice of the European Union<br><!-- End of picture text -->
The European Systemic Risk Board (ESRB) is the systemic risk regulator<sup>117</sup> of the Union charged with the task of monitoring and assessing systemic risk in the Union.<sup>118</sup> It is comparable to the Financial Stability Oversight Council under Dodd-Frank.<sup>119</sup> The ESRB is tasked with the duty of developing a risk dashboard and a color code for interested parties to help them assess the nature of systemic risk.<sup>120</sup> It will also work closely with the European Supervisory Authorities in issuing recommendations<sup>121</sup> and warnings.<sup>122</sup> It cooperates with the Bank of International Settlement (BIS), the Financial Supervisory Board (FSB), and the International
> 117 Council Regulation 1092/2010, _supra_ note 74, pmbl. ¶ 15, art. 3.
> 118 _Id._ art. 15.
> 119 Dodd-Frank Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010); _Brief Summary of the Dodd-Frank Wall Street Reform and Consumer Protection Act_ , S. Comm. on Banking, Hous., and Urban Affairs, _available at_ http://banking.senate.gov/public/_files/ 070110_Dodd_Frank_Wall_Street_Reform_comprehensive_summary_Final.pdf.
> 120 Council Regulation 1092/2010, _supra_ note 74, pmbl. ¶ 18; _see also_ Jean-Claude Trichet, Mervyn King, & Andrea Enria, European Systemic Risk Bd., Introductory Remarks to the Press Conference (June 22, 2011), _available at_ http://www.esrb.europa.eu/news/ pr/2011/html/is110622.en.html; Ralph Atkins, _Debt Crisis Flashing Warning Signs, says ECB chief_ , FIN. TIMES, June 22, 2011, http://www.ft.com/intl/cms/s/0/87831328-9cfe-11e08678-00144feabdc0.html#axzz1bRdPbQqQ.
> 121 Council Regulation 1092/2010, _supra_ note 74, art. 17.
> 122 _Id._ art. 16.
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Monetary Fund (IMF)<sup>123</sup> in developing international standards and assessing global risk.<sup>124</sup> The President of the European Central Bank will chair the ESRB for the first 5 years.<sup>125</sup> The ESRB will also have two ViceChairs,<sup>126</sup> a General Board,<sup>127</sup> a Steering Committee,<sup>128</sup> and two advisory committees<sup>129</sup> supporting its work.<sup>130</sup> At the European Union level, the ESRB is accountable and reports directly to the Council and the European Parliament.<sup>131</sup>
Conversely to the ESRB, the European Supervisory Authorities (ESAs)<sup>132</sup> oversee the micro-prudential performance of their respective industries with the goal of fostering convergence and promoting coordination among the European Union Member States.<sup>133</sup> Specifically, the ESAs work to guarantee a level playing field and prevent regulatory arbitrage to strengthen international supervisory coordination.<sup>134</sup> In addition, the Authorities can settle cross-border disputes among national supervisory authorities with binding effect.<sup>135</sup> The Authorities also serve as an independent advisory body to the European Parliament, the Council, and the Commission.<sup>136</sup> The principal decision-making body of the ESAs is chaired by a person with no voting power and is comprised of a board of supervisors that includes the heads of the relevant competent supervisory authorities in the member state.<sup>137</sup>
The ESAs are supported by a Joint Committee of European Supervisory Authorities.<sup>138</sup> The Joint Committee is composed of the chairpersons of the ESAs and serves as a coordinating forum to ensure cross-sectoral consistency and the exchange of information with the
> 123 _Id._ pmbl. ¶¶ 7–8.
> 124 _Id._ pmbl. ¶ 9.
> 125 _Id._ art. 5.
> 126 _Id._
> 127 _Id._ art. 6.
> 128 _Id._ art. 11.
> 129 _Id._ arts. 12–13.
> 130 _Id._
> 131 _Id._ art. 19.
> 132 _See_ Council Regulation 1093/2010, _supra_ note 78. _See also supra_ text accompanying note 103. The ESAs are: the European Banking Authority (EBA), the European Securities and Markets Authority (ESMA), and the European Insurance and Occupational Pension Authority (EIOPA).
> 133 _See, e.g._ , Council Regulation 1093/2010, _supra_ note 74, pmbl. ¶ 11, art. 19.
> 134 _Id._
> 135 _Id._ pmbl. ¶ 32.
> 136 _Id._ art. 45.
> 137 _Id._ art. 52; _see also id._ art. 40 (Representatives of the Commission, the ESRB, the ECB, and the other respective ESAs participate as observers).
> 138 _Id._ art. 54.
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ESRB.<sup>139</sup> The Joint Committee is also responsible for settling possible disputes between the ESAs.<sup>140</sup> A Board of Appeal reviews decisions by the ESAs.<sup>141</sup> The European Court of Justice is the ultimate authority to review decisions by the ESAs.<sup>142</sup> All competent authorities as well as any natural and legal person involved in or subject to the ESA decision may file appeals.<sup>143</sup> But, the European Commission may ultimately curtail all powers transferred to the ESAs.<sup>144</sup>
Among the ESAs, the European Banking Authority (EBA)<sup>145</sup> has the most prominent role. In cooperation with the ESRB, the EBA initiates and coordinates Union-wide stress tests and peer reviews of financial institutions.<sup>146</sup> It also contributes to “developing methods for the resolution of failing financial institutions, in particular those that may pose a systemic risk, in ways which avoid contagion and allow them to be wound down in an orderly and timely manner, including, where applicable, coherent and robust funding mechanisms as appropriate.”<sup>147</sup> Moreover, the EBA supervises the implementation of the Deposit Guarantee Scheme Directive,<sup>148</sup> ensuring that all national guarantee schemes are adequately funded.<sup>149</sup>
The European Securities and Markets Authority (ESMA),<sup>150</sup> on the other hand, supervises any legislation and any matters related to the Alternative Investment Funds Managers Directive<sup>151</sup> including issues of corporate governance, auditing and financial reporting.<sup>152</sup> The ESMA oversees and takes appropriate actions regarding takeover bids in the financial sector, clearing and settlement, as well as derivative issues.<sup>153</sup> In addition to the limitation of its power by the Commission, the ESMA is, however, also subject to limitation by the supervisory authority of the
> 139 _Id._
> 140 _Id._
> 141 _Id._ art. 58 (stating that the Board of Appeal is a joint body of all ESAs).
> 142 _Id._ art. 61.
> 143 _Id._ art. 60.
> 144 _Id._ art. 1, at ¶ 4; Council Regulation 1094/2010, _supra_ note 74, art. 1, at ¶ 4; Council Regulation 1095/2010, _supra_ note 74, art. 1, at ¶ 4 (“4. The provisions of this Regulation are without prejudice to the powers of the Commission, in particular under Article 258 TFEU, to ensure compliance with Union law.”).
> 145 Council Regulation 1093/2010, _supra_ note 74.
> 146 _Id._ ¶ 43.
> 147 _Id._ art. 27.
> 148 Council Directive 2009/14, 2009 O.J. (L 68) 3 (EU).
> 149 Council Regulation 1093/2010, _supra_ note 74, art. 26.
> 150 _Id._
> 151 _See_ Council Directive 2011/61, _supra_ note 86 and accompanying text.
> 152 Council Regulation 1095/2010, _supra_ note 74, art. 1.
> 153 _Id._
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# EBA.<sup>154</sup>
The European Insurance and Occupational Pension Authority (EIOPA)<sup>155</sup> is comparable to the Office of National Insurance in the U.S.<sup>156</sup> The EIOPA is entrusted with the supervision of all insurance and reinsurance undertakings, insurance intermediaries, and pension funds.<sup>157</sup> Analogous to the EBA<sup>158</sup> and the ESMA,<sup>159</sup> the EIOPA is also charged with taking a leading role in consumer protection by promoting “transparency, simplicity and fairness in the market for consumer financial products or services across the internal market.”<sup>160</sup> Overall, the EIOPA may be considered the European Supervisory Authority with the least power when compared to the EBA or the ESMA. Not only is the EIOPA subject to the limitations posed by the supervisory powers of the Commission and the EBA, the EIOPA is also prohibited from encroaching on Member State powers as they relate to pension funds.<sup>161</sup>
# _2. Proposed Framework for Crisis Management_
The most important and far reaching initiatives of the European Union stem from the European Commission communications on crisis management in the financial sector since 2009.<sup>162</sup> These communications resulted in the latest legislative proposal from July 20, 2011,<sup>163</sup> on the revisions of the Capital Requirements Directive (CRD IV).<sup>164</sup>
> 154 Council Regulation 1095/2010, _supra_ note 74, art. 1, at ¶ 2 (“. . . without prejudice to the competence of the European Supervisory Authority (European Banking Authority) in terms of prudential supervision . . . .”).
> 155 Council Regulation 1094/2010, _supra_ note 74.
> 156 National Insurance Act of 2007, H.R. 3200, 110th Cong. § 1101 (2007) (establishing the Office of National Insurance).
> 157 Council Regulation 1094/2010, _supra_ note 74, art. 1, at ¶¶ 2–4.
> 158 Council Regulation 1093/2010, _supra_ note 74, art. 9.
> 159 Council Regulation 1095/2010, _supra_ note 74, art. 9.
> 160 Council Regulation 1094/2010, _supra_ note 74, art. 9, ¶ 1.
> 161 _Id._ art 2, at ¶ 4.
> 162 COM (2010) 579 final, _supra_ note 11. _See also Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the European Court of Justice and the European Central Bank,_ COM (2009) 561 final (Oct. 20, 2009); _Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the European Central Bank_ , COM (2010) 254 final (May 26, 2010), _available at_ http://ec.europa.eu/internal_market/bank/ crisis_management/index_en.htm#funds. The European Parliament also provided recommendations on cross-border crisis management in the banking sector (so-called Ferreira Report). Draft Report with Recommendations to the Commission on Cross-Border Crisis Management in the Banking Sector, Comm. on Economic and Monetary Affairs, 2010/2006 (INI) (Apr. 7, 2010) (by Elisa Ferreira).
> 163 _See_ Comm’n Services, _supra_ note 76.
> 164 _See, e.g._ , CRD IV Regulation and CRD IV Directive, _supra_ note 10, at 10; _see also id._ at 1–2.
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Based on the premise that public bail-outs of financial institutions should never happen again<sup>165</sup> and that banks must be allowed to fail like any other business, the Commission developed a framework for prevention, crisis management, and resolution of banks.<sup>166</sup> At the early intervention stage, the Commission proposed to reinforce the supervisory regime under the current Capital Requirements Directives (CRD),<sup>167</sup> adding more robust standards and more intrusive intervention tools.<sup>168</sup> The Commission further identified the drafting of recovery and resolution plans (living wills) as essential elements of effective crisis management.<sup>169</sup> The Commission noted that:
A requirement for up to date resolution plans would apply to all credit institutions and investment firms covered by the [resolution] regime, with the aim of ensuring the planning necessary to enable the business of the bank or firm to be transferred or wound down in an orderly manner in the event of its failure.<sup>170</sup>
The content of such plans may include details on group structure, intra-group guarantees, service level agreements, and other operational information.<sup>171</sup> Article 136 of the CRD provides additional preventative powers.<sup>172</sup> Specifically, the ability of supervisory authorities to limit or modify risk exposure, to increase reporting, to restrict or to prohibit certain
> 165 In this context, the European Commission has approved €4.6 trillion of state aid measures to financial institutions, of which more than €2 trillion were effectively used in 2008 and 2009. _See, e.g._ , Press Release, European Comm’n, Commission Wants Stronger and More Responsible Banks (July 20, 2011), _available at_ http://europa.eu/rapid/ pressReleasesAction.do?reference=IP/11/915&format=HTML&aged=0&language=EN& guiLanguage=en. In total, European Union governments paid state aid amounting to approximately 30% of the combined EU GDP, while the aid used until December 2009 amounts to 13%. _See, e.g._ , COM (2010) 579 final, _supra_ note 11, at 2.
> 166 COM (2010) 579 final, _supra_ note 11; DG Working Document, _supra_ note 10.
> 167 _See_ Council Directive 2006/48, 2006 O.J. (L 177) 1 (EC); Council Directive 2006/49, 2006 O.J. (L 177) 201 (EC).
> 168 COM (2010) 579 final, _supra_ note 11, at 5.
> 169 _Id._
> 170 _Id._ at 6.
> 171 _Id._
> 172 Council Directive 2006/48, _supra_ note 167, at 50 (“Article 136 - 1. Competent authorities shall require any credit institution that does not meet the requirements of this Directive to take the necessary actions or steps at an early stage to address the situation. For those purposes, the measures available to the competent authorities shall include the following: (a) obliging credit institutions to hold own funds in excess of the minimum level laid down in Article 75; (b) requiring the reinforcement of the arrangements, processes, mechanisms and strategies implemented to comply with Articles 22 and 123; (c) requiring credit institutions to apply a specific provisioning policy or treatment of assets in terms of own funds requirements; (d) restricting or limiting the business, operations or network of credit institutions; and (e) requiring the reduction of the risk inherent in the activities, products and systems of credit institutions . . .”).
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activities, and to require a change to the legal corporate structure and business arrangement.<sup>173</sup>
While many of these steps mimic developments at the international level<sup>174</sup> and in the United States under Dodd-Frank,<sup>175</sup> the European approach is different with regard to recovery and the determination of when a bank should be subject to wind down.<sup>176</sup> The Commission recognized that a bank’s breach of capital requirements might not necessarily mean that the institution is encountering serious problems which inevitably would lead to failure.<sup>177</sup> More importantly, the Commission proposal balanced the interest of property rights of shareholders and creditors with liquidation as an intervention in the public interest and concluded that resolution actions may not be taken before all other realistic recovery options are exhausted.<sup>178</sup>
Although primarily mentioned in the context of SIFIs,<sup>179</sup> the Commission recognized that supplementary mechanisms enabling a financial institution to reorganize and continue as a going concern<sup>180</sup> may also be necessary to protect financial stability and to prevent anticompetitive results.<sup>181</sup> While focused on making the threat of market exit a realistic option, the Commission did not consider liquidation as the only or best option for failing banks.<sup>182</sup> The Commission therefore not only recognized that reorganization is an important option during crisis management in order to maintain crucial activities, but also that it may allow banks to stabilize, return to viability, and stay in the market place without the need for public bail-outs. The supplementary mechanism that the Commission specifically identified as a reorganization option is the debt write-down tool that allows the contractual or statutory conversion of debt to equity.<sup>183</sup>
> 173 COM (2010) 579 final, _supra_ note 11, at 6.
> 174 FIN. STABILITY BD., _supra_ note 57, at 1. _See also_ FIN. STABILITY BD., G20 Monitoring Progress – United States (Sept.. 2010), _available at_ http://www.financialstabilityboard.org/ publications/ r_110401x.pdf; FIN. STABILITY BD., G20 Monitoring Progress Progress – Germany (Sept. 2010), _available at_ http://www.financialstabilityboard.org/publications /r_110401g.pdf.
> 175 Dodd-Frank Act, Pub. L. No. 111-203, § 115(d), 124 Stat. 1376 (2010) (“resolution plans”).
> 176 _See, e.g._ , _id._ §§ 214, 1442–1520.
> 177 COM (2010) 579 final, _supra_ note 11, at 7.
> 178 _Id._
> 179 _Id._ at 11. The Commission refers to systemically important financial institutions (SIFIs) as large, complex financial institutions (LCFIs).
> 180 _Id._
> 181 _Id._
> 182 _Id._ at 8–9 (“The Commission will consider what reform of bank insolvency law is necessary to ensure that failed banks can be liquidated as a second phase . . .with the ultimate aim of ensuring that liquidation is a realistic option.”).
> 183 _Id._ at 12; _see also_ DG Working Document, _supra_ note 10, at 51, 55, 86.
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The Commission considered the option of a statutory write-down supplemented by either a comprehensive or targeted approach for additional debt-equity conversion.<sup>184</sup> The statutory debt write-down proposed by the Commission would be exercisable by any national resolution authority when an institution meets a predefined trigger condition for entry into resolution.<sup>185</sup> At that point, the authority would have the power to write down all equity and either write down subordinate debt or convert the debt into equity (so-called statutory core power).<sup>186</sup> Under the comprehensive approach, a discretionary amount of senior debt necessary to return the institution to solvency could also be converted into equity, in addition to the prior conversion of subordinated debt under the statutory core power.<sup>187</sup>
The alternative to the Commission’s comprehensive approach considered by the Commission is the targeted approach.<sup>188</sup> The targeted approach combines statutory and contractual elements of debt conversion. Prior to any financial distress, national resolution authorities would first require financial institutions to issue a fixed volume of “bail-inable” debt.<sup>189</sup> This fixed volume would be converted into equity on a statutory trigger, in addition to the conversion of debt under the statutory core power.<sup>190</sup> In sum, the Commission proposed to establish haircuts for all equity supplemented by a debt conversion of both subordinate and senior debt when the financial institution is in danger of insolvency. The ultimate goal of this supplementary debt conversion mechanism is to “ensure that an institution in difficulty returns to viability so as to maintain market and creditor confidence when the markets next open.”<sup>191</sup>
Finally, analogous to the Dodd-Frank Act,<sup>192</sup> the Commission also proposed to include the option of selling the institution or part of the institution to one or more purchasers without consent of the shareholders.<sup>193</sup> In order to clean the balance sheet of a troubled bank, the proposal allows the transfer of assets either to a temporary “bridge bank” or, in case of generally underperforming assets, to a “bad bank”.<sup>194</sup>
> 184 DG Working Document, _supra_ note 10, at 87–89.
> 185 _Id._
> 186 _Id._ at 87.
> 187 _Id._
> 188 _Id._ at 89.
> 189 _Id._
> 190 _Id._
> 191 _Id._ at 87.
> 192 _See, e.g._ , Dodd-Frank Act, Pub. L. No. 111-203, § 210, 124 Stat. 1376, 1460 (2010).
> 193 COM (2010) 579 final, _supra_ note 11, at 9–10; _see also_ DG Working Document, _supra_ note 10, at 52.
> 194 COM (2010) 579 final, _supra_ note 11, at 10; _see also_ DG Working Document, _supra_ note 10, at 52–55.
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# _3. Revisions of the Capital Requirements Directives_
On July 20, 2011, the European Commission adopted a new proposal on capital requirements for financial institutions.<sup>195</sup> The proposal will replace the current capital requirements directives 2006/48/EC<sup>196</sup> and 2006/49/EC,<sup>197</sup> and it marks an important step toward developing a comprehensive regime for crisis prevention, bank recovery, and resolution in the European Union. The proposal is also the first legal framework to incorporate the third Basel Accord endorsed by the G20 at its summit in Seoul in November 2010.<sup>198</sup> And, if enacted by the European Parliament and the Council, would apply to more than 8000 banks, amounting to approximately 53% of global assets.<sup>199</sup>
The proposal consists of both a directive<sup>200</sup> and a regulation.<sup>201</sup> The directive regulates access to deposit-taking activities, including sanctions, effective corporate governance and provisions preventing the overreliance on external credit ratings.<sup>202</sup> In addition, the directive also deals with the Basel III agreement as it relates to the provisions on capital buffers.<sup>203</sup> Of particular interest are the measures proposed in the context of management risk taking<sup>204</sup> and capital buffers.<sup>205</sup>
Considering the importance of effective risk control, the Commission proposes the establishment of a “risk committee to deal specifically with risk issues and prepare management body decisions on risk issues . . . [and to] assist the management body in its risk oversight role. . .”<sup>206</sup> In addition, the Commission believes the establishment of an independent risk management function is essential in order to provide all levels of management with a complete and more accurate view on risks and possible risk exposure.<sup>207</sup>
Regarding capital buffers, the Commission proposes a system of dual capital buffers in addition to the capital requirements: a capital conservation buffer and a countercyclical capital buffer.<sup>208</sup> The capital conservation
> 195 IP/11/915, _supra_ note 8.
> 196 Council Directive 2006/48, _supra_ note 167.
> 197 Council Directive 2006/49, _supra_ note 167.
> 198 See G20 Seoul Summit, _supra_ note 56 and accompanying text.
> 199 IP/11/915, _supra_ note 8.
> 200 CRD IV Directive, _supra_ note 10.
> 201 CRD IV Regulation, _supra_ note 10.
> 202 CRD IV Directive, _supra_ note 10, at 2.
> 203 _Id._ Other changes relating to the third Basel Accord are part of the proposal for a regulation.
> 204 _Id._ at 11–12.
> 205 _Id._ at 12–13.
> 206 _Id._ at 11.
> 207 _Id._ at 12 (the proposal refers to “senior management” and “management body”).
> 208 _Id._
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buffer is aimed at loss absorbency in a financial crisis and has a target amount of 2.5% of risk-weighted assets of the highest quality.<sup>209</sup> Financial institutions that fall below the buffer target are subject to limitations on discretionary distributions of earnings.<sup>210</sup>
The additional countercyclical buffer that the Commission recommends seeks to protect financial stability and the economy at large by limiting the effects of various system-wide risks.<sup>211</sup> The countercyclical buffer increases the size of the buffer range up to an additional 2.5%.<sup>212</sup> The discretion to set the actual size of the countercyclical buffer is, however, left to national authorities and may be set between 0% and 2.5% of risk-weighted assets of the highest quality.<sup>213</sup> The ceiling of 2.5% is flexible, providing national authorities with the power to go beyond 2.5% if justified.<sup>214</sup> Regardless, if a member state sets the buffer above 2.5%, other Member States do have the additional discretion to accept or reject that judgment for financial institutions authorized in their own member state.<sup>215</sup> It is also noteworthy that in addition to restrictions on profit distributions, institutions whose capital falls below the buffers are subject to limitations on payments on Additional Tier 1 instruments,<sup>216</sup> bonuses and discretionary pension benefits.<sup>217</sup>
Under the mutual recognition requirement, all Member States may be forced to harmonize the size of their countercyclical buffers Union-wide. If only one Member State, such as Germany, implements sizeable countercyclical buffers all other Member States will be forced to accept this requirement of up to 2.5% for their own financial institutions as long as these institutions are doing business in or maintaining branches and subsidiaries in Germany. Therefore, the financially stronger Member States with the largest financial sectors may dictate the size of countercyclical buffers for smaller Member States, thereby practically reducing any proposed national discretion. The only relevant area where some national discretion may remain is where countercyclical buffers are set above the ceiling for mutual recognition or between 2.5% and 5%. The Commission proposal explicitly allows Member States to implement countercyclical buffers of up to 5%, but limits mutual recognition to the 2.5% ceiling. Even in these instances, the proposed discretion may be misleading. For
> 209 _Id._ ; _see also id._ art. 123, ¶ 1, at 133.
> 210 _Id._ art. 123, ¶ 1, at 124, ¶ 3, at 133.
> 211 _Id._ art. 123, ¶ 1, at 124, ¶ 3, at 113.
> 212 _Id._ at 12 _; see also id._ art. 126, ¶ 5, at 115.
> 213 _Id._ art. 126, ¶ 1, at 13–14 .
> 214 _Id._ art. 126, ¶¶ 3, 5.
> 215 _Id; see also id._ art. 127, at ¶ 1.
> 216 Additional Tier 1 capital is defined in the proposed regulation. CRD IV Regulation, _supra_ note 10, arts. 48–52.
> 217 CRD IV Directive, _supra_ note 10, art. 131, at 13.
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example, if the U.K. intends to set its countercyclical measure at 5% but Germany requires no more than 2.5%, it seems unlikely that the Bank of England and the British government, long term, would be willing to give German banks, a significant competitive advantage over their national financial institutions, especially if the British government maintains significant ownership in some of these institutions.
Finally, the Commission suggests a limitation on the use of external credit ratings.<sup>218</sup> Specifically, the Commission proposes that external credit ratings may only be used as one factor and that financial institutions with material credit risk exposure or a high number of counterparties should be required to develop additional internal rating models rather than only relying on external ratings.<sup>219</sup>
In addition to the directive, the regulation<sup>220</sup> proposed by the Commission aims to ensure the effectiveness of institutional capital regulation, It aims to protect depositors and to limit possible pro-cyclical effects while maintaining competitiveness of the European financial markets.<sup>221</sup> In order to achieve this goal the regulation not only implements the Basel III agreement,<sup>222</sup> it also focuses on maximum harmonization with the goal of achieving a true “single rule book.”<sup>223</sup> The proposal seeks to harmonize different national supervisory regimes by almost entirely removing any options or discretion.<sup>224</sup>
As part of its proposal, the Commission has also adopted<sup>225</sup> the Basel Committee’s minimum requirements on loss absorbency at the point of non-viability.<sup>226</sup> Accordingly, “all Additional Tier 1 and Tier 2 instruments of an institution should be fully and permanently written down or converted fully into Common Equity Tier 1 capital at the point of non-viability of the institution.”<sup>227</sup> In Article 49(1)(n), the proposed regulation defines one form of “Additional Tier 1 instruments” as a capital instrument in which “the provisions governing the instruments require the principal amount of the instruments to be written down, or the instruments to be converted to Common Equity Tier 1 instruments, upon the occurrence of a trigger
> 218 _Id._ at 12.
> 219 _Id._
> 220 CRD IV Regulation, _supra_ note 10.
> 221 _Id._ at 2.
> 222 _Id._ at 10–15. _See also_ CRD IV Regulation, _supra_ note 10, ¶ 24 & art. 87, at 20.
> 223 CRD IV Regulation, _supra_ note 10, at 8.
> 224 _Id._
> 225 CRD IV Regulation, _supra_ note 10, ¶ 27, at 20.
> 226 Press Release, Bank for Int’l Settlements, _Final Elements of the Reforms to Raise the Quality of Regulatory Capital Issued by the Basel Committee_ (Jan. 13, 2011), _available at_ http://www.bis.org/press/p110113.htm.
> 227 CRD IV Regulation, _supra_ note 10, at 20, ¶ 27.
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# event.”<sup>228</sup>
Contingent capital is defined as the conversion or write down of a financial institution’s debt securities into equity securities upon the occurrence of a predefined trigger event.<sup>229</sup> As such, contingent capital would qualify as an “Additional Tier 1 instrument” under the Commission’s proposal. However, the Commission proposal seems to distinguish between different forms of contingent capital and additional Tier 1 instruments by defining different write-down and conversion requirements.<sup>230</sup> Article 51(a)(i) sets a statutory default trigger at 5.125% of the common equity tier 1 ratio.<sup>231</sup> While upward exceptions are allowed,<sup>232</sup> the proposal also stipulates a specific and seemingly separate<sup>233</sup> set of conversion and writedown requirements.<sup>234</sup> First, if the instrument requires conversion into a common equity tier 1 instrument it is required to specify (a) the rate of conversion and the limit on the permitted amount of conversion,<sup>235</sup> and (b) a range within which the instrument will convert into common equity tier 1 instruments.<sup>236</sup> Second, if the instrument requires the principal amount to be written down upon the occurrence of a trigger event, the write-down is required to reduce (a) the claim of the holder of the instrument during liquidation,<sup>237</sup> (b) the amount required to be paid in the event of the call of the instrument,<sup>238</sup> and (c) the distributions made on the instrument.<sup>239</sup>
> 228 _Id._ at 76.
> 229 _See_ discussion _supra_ Part I; _see also_ discussion _infra_ Part IV.
> 230 With regard to the distinction by financial institution attempted in Article 51(a), the distinction is ambiguous and requires further clarification or amendment. Specifically, the statutory reference in § 51, ¶ (a) (“of the institution referred to in point (a) of Article 87”) is unclear and indeterminate.
> 231 CRD IV Regulation, _supra_ note 10, § 51, ¶ (a)(i).
> 232 _Id._ § 51, ¶ (a)(ii).
> 233 _Id._ The statutory relationship between the three subsections in Article 51 is also open to interpretation. Article 51(a) seems to establish a statutory write-down tool similar to that proposed by the Commission in the DG Internal Market and Service Working Document. DG Working Document _, supra_ note 10, at 87. At the same time, the exception to the default trigger event established in Article 51(a)(ii) requires an instrument with a specified trigger event included in the instrument, which is defined by the financial institution and necessarily must be based on contractual terms. This merges two concepts of the proposal in the DG Working Document the concept of a statutory debt write-down tool with that of a contractual write-down tool. It is unclear from the regulation proposal whether the additional trigger event requirements defined in section (b) and (c) are contingent upon the definition in section (a)(ii). In other words, it is unclear whether the requirements of section (b) and (c) only apply to “Additional Tier 1 instruments” that set at least a trigger event of 5.125% as a minimum requirement or whether these requirements are to be viewed as independent.
> 234 CRD IV Regulation, _supra_ note 10, § 51, ¶¶ (b) and (c).
> 235 _Id._ § 51, ¶ (b)(i).
> 236 _Id._ § 51, ¶ (b)(ii).
> 237 _Id._ § 51, ¶ (c)(i).
> 238 _Id._ § 51, ¶ (c)(ii).
> 239 _Id._ § 51, ¶ (c)(iii).
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# C. National Initiatives in Europe
Many countries in Europe, including non-European Union Member States, have actively pursued a reform of national banking and insolvency laws.<sup>240</sup> Although Switzerland is not a member of the European Union and the United Kingdom has not adopted the Euro, the Swiss approach and the approach of the United Kingdom to bank reorganization have served as examples for the reform of the German Banking Law as well as many European Union initiatives. The national initiatives in both countries suggest a need for convergence of international and European Union-wide bank recovery and resolution regimes. At the European Union level, there is some evidence that many national laws implemented during the crisis, including the German Banking Reorganization Act,<sup>241</sup> may need to be amended in order to meet the EU-wide objective of maximum harmonization with the goal of achieving a single-rule book.<sup>242</sup>
# _1. Bank Reorganization under Swiss Law_<sup>_243_</sup>
The Swiss Federal Law on Banks and Savings and Loans<sup>244</sup> includes specific rules for bank reorganization independent of the Swiss bankruptcy code.<sup>245</sup> The reorganization procedure is part of the Swiss Supervisory Authority’s (FINMA) intervention powers and may only be ordered if success is reasonably likely.<sup>246</sup> In addition, sufficient evidence of pending insolvency, significant liquidity problems, or evidence that the bank is unable to meet capital requirements is required for this procedure.<sup>247</sup> The Supervisory Authority may further appoint a trustee charged with drafting the reorganization plan.<sup>248</sup> Unless challenged by creditors in court,<sup>249</sup> the Authority approves and implements the plan without any court
> 240 _See, e.g._ , Bundesgesetz über die Banken und Sparkassen, [Federal Law on Banks, Savings and Loans], BANKENGESETZ [BANKG] Nov. 1934, vol. 8 (Switz.), _available at_ http://www.admin.ch/ch/d/sr/9/952.0.de.pdf; _see infra_ text accompanying note 243.
> 241 _Id._
> 242 CRD IV Regulation, _supra_ note 10, at 10.
> 243 Bundesgesetz über die Banken und Sparkassen [BANKG] [Federal Law on Banks and Savings and Loans] Nov. 8, 1934, SR 952 (Switz.), _available at_ http://www.admin.ch/ ch/d/sr/9/952.0.de.pdf.
> 244 Bundesgesetz über die Banken und Sparkassen [BANKG] [Federal Law on Banks and Savings and Loans] Nov. 8, 1934, SR 952 (Switz.), _available at_ http://www.admin.ch/ ch/d/sr/9/952.0.de.pdf.
> 245 Urs Zulauf, _Schweizer Banken Sanierungsrecht – geeignet für systemrelevante Banken?_ , WERTPAPIER-MITTEILUNGEN: ZEITSCHRIFT 1525, 1530 (2010) (Ger.).
> 246 Bundesgesetz über die Banken und Sparkassen [BANKG] [Federal Law on Banks, Savings and Loans] Nov. 8, 1934, SR 952, at art. 28 (Switz.), _available at_ http://www.admin.ch/ch/d/sr/9/952.0.de.pdf.
> 247 _Id._ art.25, ¶ 1.
> 248 _Id._ art. 28, ¶ 3.
> 249 _Id._ art. 31a, ¶¶ 2–3.
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confirmation.<sup>250</sup> In addition to the Swiss Supervisory Authority’s central role in initiating and overseeing a possible reorganization procedure, the Authority may also reduce or avoid claims and may defer or cease any debt payments.<sup>251</sup> As in the U.S.,<sup>252</sup> the principle of “no creditor worse-off than in liquidation” applies; the impairment of creditors’ claims is limited to the amount of the claim in liquidation.<sup>253</sup>
Similar to many European civil law jurisdictions, in Switzerland the Swiss Supervisory Authority has a dual role as supervisory and resolution authority of financial institutions at the same time. An administrative agency, rather than a bankruptcy court therefore generally oversees insolvency proceedings in Switzerland. The perceived advantage is better knowledge of the banking sector that may result in a more efficient and expeditious procedure. The clear disadvantage is the broad discretion of the agency in overseeing financial institutions. Furthermore, under Swiss law the investigatory and supervisory role of creditors are limited. There is no mandatory requirement to appoint creditors’ committees. Finally, Swiss law does not provide for an automatic stay or allow the financial institution or creditors to challenge any of the measures ordered by the Supervisory Authority other then plan approval.<sup>254</sup>
The Swiss legislature has enacted and amended the Swiss Bank Act.<sup>255</sup> The latest amendments specifically focus on the creation of a legal basis for contingent capital that would allow financial institutions to meet capital requirements through the issuance of contingent capital.<sup>256</sup>
# _2. The British Banking Act of 2009_
The British Banking Act may be the most comprehensive legal framework in response to the turmoil of the financial crisis.<sup>257</sup> Before 2008, the United Kingdom did not have a permanent statutory regime for dealing with bank failures.<sup>258</sup> It introduced the Banking (Special Provisions) Act of
> 250 _Id._ art. 32.
> 251 _Id._ art. 26.
> 252 _See, e.g._ , U.S. Bankruptcy Code, 11 U.S.C. § 1129(a)(7)(ii) (2006).
> 253 Bundesgesetz über die Banken und Sparkassen [BANKG] [Federal Law on Banks, Savings and Loans] Nov. 8, 1934, SR 952, at art. 31(b) (Switz.), _available at_ http://www.admin.ch/ch/d/sr/9/952.0.de.pdf.
> 254 Zulauf, _supra_ note 248, at 1531 (Zulauf argues that in light of the expeditious nature of the procedure creditors are provided with too many rights).
> 255 _See infra_ Part IV.C.
> 256 _Id._
> 257 _See, e.g._ , Paul Anning & Matthias Terlau, _Maßnahmen gegen die Finanzmarktkrise – Großbritannien_ [Measures to tackle the financial crisis—UK], 55 Recht der Internationalen Wirtschaft 54 (2009) (Ger.); Höche, _supra_ note 7, at 51.
> 258 _See_ Banking Act, 2009, c.1, Explanatory Notes, ¶ 7 (U.K.), _available at_ http://www. legislation.gov.uk/ukpga/2009/1/notes.
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2008 in response to the Northern Rock failure.<sup>259</sup> The Banking (Special Provisions) Act of 2008, however, only provided a temporary regime allowing the Treasury to facilitate an orderly resolution of banks and maintain financial stability.<sup>260</sup> The Banking (Special Provisions) Act of 2008 lapsed on February 20, 2009,<sup>261</sup> and was replaced by the Banking Act 2009.<sup>262</sup>
The Banking Act 2009 (the Act) established a permanent special resolution regime (SRR) providing the authorities in the United Kingdom with the necessary tools to deal with banks in financial distress.<sup>263</sup> The Act provides for three distinct options under SRR: (1) a stabilization procedure focusing on asset transfer;<sup>264</sup> (2) a new bank insolvency procedure<sup>265</sup> focusing on orderly wind-down and liquidation;<sup>266</sup> and (3) a new bank administration procedure.<sup>267</sup> The decision to exercise a procedure under the SRR requires participation of the Tripartite Authorities: the HM Treasury, the Bank of England, and the Financial Services Authority (FSA).<sup>268</sup> The Tripartite Authorities coordinate, cooperate, and share information at each stage of the decision making process.<sup>269</sup>
Before choosing among the different resolution tools, the Bank of England must conduct a benefits analysis and consider the relative
> 259 Banking (Special Provisions) Act, 2008, c. 2 (U.K.), _available at_ http://www.legis lation.gov.uk/ukpga/2008/2/pdfs/ukpga_20080002en.pdf.
> 260 _See, e.g._ , Banking Act 2009 (Commencement No. 1) Order, 2009, c.14, Explanatory Note (U.K.), _available at_ http://www.legislation.gov.uk/uksi/2009/296/note/made; _see also_ Banking Act, 2009, c. 1, § 262 (U.K.), _available at_ http://www.legislation.gov.uk/ukpga/ 2009/1/section/262.
> 261 Banking Act, 2009, c. 1, §§ 262–64 (U.K.), _available at_ http://www.legislation. gov.uk/ukpga/2009/1/pdfs/ukpga_20090001_en.pdf.
> 262 Banking Act, 2009, c. 1 (U.K.), _available at_ http://www.legislation.gov.uk/ukpga/ 2009/1/pdfs/ukpga_20090001_en.pdf. _See also_ Banking Act 2009 (Commencement No. 3) Order, 2009, _available at_ http://www.legislation.gov.uk/uksi/2009/2038/contents/made; Banking Act 2009 (Commencement No. 4) Order, 2009, _available at_ http://www.legislation. gov.uk/uksi/2009/3000/contents/made.
> 263 Banking Act, 2009, c.1, §4 (U.K.), _available at_ http://www.legislation.gov.uk/ukpga/ 2009/1/section/4.
> 264 The stabilization procedures offers three different options, all of which focus on asset transfer: (1) transfer to a private sector purchaser, (2) transfer to a bridge bank, and (3) transfer to temporary public ownership.
> 265 Banking Act, 2009, c. 1, §§ 90–135 (U.K.).
> 266 _Id._ § 96.
> 267 _Id._ §§ 136–68.
> 268 The tripartite structure of the Supervisory Authorities of the U.K. financial system bears clear resemblance to the so-called “three key turn” under Dodd-Frank, _see, e.g._ , SKEEL, _supra_ note 1, at 130.
> 269 _See, e.g._ , HM Treasury, Banking Act 2009 Special Resolution Regime: Code of Practice, at 11, _available at_ http://www.hm-treasury.gov.uk/d/bankingact2009_code_of_ practice. pdf.
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advantage of the stabilization option over insolvency and wind-down.<sup>270</sup> The stabilization procedure may only be initiated after the Financial Services Authority (FSA) determines that three conditions are met.<sup>271</sup> First, the FSA must conclude that the institution is failing or unlikely to satisfy certain threshold conditions.<sup>272</sup> Second, the FSA must find that it is not reasonably likely that the bank will take or be able to take any action to meet the threshold conditions.<sup>273</sup> Third, the FSA must also decide that there is no realistic prospect that the bank will operate as an authorized deposit taker.<sup>274</sup> In addition to the aforementioned conditions, the Bank of England is required to establish that the stabilization procedure is necessary to protect the stability of the financial system of the United Kingdom, to ensure public confidence in the stability of the system, and to protect depositors.<sup>275</sup>
Stabilization may be the best option when transfers to a private sector purchaser, to a bridge bank, or temporary public ownership seem more cost effective or any such transfers would provide a better platform and starting point for reorganization.<sup>276</sup> However, insolvency may be the best option if contagion is a real threat and liquidation would affect overall system stability as well as creditors’ and depositors’ confidence. The factors in favor of exercising the insolvency procedure include, for example, considerations of whether a wind down would be fair and equitable or whether it would be in the public interest.<sup>277</sup> The new bank administration procedure is a procedure that specifically deals with the wind down of the insolvent residual bank that remains after a partial asset transfer to a bridge bank or private sector purchaser was executed.<sup>278</sup>
Although the Act does not explicitly refer to contingent capital, debtequity swaps or write-down tools, the Act does allow the use of company voluntary arrangements,<sup>279</sup> which may fulfill the very same purpose as any traditional debt-equity swap in bankruptcy.<sup>280</sup> In addition, one bank in the
> 270 _Id._ at 15, ¶ 5.18.
> 271 Banking Act, 2009, c.1, §7 (U.K.).
> 272 Financial Services and Market Act, 2000, c. 8, § 41 (U.K.), _available at_ http://www. legislation.gov.uk/ukpga/2000/8/contents.
> 273 _Id._
> 274 _Id._
> 275 _Id._ § 8.
> 276 _Id._ ¶¶ 5.19–5.22.
> 277 Banking Act, 2009, c. 1, §96 (U.K.), _available at_ http://www.legislation.gov. uk/ukpga/2009/1/section/262.
> 278 _Id._ ¶¶ 7.5–7.8, at 29. The administrative procedure is based on the administrative procedure under Schedule B1 of the Insolvency Act 1986.
> 279 _Id._ § 113.
> 280 _Id._ § 154; _see also_ Insolvency Act, 1986, c. 45, § 1(1) (U.K.) (“The directors of a company . . . may make a proposal under this Part to the company and to its creditors for a composition in satisfaction of its debts or a scheme of arrangement of its affairs (from here
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U.K., the Lloyd’s Banking Group<sup>281</sup> has already issued contingent capital and a second, Barclays<sup>282</sup> is attempting to do the same. The Lloyd’s Banking Group issued its contingent convertibles as enhanced capital notes, which are classified under Basel II as subordinate debt or lower tier-2 capital,<sup>283</sup> and do not require any additional regulatory validation. Furthermore, the U.K. is currently also considering additional banking law reform, which specifically centers on making the U.K. banking system more stable and more competitive.<sup>284</sup> Contingent capital may be used as a supplementary measure to create effective loss-absorbing debt.<sup>285</sup>
# _3. The German Banking Reorganization Act of 2010_
Late in 2011, Germany followed other European countries and enacted its own bank reorganization law.<sup>286</sup> The law includes three main sections addressed in this article: (1) the Financial Institution Reorganization Act ( _Kreditinstitute-Reorganisationsgesetz_ ),<sup>287</sup> (2) the Amendment to the German Banking Act ( _Kreditwesengesetz_ ),<sup>288</sup> and (3) the Law Establishing the Reorganization Fund for Financial Institutions ( _Restrukturierungsfondsgesetz_ ).<sup>289</sup>
Most noteworthy, the law creates a two-tiered approach to bank reorganization. The first tier focuses on voluntary reorganization procedures solely initiated by the financial institutions prior to or outside of
on referred to, in either case, as a ‘voluntary arrangement’).”).
> 281 JACKIE INEKE ET AL., MORGAN STANLEY RES., INVESTMENT GRADE CREDIT: EUROPEAN BANKS 25 (2011).
> 282 Patrick Jenkins, _Barclays Set to Follow Swiss Lead_ , FIN. TIMES (Feb. 14, 2011), http://www.ft.com/intl/cms/s/0/7f3c49ea-386e-11e0-959c00144feabdc0.html#axzz1 THW9e9vY. _See also infra_ , note 517 and accompanying text.
> 283 George M. Furstenberg, _Contingent Capital to Strengthen the Private Safety Net for Financial Institutions: Cocos to the Rescue_ 10 (Deutsche Bundesbank, Discussion Paper Series 2: Banking and Financial Studies No. 01/2011, 2011), _available at_ http://www.bundesbank.de/download/bankenaufsicht/dkp/201101dkp_b_.pdf.
> 284 INDEPENDENT COMMISSION ON BANKING, INTERIM REPORT CONSULTATION ON REFORM OPTIONS, EXECUTIVE SUMMARY 1 (2011).
> 285 _Id._ at 7.
> 286 Gesetz zur Restrukturierung und geordneten Abwicklung von Kreditinstituten, zur Errichtung eines Restrukturierungsfonds für Kreditinstitute und zur Verlängerung der Verjährungsfrist der aktienrechtlichen Organhaftung [RStruktG] [German Banking Reorganization Act], Dec. 9, 2010, BGBL I at 1900.
> 287 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900 (Ger.) [hereinafter [KredReorgG][Financial Institution Reorganization Act]].
> 288 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BUNDESGESETZBLATT, Titel I [BGBL. I] at 2776 [hereinafter [KWG] [German Banking Act]].
> 289 Gesetz zur Einrichtung eines Restrukturierungsfonds für Kreditinstitute [RStrukFG] [Law Establishing the Restructuring Fund for Financial Institutions], Dec. 9, 2010, BGBL. I at 1900 (Ger.).
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any formal insolvency proceeding. The second tier allows for increased early regulatory intervention by the Federal Financial Supervisory Authority (BaFin),<sup>290</sup> including asset transfer.<sup>291</sup> Analogous to the European Union Commission proposal,<sup>292</sup> the German law follows an early intervention strategy and attempts to address the issue of “too big to fail” or “too interconnected to fail.” As in the United States, the possibility of insolvency proved to be an insufficient threat for financial institutions during the height of the financial crisis in Germany. Financial institutions in Germany relied on state aid to be bailed out. The reliance on a public bail-out without the threat of any significant losses shared by management, shareholders and creditors may have created an asymmetric incentive for excessive risk taking by financial institutions.<sup>293</sup> The German law tries to address this failure by making market exit without state aid for financial institutions a credible and not merely a theoretical option.
# (a) The German Financial Institution Reorganization Act
The Financial Institution Reorganization Act ( _Kreditinstituten_ - _Reorganisationsgesetz_ )<sup>294</sup> establishes a reorganization procedure specifically aimed at financial institutions in Germany. This procedure is different from a formal insolvency procedure under German law. This is of particular importance because the German Insolvency Act (German Bankruptcy Code)<sup>295</sup> until recently continued to be primarily associated with liquidation as the only option for insolvent businesses and corporations.<sup>296</sup>
Unlike the U.S. Bankruptcy Code, the German Insolvency Act does
> 290 Bundesanstalt für Finanzdienstleistungsaufsicht [BaFin]; _see_ Finanzdienstleistungsaufsichtsgesetz [FinDAG] [Act Establishing the Federal Financial Supervisory Authority], Apr. 22, 2002, BGBL. I at 1310 (Ger.).
> 291 Gesetz zur Restrukturierung und geordneten Abwicklung von Kreditinstituten, zur Errichtung eines Restrukturierungsfonds für Kreditinstitute und zur Verlängerung der Verjährungsfrist der aktienrechtlichen Organhaftung [RStruktG] [German Banking Reorganization Act], Dec. 9, 2010, BGBL I at 1900. (The German Banking Reorganization Act includes two additional sections that are noteworthy. The first section qualifies the powers of the Federal Agency for Financial Market Stabilization (“Bundesanstalt für Finanzmarktstabilisierung (FSMA)”). The second amends the statute of limitations for the liability of board members of public limited companies for wrongful acts or negligence.)
> 292 _See supra_ Part III.B.2., note 163 and accompanying text.
> 293 Coffee, _supra_ note 26, at 798–99; _see_ Charles W. Calomiris & Richard J. Herring, _Why and How to Design a Contingent Convertible Debt Requirement_ 1 (Apr. 19, 2011) (Working Paper, on file Univ. of Pa.), _available at_ http://ssrn.com/abstract=1815406.
> 294 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900 (Ger.).
> 295 Insolvenzordnung [InsO] [German Insolvency Act], Oct. 5, 1994, BGBL. I at 2866.
> 296 Schuster & Westpfahl, _supra_ note 2, at 221; Lars Westpfahl, _Vorinsolvenzliches Sanierungsverfahren_ , 2010 ZEITSCHRIFT FÜR UNTERNEHMENS – UND GESELLSCHAFTSRECHT [ZGR] 385, 392 (Ger.).
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not clearly distinguish between Chapter 7 liquidation and Chapter 11 reorganization procedures. As a result, the German law traditionally stands much closer to the original meaning of bankruptcy, implying the idea of liquidating the debtor’s present assets and distributing these assets among creditors on an equitable basis.<sup>297</sup> In addition, the German regulatory intervention regime for financial institutions did not allow for any procedure that would have reliably permitted operating a bank as a going concern during the financial crisis. One of the few tools available was a socalled moratorium to restrict deposits and withdrawals or to temporarily close the bank for business.<sup>298</sup> It is unlikely that any one person or investor would conduct business with a financial institution limited in that manner.<sup>299</sup>
The German Financial Institution Reorganization Act entered into force on January 1, 2011, and is in part modeled after the Swiss Law and the UK Banking Act of 2008 and 2009.<sup>300</sup> However, some similarities to the U.S. Bankruptcy Code can also be observed.
The German law emphasizes a voluntary reorganization petition filed by the financial institution in distress with the Federal Financial Supervisory Authority ( _Bundesanstalt für Finanzdienstleistungsaufsicht_ (BaFin)).<sup>301</sup> The law further distinguishes between two independent procedures, the stabilization procedure ( _Sanierungsverfahren_ ) and the reorganization procedure ( _Reorganisationsverfahren_ ).<sup>302</sup>
> 297 In Germany, the opinion that a financial institution cannot be reorganized after petitioning for bankruptcy protection persists. _See_ Westpfahl, _supra_ note 300, at 392; Reinhard Bork, _Grundfragen des Restrukturierungsrechts – Prologue zu einer Reform des deutschen Insolvenzrechts_ , 2010 ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT UND INSOLVENZPRAXIS [ZIP] 397 . _See also_ Heribert Hirte, Bela Knopf & Sebastian Mock, Das Gesetz zur Erleichterung der Sanierung von Unternehmen (Teil I), 2011 Der Betrieb [DB], 632 (arguing that with the new reform of the German Insolvency Act, taking effect on March 1, 2012, the German legislature has now substantially increased creditors’ autonomy by introducing a broader business reorganization procedure). On the U.S. view, _see_ SKEEL, _supra_ note 1. For a discussion of the original meaning of bankruptcy, see CHARLES JORDAN TABB, THE LAW OF BANKRUPTCY 1039 (2d ed. 2009).
> 298 _See_ Gesetz über das Kreditwesen (Kreditwesengesetz) [KWG] [German Banking Act] Sept. 9, 1998, BGBL. I at 2776, as amended, § 47; _see also_ Schuster & Westpfahl, _supra_ note 2, at 392; Bork, _supra_ note 297, at 406 .
> 299 _See_ Schuster & Westpfahl, _supra_ note 2, at 221; _see also_ Gregor Bachmann, _Das neue Restrukturierungsrecht der Kreditinstitute,_ 2010 ZEITSCHRIFT FÜR BANKRECHT UND BANKWIRTSCHAFT [ZBB] 459 (Ger.); Jens-Hinrich Binder, _Institutionalisierte Krisenbewältigung bei Kreditinstituten_ , 2009 ZEITSCHRIFT FÜR BANKRECHT UND BANKWIRTSCHAFT [ZBB] 19, 21 (Ger.).
> 300 _See_ discussion _supra_ Part III.C.1. and III.A.2.
> 301 _See_ Gesetz zur Reorganisation von Kreditinstituten (KreditinstituteReorganizationsgesetz) [KredReorgG] [Financial Institution Reorganization Act] Dec. 9, 2010, BGBL. I, at 1900; _see also supra_ text accompanying note 294.
> 302 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, §1(1) (Ger.).
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# _(i) Stabilization Procedure_
The stabilization procedure ( _Sanierungsverfahren_ )<sup>303</sup> does not allow for a discharge of prior claims, the impairment of creditors’ rights, or any encroachment of third party rights without party consent.<sup>304</sup> However, the stabilization procedure permits the issuance of new shares, debt conversion, and debt rescheduling or debt subordination. The focus of the procedure is the voluntary participation of all creditor groups interested in recapitalizing the financial institution. Unlike the British stabilization procedure under the Banking Act 2009, the German stabilization procedure does not permit asset transfers at this stage and is controlled by the debtor. The main advantage of the stabilization procedure is the possibility for new lenders to receive a priming lien or super-priority for loans.<sup>305</sup> Super-priority is extended for the duration of three years and effective only in case of the commencement of liquidation proceedings during that period.<sup>306</sup> However, the total volume of all loans qualifying for super-priority during the stabilization procedure is limited to 10% of the bank’s own funds.<sup>307</sup>
Any financial institution in Germany<sup>308</sup> may initiate a stabilization procedure by voluntary petition.<sup>309</sup> The financial institution must notify the Federal Supervisory Authority of its existing financial distress and need for reorganization. Along with the petition, the institution must submit a detailed stabilization plan and nominate a trustee ( _Sanierungsberater_ ).<sup>310</sup>
> 303 _Id._ § 2.
> 304 _Id._ § 2(2).
> 305 _Id._ This is clearly very similar to U.S. Bankruptcy Code 11 U.S.C. § 364(d), which permits the debtor in possession, after court approval, to incur debt “secured by a senior or equal lien on property of the estate that is subject to a lien.” Note, however, if the financial institution files for bankruptcy within 3 years of the stabilization procedure, subordinated creditors may challenge the super-priority by claiming that the petitioner did not meet the conditions for the stabilization procedure and that the loan volume did not comply with the legal requirements. _See_ § 3(2). One is further reminded of the absolute priority rule under U.S. Bankruptcy Code 11 U.S.C. § 1129(a)(8). _See, e.g._ , David A. Skeel, _The Nature and Effect of Corporate Voting in Chapter 11 Reorganization Cases,_ 78 VA. L. REV. 461, 484 (1992).
> 306 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 2(2) (Ger.).
> 307 _Id._
> 308 Gesetz über das Kreditwesen (Kreditwesengesetz) [KWG] [German Banking Act] Sept. 9, 1998, BGBL. I at 2776, as amended, § 1(1). In Germany, financial institutions are required to maintain their headquarters in the country in which they are registered. _Id._ § 33(6); _see also_ art. 11, ¶ 2a; Council Directive 2006/48, _supra_ note 167, art. 17.
> 309 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 2(1), (Ger.).
> 310 _Id._ §2(2). Please note, the translation of “ _Sanierungsberater_ ” as trustee is not a literal translation. Instead, the literal translation as “advisor” appears somewhat misleading in the U.S. context. Both the “ _Sanierungsberater_ ” and the “ _Reorganisationsberater_ ” display powers and functions similar to a trustee under U.S. bankruptcy law. It is important to note, however, that a trustee under the U.S. Bankruptcy Law also has some additional and more
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Upon petition, the Authority reviews the petition, the proposed plan, and the qualifications of the nominated trustee. If all requirements are satisfied and no additional amendments to the plan are made, the Authority moves to petition<sup>311</sup> the competent court for approval of the reorganization under the stabilization procedure and requests the confirmation of the reorganization plan.<sup>312</sup> The court reviews the petition and the proposed plan independently for a second time.<sup>313</sup> If satisfied, the court confirms the plan and orders the appointment of the trustee.<sup>314</sup> Like the concept of a debtor in possession (DIP) under U.S. law,<sup>315</sup> the trustee may be a member of the board or other person directly associated with the financial institution petitioning for reorganization.<sup>316</sup> The main duty of the trustee is to supervise and implement the reorganization plan. The trustee may also act as an advisor to the troubled financial institution itself and directly participate in the corporate governance of the institution.<sup>317</sup>
Unlike U.S. law, the court’s confirmation of the plan does not complete the reorganization under the stabilization procedure. Instead, the successful implementation of the stabilization plan is a prerequisite.<sup>318</sup> During the implementation phase, the trustee continuously reports to the Federal Supervisory Authority and the court<sup>319</sup> and must provide detailed updates on the status of the implementation of the plan.<sup>320</sup> The court may further order additional measures if it deems them necessary and depending
far-reaching powers when compared to those of the “ _Sanierungsberater_ ” and _“Reorganisationsberater”_ under German law.
> 311 _Id._ § 2(3).
> 312 The competent court is the Higher Regional Court ( _Oberlandesgericht_ or OLG) in Frankfurt/Main. _See_ Finanzdienstleistungsaufsichtsgesetz [FinDAG] [Act Establishing the Federal Financial Supervisory Authority], Apr. 22, 2002, BGBL. I at 1310, § 1(3).
> 313 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 3(1) (Ger.)
> 314 _Id._ § 3(1). A court hearing is not required with the exception of cases in which the Federal Financial Supervisory Authority determined that the trustee nominated by the financial institution is not qualified. _See_ § 2(3); _see also_ § 1(3); § 1(2) (in conjunction with Zivilprozeßordnung [ZPO] [Federal Code of Civil Procedure], Dec. 5, 2005, as amended, §128, para. 4 (Ger.)); Gesetzentwurf Sept. 27, 2010, BT 17/3024, at 44 (Ger.).
> 315 11 U.S.C.A. §§ 1101, 1107 (2006).
> 316 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 3(3) (Ger.). In addition, the court may order the trustee to participate in the management of all business aspects of the financial institution during the level 1 reorganization procedure. _See id._ §5(1), no. 2. If the trustee is a member of the board or associated with the financial institution, the Federal Financial Supervisory Authority may, however, petition the OLG Frankfurt to replace him. Good cause is not required for replacement. _Id._ § 3(3).
> 317 _Id._ § 6(1).
> 318 _Id._ § 6(3).
> 319 _Id._ §§ 4(2), 6(2).
> 320 _Id._
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on the progress of plan implementation.<sup>321</sup> Specifically, the court can prohibit or restrict any activities of current executive officers or members of management, including present ownership.<sup>322</sup> The court may also appoint the trustee as an active member of management who participates in corporate governance during the reorganization.<sup>323</sup> It can restrict or prohibit withdrawals and the distribution of profits,<sup>324</sup> review existing remuneration and bonus agreements, and prohibit any payment for services not due.<sup>325</sup> Most importantly, the court can pre-empt any required approval of the corporate supervisory board in the context of the reorganization.<sup>326</sup>
To complete the reorganization of any financial institution under the stabilization procedure, the trustee is required to notify the Federal Financial Supervisory Authority first.<sup>327</sup> Following this notice, the trustee may notify the court of the completion, which then formally orders the conclusion of the procedure.<sup>328</sup> If the stabilization procedure did not return the financial institution to solvency and has proved unsuccessful, the financial institution may be liquidated or may petition for protection under the reorganization procedure, which is the second independent reorganization procedure under German law.<sup>329</sup>
> 321 _Id._ § 5.
> 322 _Id._ § 5(1), no. 1.
> 323 _Id._ § 5(1), no. 2.
> 324 _Id._ § 5(1), no. 3.
> 325 _Id._ § 5(1), no. 4.
> 326 _Id._ § 5(1), no. 5.
> 327 _Id._ § 6(3).
> 328 _Id._
> 329 _Id._ §§ 6(3), 7.
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# _(ii) Reorganization Procedure_
The reorganization procedure ( _Reorganisationsverfahren_ ) is only available to systemically important financial institutions.<sup>330</sup> All other financial institutions must be liquidated or are limited to petition for protection under the stabilization procedure.<sup>331</sup> Given the threat of failure of a systemically relevant bank, the main focus of the reorganization procedure is the systemic relevance of any financial institution in distress and the avoidance of any possible threat of contagion to the entire financial system in Germany. Under German Law, systemically relevant banks have two options for reorganization. The banks may either reorganize under the
> 330 _Id._ § 7(2); _see also_ Yvonne Stengel, _Das Kreditinstitute-Reorganisationsgesetz: Rechtliche Aspekte der zukünftigen Sanierung und Reorganisation von Kreditinstituten_ , DER BETRIEB, Supp. 4, 2011, at 11, 12; Karsten Müller-Eising et al., _Das BankenRestrukturierungsgesetz_ , BETRIEBS-BERATER, Jan. 10, 2011, at 66, 70; Höche, _supra_ note7, at 54; Manfred Obermüller, _Das Bankenrestrukturierungsgesetz – Ein kurzer Überblick über ein langes Gesetz_ , 3 NEUE ZEITSCHRIFT FÜR INSOLVENZRECHT 81, 88 (2011). Please note the term ”systemically relevant” may be used interchangably with the term “systemically important.”
> 331 [KredReorgG] [Financial Institution Reorganization Act] § 3(3); _see supra_ text accompanying note 333.
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stabilization procedure or the reorganization procedure. The stabilization procedure is not required as a precondition for the reorganization procedure. Instead, if the systemically relevant bank is convinced that reorganization under the stabilization procedure is not an option, the bank may instead immediately petition the German Federal Financial Supervisory Authority (BaFin) for protection under the reorganization procedure.<sup>332</sup> In terms of systemically important financial institutions the voluntary reorganization procedure has one specific shortcoming. Unlike the involuntary reorganization procedure initiated by the Supervisory Authority under the German Banking Act,<sup>333</sup> groups of financial institutions, financial holding groups, or conglomerates are not eligible to petition for protection under the voluntary reorganization procedure.<sup>334</sup> Financial institutions in group structures and holdings will qualify as systemically important institutions. In case of failure, these entities may also pose the highest risk to the stability of the financial markets.
The German reorganization procedure is similar to the stabilization procedure. It is independent of the German Insolvency Act,<sup>335</sup> while at the same time exhibiting similar aspects.<sup>336</sup> The procedure also compares to Chapter 11 under U.S. Bankruptcy Law<sup>337</sup> and the Arrangement Procedure under British Law.<sup>338</sup> For example, claims must be filed and validated.<sup>339</sup> Claims may be impaired, reduced, avoided, or deferred, and debt can be restructured without each individual creditor’s consent.<sup>340</sup> Nevertheless, employees’ income, retirement claims, and certain secured interests<sup>341</sup> are exempt and protected.<sup>342</sup> In that sense, the reorganization procedure for
> 332 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 7(1) (Ger.).
> 333 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776.
> 334 Schuster & Westpfahl, _supra_ note2, at 282–83.
> 335 _See_ KredReorgG [Financial Institution Reorganization Act]; _see_ Insolvenzordnung [InsO] [German Insolvency Statute] Oct. 5, 1994, BGBl. I 2866; _see_ Schuster & Westpfahl, _supra_ note 2, at 221; _see_ Lars Westpfahl, _Vorinsolvenzliches Sanierungsverfahren_ , 2010 ZEITSCHRIFT FÜR UNTERNEHMENS – UND GESELLSCHAFTSRECHT [ZGR] 385, 392 (Ger.).
> 336 _See_ Schuster & Westpfahl, _supra_ note 2, at 225.
> 337 _See, e.g.,_ U.S. Bankruptcy Act, 11 U.S.C. § 1101(1) (2006) (the concept of a debtor in possession (DIP) is exhibited in the German provisions of the Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 3(3) (Ger.), which in resemblance of a DIP permits that the appointed trustee (“ _Sanierungsberater_ ”) may be a member of the distressed bank).
> 338 Banking Act, 2009, c.1, §§ 113, 154 (U.K.).
> 339 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 14 (Ger.).
> 340 _Id._ at §12.
> 341 _Id._ Creditor claims protected by any voluntary or statutory deposit insurance cannot be impaired (“ _Einlagensicherungsfonds_ ”).
> 342 _Id._ One intention for the protection of employees’ and other rights was the desire to
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financial institutions under German Law provides many aspects of bankruptcy protection at a pre-insolvency stage. Generally, the impairment of creditors’ rights is permitted without consent.<sup>343</sup> But most important, the reorganization plan may permanently impair shareholders’ rights.<sup>344</sup> Assets may be sold or temporarily transferred,<sup>345</sup> equity may be increased while pre-emptive rights of shareholders are excluded from any increase,<sup>346</sup> and debt may be converted into equity (debt-equity swap).<sup>347</sup> The conversion of debt into equity does, however, always require explicit creditor consent.<sup>348</sup>
In addition, the German law includes a potentially controversial provision, allowing appropriate compensation of shareholders in case of impairment.<sup>349</sup> While a court-appointed expert determines the amount of compensation,<sup>350</sup> this procedure may run counter to the motives of the law.<sup>351</sup> Time is of the essence in any bank reorganization and the appointment of an expert may significantly slow down the procedure, making it less effective. Waiting for court approval may take time as will the analysis of shareholders’ claims by the expert. This is even more important as it is doubtful that creditors, at any time, may receive more than the value of their claims. Moreover, the impairment of shareholder rights generally seems appropriate when creditors’ rights are also written down or
avoid class-action suits. Whether or not this will be successful seems questionable, specifically knowing that any systemically relevant financial institution may have a vast number of creditors who are neither members of a protected class or may have any protected claims. _See_ Schuster &Westpfahl, _supra_ note 2, at 227.
> 343 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 8(3) (Ger.).
> 344 _Id._ at §§ 9–11.
> 345 _Id._ § 11(1). _See also_ Aktiengesetz [AktG][German Company Law], Sept. 6, 1965, BGBL. I at 1089, § 179(Ger.).
> 346 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 9(1) (Ger.).
> 347 _Id._
> 348 _Id._ Creditors’ consent may not be replaced by majority vote of its class in the creditors’ committee. Cramdown is not permitted. Furthermore, the limit on hold-out in § 19(1) does not apply. Regardless, it is debatable whether consent may be replaced if the debt instrument includes provisions permitting decision-making by majority vote in accordance with the Gesetz über Schuldverschreibungen aus Gesamtemissionen [SchVG] [Law on the Issuance of Debentures], July 31, 2009, BGBL. I at 2512, § 5(3), No. 5, as amended (Ger.). The majority vote under SchVG, § 5(4), does require a qualified vote of 75% of creditors entitled to vote, which goes beyond the simple majority vote required under KredReorgG, 19(1). _Id._ At the same time, while SchVG, §19 refers to the German Bankruptcy Code in case of insolvency, SchVG does not include any reference to the KredReorgG. _See also_ Schuster & Westpfahl, _supra_ note 2, at 227 (arguing in favor of filling the described gap through contract law and private ordering).
> 349 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL.I at 1900, § 9(2) (Ger.).
> 350 _Id._
> 351 _Id._ ; _see also_ Obermüller & Kuder, _supra_ note 297, at 2019.
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otherwise impaired.<sup>352</sup>
Like the stabilization procedure, the reorganization procedure also requires a voluntary petition.<sup>353</sup> The financial institution must petition the Federal Financial Supervisory Authority,<sup>354</sup> submit a reorganization plan, and nominate a trustee ( _Reorganisationsberater_ ).<sup>355</sup> After being notified, the Supervisory Authority must review the petition. The Authority has the discretion to submit the petition to the competent court after it determines that the existence of the financial institution is in danger, and that failure carries the risk of contagion and endangers the stability of the entire financial system.<sup>356</sup>
Under the German Banking Act,<sup>357</sup> a bank is deemed to be in danger of failure if the financial institution’s own funds,<sup>358</sup> core capital,<sup>359</sup> or modified available funds or liquidity<sup>360</sup> have fallen below 90% of the required thresholds<sup>361</sup> or if there is reason to believe that failure to comply with the required thresholds is imminent.<sup>362</sup> The German Banking Act provides five non-exhaustive examples for determining the risk of contagion and systemic threat.<sup>363</sup> The Financial Supervisory Authority may consider: (1)
> 352 _See, e.g._ , Gesetzentwurf der Bundesregierung, Gesetz zur weiteren Erleichterung der Sanierung von Unternehmen [ESUG] [Draft Legislation of the German Government, Law to Simplify the Reorganization of Corportions], Feb. 23, 2011, § 245(3), No. 1, _available at_ http://www.bmj.de/SharedDocs/Downloads/DE/pdfs/RegE_ESUG_23022011.pdf?__blob=p ublicationFile.
> 353 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 7 (Ger.).
> 354 _Id._ § 7(1).
> 355 _Id._ § 7(5).
> 356 _Id._ § 7(2).
> 357 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776.
> 358 _Id._ § 48b(1), no. 1 (“Going-concern risk shall be presumed to exist if (1) the available tier 1 capital represents less than 90 per cent of the tier 1 capital required pursuant to section 10(1) . . .”).
> 359 _Id._ § 48b(1), no. 2 (“Going-concern risk shall be presumed to exist if. . .(2) the modified available capital represents less than 90 per cent of the own funds required pursuant to section 10(1) . . .”).
> 360 _Id._ § 48b(1), no. 3 (“Going-concern risk shall be presumed to exist if. . .(3) the liquid assets available to the institution in a maturity band defined by the statutory order pursuant to section 11(1) and sentence 2 represent less than 90 per cent of the payment obligations that are callable in the same maturity band, or . . .”).
> 361 _Id._ § 48b(1), nos. 1–3.
> 362 _Id._ § 48b(1), no. 4 (“Going-concern risk shall be presumed to exist if. . .(4) the facts are known which warrant the assumption that a shortfall pursuant to numbers 1, 2 and 3 will occur if no corrective measures are taken; this is the case, in particular if a loss may be anticipated based on the institution’s earnings situation, as a result of which the conditions of numbers 1, 2, or 3 would be met.”).
> 363 _Id._ § 48b(2) (“Systemic risk shall be deemed to exist if there is concern that the credit institution’s going-concern risk could have a significantly negative impact on other financial
_Contingent Capital in European Union Bank Restructuring_ 32:191 (2012)
the nature and amount of the bank’s liabilities toward other financial institutions,<sup>364</sup> (2) the amount of deposits,<sup>365</sup> (3) the nature, amount and risk composition assumed by the bank while taking current and relevant market conditions into consideration,<sup>366</sup> (4) the bilateral netting of the bank,<sup>367</sup> and (5) the financial market conditions and possible consequences of any failure for other financial institutions, the financial market, and the confidence in the stability of the financial markets by depositors and other market participants.<sup>368</sup>
Given this weighting, the German Banking Act seems to primarily consider the violation of regulatory requirements for the determination of system relevance and contagion but does not necessarily emphasize insolvency. This is very similar to the stabilization procedure under the SRR of the British Banking Act of 2009. Of further importance is the German focus on market reception and confidence in the viability of a financial institution.<sup>369</sup> The German law does not stipulate any threshold conditions or determining factors for market reception or confidence. As a result, it will always be difficult to determine any of these factors in a reliable and objective manner. In addition, while the Supervisory Authority has broad discretion to determine the merit of a petition under the reorganization procedure,<sup>370</sup> it is unclear<sup>371</sup> whether the Supervisory Authority will have the sole discretion to determine a threat or whether it will have to consult the German Central Bank.<sup>372</sup> In this context, while the German legislature was influenced by the British Banking Act of 2009, it did not develop a similar system of tripartite supervisory authorities or a system similar to the “three key turns” under Dodd-Frank.<sup>373</sup>
sector enterprises, on the financial markets or on the general confidence of depositors and other market participants in the proper functioning of the financial system. Particular account shall be taken of: (1) the nature and scope of the credit institution’s liabilities to other institutions and other financial sector enterprises, (2) the volume of the deposits received by the institution, (3) the nature, scope and composition of the risks entered into by the institution as well as the conditions on the markets on which such positions are traded, (4) interconnectedness with other financial market participants, (5) the conditions on the financial markets, in particular the consequences which market participants expect the institution’s collapse to have on other financial sector enterprises, on the financial market and on the confidence of depositors and market participants in the proper functioning of the financial market.”).
> 364 _Id._ § 48b(2), no. 1.
> 365 _Id._ § 48b(2), no. 2.
> 366 _Id._ § 48b(2), no. 3.
> 367 _Id._ § 48b(2), no. 4.
> 368 _Id._ § 48b(2), no. 5.
> 369 _Id._
> 370 _See_ Gesetzentwurf Sept. 27, 2010, BT 17/3024 (Ger.).
> 371 Schuster & Westpfahl, _supra_ note 2, at 225.
> 372 _Id._
> 373 _See_ , _e.g_ ., SKEEL, _supra_ note 1, at 130 (explaining the concept of the “Three key turn”
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If the Financial Supervisory Authority determines that the requirements for the reorganization procedure are fulfilled, it submits the petition to the competent court.<sup>374</sup> The court must consider whether the requirements of the procedure have been met, including the formal requirements of the reorganization plan, such as the establishment of the creditors’ committees and their voting rights.<sup>375</sup> After a hearing in which the Supervisory Authority, the German Central Bank, and the petitioning financial institution are heard, the court may issue a declaratory order establishing that the petitioning bank is in danger of failing with a risk of contagion. Simultaneously the court may also order the immediate reorganization and appoint the trustee ( _Reorganisationsberater_ ).<sup>376</sup> All court orders are sealed and the hearings are conducted in private.<sup>377</sup> In addition, the court may stay termination rights of all obligations and contracts, such as derivatives, swaps or repurchasing agreements. The stay starts on the date of the initial petition to the Financial Supervisory Authority and terminates at the end of the next business day following that petition date.<sup>378</sup> Assuming the petition was filed on a Friday, termination rights and close-out-netting may be stayed for up to 96 hours.<sup>379</sup>
The reorganization plan is comparable to a Chapter 11 plan, but yet
as part of the basic framework of bail-out under the Dodd-Frank Act); _but see_ Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776, §§ 8–8e.
> 374 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 7(5) (Ger.) (“Soweit für das Reorganisationsverfahren nichts anderes bestimmt ist, gelten die Vorschriften über das Sanierungsverfahren entsprechend. § 46d Absatz 1 bis 4 des Kreditwesengesetzes gilt entsprechend. Für Kreditinstitute, die in anderer Rechtsform als einer Aktiengesellschaft verfasst sind, gelten die folgenden Vorschriften sinngemäß.”).
> 375 _Id._ § 7(1), (5).
> 376 The trustee, in analogy to the stabilization procedure, may be installed as a member of the management of the failing financial institution. At the same time, part of the trustee’s role is to work toward and help in the acceptance of the reorganization plan. This establishes a hybrid role of the trustee that is very similar to the debtor in possession (DIP) under U.S. Bankruptcy Law. While this has been very successful in the United States, many in Europe continue to fear a conflict of interest. _See, e.g._ , Frank Frind, Unabhängigkeit – Kein Wert Mehr an Sich? - Die Auswahl und Berufliche Stellung des Insolvenzverwalters Nach den Neuen Regelungsentwürfen zur Änderung der InsO, NZI 705 (2010).
> 377 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 22(3) (Ger.).
> 378 _Id._ § 13.
> 379 _Id._ (“Schuldverhältnisse mit dem Kreditinstitut können ab dem Tag der Anzeige nach § 7 Absatz 1 bis zum Ablauf des folgenden Geschäftstages im Sinne des § 1 Absatz 16b des Kreditwesengesetzes nicht beendet werden. Eine Kündigung gegenüber dem Kreditinstitut ist in diesem Zeitraum ausgeschlossen. Die Wirkung sonstiger in diesem Zeitraum eintretender Beendigungstatbestände ist bis zu seinem Ablauf aufgeschoben. Abweichende Vereinbarungen sind unwirksam . . .”). Gesetz über das Kreditwesen [KWG] [German Banking Act] Sept. 9, 1998, BGBL. I at 2776, 16(b) (“Der Geschäftstag eines Systems umfasst Tag und Nachtabrechnungen und beinhaltet alle Ereignisse innerhalb des üblichen Geschäftszyklus eines Systems.”).
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different. The trustee verifies creditors’ claims, but he also directly contacts the creditors informing them of their rights. The plan requires the establishment of a creditor committee consisting of various creditor classes. Generally, the plan is drawn up by the creditors and may include the transfer of assets or even the liquidation of the bank.
Plan approval requires a simple majority of all creditors in each class and a majority exceeding 50% of the sum of the claims in each class.<sup>380</sup> If a class of creditors objects to the plan, the objecting class can be crammed down. However, cramdown is only possible if the majority of all other classes have approved the plan. Regardless of cram down, the objecting class is allowed an adequate share in the distribution of the plan,<sup>381</sup> where the principle of “no creditor worse-off than in liquidation” applies.<sup>382</sup>
As a separate class, shareholders are also required to approve the plan.<sup>383</sup> The trustee convenes an extraordinary shareholder meeting during which the plan is approved.<sup>384</sup> Shareholder approval requires a simple majority vote of the attending shareholders if no pre-emptive rights or equity positions are impaired by the plan.<sup>385</sup> If the latter is the case, either a two-thirds majority of the attending shareholders or a simple majority of the shareholders representing 50% of the share capital is required.<sup>386</sup> Should shareholders reject the plan a cramdown option is also available.<sup>387</sup> Shareholder approval is assumed if the majority of all classes of creditors approved the plan.<sup>388</sup>
Once approved by the creditor committee, the court confirms the plan and concludes the reorganization procedure.<sup>389</sup> This is similar to the Chapter 11 reorganization procedure<sup>390</sup> but unlike the stabilization procedure in which the trustee has the power and responsibility to initiate conclusion proceedings.<sup>391</sup>
> 380 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 22(3) (Ger.).
> 381 _Id._ § 19(2).
> 382 _Id._
> 383 _Id._ § 18.
> 384 _Id._ § 18(2). The main reason to require a shareholder meeting is the European Union Council Directive 77/91, 1976 O.J. (L 26) 1 (EC) and various European Court of Justice cases, e.g., Case C-19/90 & C-20/90, Karella v. Minister for Indus., Energy, and Tech., 1991 E.C.R. I-2691; Case C-381/89, Syndesmos v. The Greek State, 1992 E.C.R. I-2111; Case C- 441/93, Pafitis v. Trapeza Kentrikis Ellados AE, 1996 E.C.R. I-1347.
> 385 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 18(3) (Ger.).
> 386 _Id._
> 387 _Id._ § 19(4) (cramdown).
> 388 _Id._
> 389 _Id._ § 22(1).
> 390 U.S. Bankruptcy Code 11 U.S.C. § 1141(a) (2006).
> 391 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution
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(b) Regulatory intervention powers and procedures
The amendments to the German Banking Act<sup>392</sup> significantly increase the Federal Financial Supervisory Authority’s (BaFin) intervention powers.<sup>393</sup> The Supervisory Authority will likely exercise primary oversight over the reorganization of systemically relevant banks by relying on the powers established in these amendments, including the involuntary petition for reorganization. Furthermore, in context of these increased powers the likelihood that any systemically important bank may file a voluntary petition under the German stabilization or reorganization procedure seems remote at best. This is confirmed by the fact that the German Banking Act, unlike the German Financial Institutions Reorganization Act, also applies to groups of financial institutions,<sup>394</sup> financial holdings,<sup>395</sup> and conglomerates<sup>396</sup> headquartered in Germany.
> Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 6(3) (Ger.).
> 392 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776.
> 393 Dirk Auerbach & Kristen Donner, _Änderungen bei den aufsichtlichen Eingriffinstrumenten des KWG durch das Restrukturierungsgesetz_ , DER BETRIEB, Jan. 4, 2011, at 17.
> 394 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776, § 480 (“Measures relating to subordinated enterprises of groups of institutions”).
> 395 _Id._ § 48p (“Measures at financial holding groups”).
> 396 _Id._ § 48q (“Measures at financial conglomerates”).
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The intervention powers of the Authority are very broad<sup>397</sup> and include a variety of new reporting duties<sup>398</sup> and supervisory powers.<sup>399</sup> For example, the Authority may prohibit or limit withdrawals and distribution of profits,<sup>400</sup> prohibit or limit balance sheet measures to offset net loss or show net profit,<sup>401</sup> limit payments of returns on funds,<sup>402</sup> order risk reduction as it relates to certain types of activities,<sup>403</sup> prohibit or limit the payment of bonuses,<sup>404</sup> and require a financial institution to draft a restructuring plan.<sup>405</sup> Under the new law the Authority may also transfer part or all of the systemically relevant assets from a distressed bank to a bridge bank.<sup>406</sup>
> 397 Auerbach & Donner, _supra_ note 393, at 17–18; Stengel, _supra_ note 330, at 15; Höche, _supra_ note 7, at 53.
> 398 _See, e.g.,_ Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776, § 45(1), no. 1 (providing that BaFin may order the institution “to produce a substantiated description of the development of its key business activity over a period of at least three years, including projected balance sheets and projected profit and loss accounts, as well as of the development of its prudential ratios and to submit said description to BaFin and the Deutsche Bundesbank”).
> 399 _Id._ § 45(1), nos. 2–4 (providing that BaFin may order the institution “to review measures for improving protection against or reducing the material risks identified by the institution and the associated risk concentrations and to report these to BaFin and the Deutsche Bundesbank, including consideration of strategies for exiting from individual business areas or severing the institution or group entities”).
> 400 _Id._ § 45(2), no. 1 (providing that under certain circumstances, BaFin can “prohibit or limit withdrawals by the proprietors or partners and the distribution of profits”).
> 401 _Id._ § 45(2), no. 2 (providing that under certain circumstances, BaFin can “prohibit or limit balance sheet measures that serve to offset a net loss or to show a net profit”).
> 402 _Id._ § 45(2), no. 3 (providing that under certain circumstances, BaFin can “order that the payment of all types of returns on own funds instruments apart from those pursuant to section 10(5a) be fully or partly waived without replacement if they are not fully covered by a net profit for the year”).
> 403 _Id._ § 45(2), no. 5 (providing that under certain circumstances, BaFin can “order the institution to take measures to reduce risks insofar as they arise from certain types of activities and products or through the use of certain systems”).
> 404 _Id._ § 45(2), no. 6 (providing that under certain circumstances, BaFin can “prohibit the payment of variable remuneration components or limit such payment to a certain proportion of the net result for the year; this shall not apply to variable remuneration components specified in a collective agreement or, within its scope of application, in an agreement between the social partners applying the provisions of the collective agreement, or on the basis of a collective agreement, in a plant-level or service agreement”).
> 405 _Id._ § 45(2), no. 7. BaFin also has the power under KWG § 45c(1) to appoint a special administrator or trustee (“ _Sonderbeauftragter_ ”) who may directly participate in the corporate governance of the failing bank and may even replace the CEO of the bank. _Id._ § 45c(1). _See, e.g._ , Auerbach & Donner, _supra_ note 393, at 18–20.
> 406 The concept of asset transfer is not new under German law and follows a similar concept established for insurance companies and mortgage lenders. _See_ Gesetz über die Beaufsichtigung der Versicherungsunternehmen [VAG] [Insurance Act], Dec. 17, 1992, BGBL I at 2, as amended Mar. 1, 2011, § 14 (Ger.); Pfandbriefgesetz [PfandBG] [German Mortgage Banking Law], May 22, 2005, BGBL. I at 1373, as amended, § 32 (Ger.). Under
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Toxic assets and additional liabilities may be left behind in the residual or bad bank, which will be liquidated. A transfer order can only be executed if the financial “institution’s viability as a going concern is jeopardized (going-concern risk)”<sup>407</sup> and the stability of the financial system is threatened.<sup>408</sup> In addition, the order must be necessary. The transfer cannot be ordered if the systemic risk could be avoided in an equally certain manner in any other way.<sup>409</sup> The Authority has discretion to set a deadline before issuing any transfer order.<sup>410</sup> If a deadline is set, the failing bank must present a viable recovery plan before the end of the deadline. The plan must show that the bank is able to avert the going-concern risk within 6 weeks after the deadline and prove that long-term viability is certain. The plan must also include proof of adequate funding and sufficient liquidity.<sup>411</sup> Considering the turmoil of the financial crisis, it is doubtful that the Authority will ever have the privilege to exercise this discretion as time will be of the essence to prevent contagion.<sup>412</sup>
A bridge bank is required to be a legal person<sup>413</sup> headquartered in Germany<sup>414</sup> and must fulfill the same legal requirements that apply to the organization of the distressed or transferring bank.<sup>415</sup> The bridge bank may be any financial institution willing to participate in the rescue of the failing
the VAG and the PfandBG a transfer requires a contractual agreement between transferee and transferor. This is not required under the KWG
> 407 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL.I at 2776, § 48a(2), no. 1.
> 408 _Id._
> 409 _Id._ § 48a(2), no. 2 (“the systemic risk arising from going concern risk cannot be eliminated in an equally certain manner in any other way than through the transfer order.”).
> 410 _Id._ § 48c(1) (“If the risk situation persists, BaFin can, before issuing the transfer order, set the credit institution a time limit within which the credit institution must present a viable plan indicating in what way going-concern risk will be averted (recovery plan).”). _See also_ Manuel Lorenz, _Der Regierungsentwurf eines Gesetzes zur Restrukturierung und geordneten Abwicklung von Kreditinstituten – Überblick und erste Einordnung_ , 13 Neue Zeitschrift für Gesellschaftsrecht [NZG], 1046, 1051 (2010).
> 411 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL.I at 2776, § 48a(2), no. 2 (Ger.).
> 412 _See,_ Schuster & Westpfahl, _supra_ note 2, at 283.
> 413 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776, § 48c(5), no. 1 (“The transfer order shall not specify a legal entity as the transferee legal entity if (1) the legal entity is not constituted in the form of a legal person.”).
> 414 _Id._ § 48c(5), no. 2 (“the legal entity has its head office outside Germany”). It is highly questionable whether this requirement conforms to the Law of the European Union, namely the principal of free movement of capital, TFEU, art. 63.
> 415 _Id._ (“If the credit institution is constituted in the legal form of a corporation, the transferee legal entity shall be constituted in the same legal form.”). _See also id._ § 48g(6) (“Where the transferee legal entity does not have the authorisation required pursuant to section 32 to maintain the transferred operations as a going concern, the transfer order shall be deemed to be authorisation for the transferee legal entity with the same scope as the authorisation granted to the credit institution.”).
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bank or, in the alternative, the bridge bank may be specifically organized as a special purpose vehicle under government control.<sup>416</sup> The bridge bank must consent to any transfer of assets and must give consideration to the distressed bank if the overall value of transferred assets is positive.<sup>417</sup> Generally, the consideration will include shares of the bridge bank, but may also consist of cash.<sup>418</sup> However, because the required consideration must only be commensurate with the value of the transferred assets,<sup>419</sup> there may often be significant disagreements over the issue of valuation.<sup>420</sup> This is of particular significance if shares of the bridge bank are given as consideration requiring the need to evaluate the value of the bridge bank as well.<sup>421</sup> The calculation of the value of the transferred assets may not, however, include support payments from public sources or include payments provided as part of any public bail-out.<sup>422</sup> Conversely, if the value of the transferred assets is negative, the distressed or residual bank is required to compensate the bridge bank in cash.<sup>423</sup>
> 416 Gesetz zur Einrichtung eines Restrukturierungsfonds für Kreditinstitute [RStrukFG] [Law Establishing the Restructuring Fund for Financial Institutions], Dec. 9, 2010, BGBL. I 1900, 1921, as amended §§ 5–7 (Ger.); _see also_ Karsten Müller-Eising et al., _supra_ note 330, at 69.
> 417 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776, § 48d(1) (The transfer order shall provide for a consideration to the credit institution if the overall value of the assets to be transferred is positive. The consideration shall consist of capital shares in the transferee legal entity. If granting capital shares is unreasonable for the transferee legal entity or threatens to defeat the purpose of the transfer order, the consideration shall be determined in cash.).
> 418 _Id._
> 419 _Id._ at § 48d(2) _._
> 420 Schuster & Westpfahl, _supra_ note 2, at 284.
> 421 _Id.; see also_ Gregor Bachmann, _Das neue Restrukturierungsrecht der Kreditinstitute_ , Zeitschrift für Bankrecht und Bankwirtschaft [ZBB] 459, 467 (2010).
> 422 Gesetz über das Kreditwesen [KWG] [German Banking Act], Sept. 9, 1998, BGBL. I at 2776, § 48d(2) (At the time at which the transfer order is issued, the consideration must be commensurate with the value of the transferred assets. Any support payments from the Restructuring Fund or government agencies that were provided or promised to avert or overcome the going-concern risk shall not be taken into consideration in the credit institution’s favor. Central bank operations that are concluded on standard terms and conditions do not constitute support payments within the meaning of sentence 2.).
> 423 _Id._ § 48d(6) (Where the aggregate value of the assets to be transferred is negative, the transfer order shall stipulate that the credit institution must compensate the transferee legal entity in cash (compensation liability). The maturity and insolvency seniority of the compensation liability shall be based on the maturity and seniority of the liabilities included in the spin-off. In the case of differing maturities or seniority levels, the relationship of the liabilities with different maturity or seniority levels to one another shall be the determining factor. Subsections (2) to (4) shall apply _mutatis mutandis_ .).
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After the transfer is complete and effective, the bridge bank is jointly and severally liable to all creditors;<sup>424</sup> the liability includes both the transferred assets as well as those assets remaining with the distressed bank.<sup>425</sup> Regardless, the liability of the bridge bank is limited to the amount of the claim a creditor would have received in a liquidation of the distressed bank prior to the transfer.<sup>426</sup> Furthermore, the bridge bank is only liable to the extent that creditors cannot satisfy their claims through the distressed bank.<sup>427</sup>
The effectiveness of the transfer may also trigger additional supervisory powers for the Supervisory Authority. For example, the Authority may direct and instruct the distressed bank on how to exercise the voting rights on the shares received as consideration from the bridge
> 424 _Id._ § 48h(1) (The credit institution shall be liable for the liabilities included in the spin-off only in the amount of the sum which the creditor would have received had the credit institution been wound up and no spin-off had taken place. Liability shall exist only to the extent that the creditor cannot obtain satisfaction from the transferee legal entity.).
> 425 _Id._ § 48k(3) (Notwithstanding § 48e(1), the transfer order may stipulate that only part of the assets, liabilities and legal relationships shall be transferred to the transferee legal entity (partial transfer). In this case, notwithstanding § 48e(1) no. 2, the transfer order shall specify only those spin-off assets that are covered by the spin-off; alternatively, it may specify those spin-off assets that will remain with the institution.).
> 426 _Id._ § 48h(1).
> 427 _Id._
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bank.<sup>428</sup> In addition, the bridge bank shares can only be sold or transferred after approval by the Authority,<sup>429</sup> and the Authority has the power to monitor the viability of the transferred business assets.<sup>430</sup>
# (c) The Law Establishing the Reorganization Fund for Financial Institutions
The German Banking Reorganization Act of 2010 also established a reorganization fund (the fund) for financial institutions ( _Restrukturierungsfondsgesetz_ ).<sup>431</sup> The fund is a so-called Federal Special Fund established under Art. 110, section 1 of the German Constitution ( _Grundgesetz_ ) and is part of the Federal Agency for Financial Market Stabilization (FMSA).<sup>432</sup> The fund has no legal rights, but has the capacity to sue and be sued.<sup>433</sup> The purpose of the fund is the stabilization of financial markets in Germany.<sup>434</sup> As part of its powers, the fund is charged with establishing bridge banks and initiating public ownership in these bridge banks, if necessary.<sup>435</sup> The fund also guarantees claims against any bridge bank<sup>436</sup> and may provide funding for bridge banks.<sup>437</sup> In order to avoid issues of moral hazard and public bail-out, financial institutions do not have a legal claim for support payment from the fund. Rather, only bridge banks or private sector banks that aid in the recovery of a distressed bank may receive financial support from the fund.<sup>438</sup>
The most controversial issues surrounding the establishment of the fund is the source of its funding and its size. While the Federal Ministry of Justice can supplement the available funds with loan guarantees of up to 20
> 428 _Id._ § 48l(2) (“BaFin can instruct the credit institution to exercise the voting rights to which it is entitled at the shareholders’ meeting of the transferee legal entity in a particular manner . . .”).
> 429 _Id._ § 48l(3) (“[T]he credit institution may not, without prior written permission from BaFin, dispose of the capital shares in the transferee legal entity to which it is entitled.”).
> 430 _Id._ § 48m(1) (“On request, the transferee legal entity shall promptly provide BaFin with information on all circumstances required to assess the viability of restructuring for the business units transferred to the transferee legal entity.”).
> 431 Gesetz zur Einrichtung eines Restrukturierungsfonds für Kreditinstitute [RStrukFG] [Law Establishing the Restructuring Fund for Financial Institutions], Dec. 9, 2010, BGBL. I at 1900 (Ger.) [hereinafter [RStrukFG] [Restructuring Fund Law]].
> 432 _Id._ § 1. _See also_ Satzung der Bundesanstalt für Finanzmarktstabilisierung [FMSASatz] [Statute of the Federal Agency for Financial Market Stabilization] Feb. 21, 2011, BGBL. I at 272, §§ 1–3 (Ger.).
> 433 [RStrukFG] [Restructuring Fund Law] § 9.
> 434 _Id._ § 3(1).
> 435 _Id._ § 5.
> 436 _Id._ § 6.
> 437 _Id._ § 7.
> 438 _Id._ § 4. _See also_ Schuster & Westpfahl, _supra_ note 2, at 287.
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million euro,<sup>439</sup> the reorganization fund is primarily financed by means of a bank levy on all German banks.<sup>440</sup> The German government assessed the rates of these bank levies for the first time in July of 2011.<sup>441</sup> The proposed levies are re-evaluated each year and rise in line with the business volume of each bank.<sup>442</sup> Financial institutions with liabilities of up to 300 million euro do not contribute any funds.<sup>443</sup> Banks with a business volume above 300 million euros must contribute two basis points with a maximum of six will be levied on each bank.<sup>444</sup> In addition, banks’ open futures rates will account for 0.03 basis points of the levy.<sup>445</sup>
The German levy system is problematic because financial institutions without systemic relevance are required to contribute to the fund, yet are not able to receive fund support payments.<sup>446</sup> The fact that all banks, regardless of systematic relevance, will at least indirectly benefit from stable financial markets by avoiding another crisis is the only possible argument in support of a general levy requirement. The levy may also impact the competitiveness of German banks in more general terms, especially if German banks with subsidiaries or branches in other European countries are required to contribute to rescue funds in these other countries. As a result, a more harmonized, Union-wide solution could be preferable. Another point of contention is the size of the fund with a maximum volume of 70 billion euros.<sup>447</sup> It is questionable if this amount will suffice during a financial crisis. The availability of these funds and the time it will take to raise them is of even greater concern.<sup>448</sup>
# IV. CONTINGENT CAPITAL IN BANK RESTRUCTURING
Policy makers and legislative bodies in Europe and the United States<sup>449</sup>
> 439 [RStrukFG] [Restructuring Fund Law], § 12(6).
> 440 _Id._ § 2.
> 441 Press Release, Federal Ministry of Justice, Cabinet Adopts Restructuring Fund Ordinance (July 21, 2011) (Ger.), _available at_ http://www.bundesfinanzministerium. de/nn_103466/EN/Topics/Financial-markets/Articles/20110721-RestructuringFund.html?__nnn=true.
> 442 _Id._
> 443 _Id._
> 444 _Id._
> 445 _Id._
> 446 _See also_ Wolfgang Schön, Alexander Hellgardt, & Christine Osterloh-Konrad, Bankenabgabe und Verfassungsrecht – Teil I: Verfassungsrechtliche Zulässigkeit als Sonderabgabe, WM - Zeitschrift für Wirtschafts- und Bankrecht, 2010, 2145 (Ger.).
> 447 Gesetz zur Einrichtung eines Restrukturierungsfonds für Kreditinstitute [RStrukFG] [Law Establishing the Restructuring Fund for Financial Institutions], Dec. 9, 2010, BGBL. I at 1900, § 12(10) (Ger.).
> 448 _See, e.g._ , Stengel, _supra_ note 330, at 16.
> 449 Edmund L. Andrews, _Bernanke, in Nod to Critics, Suggests Board of Regulators_ , N.Y. TIMES, Oct. 2, 2009, at B3 (quoting Bernanke stating, “that giant financial players
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are increasingly recognizing the possible use of contingent capital.<sup>450</sup> One of the main benefits of contingent capital could be its role in helping to avoid insolvency and stabilizing financial markets. Although many academics support the use of contingent capital, disagreements on the design features<sup>451</sup> and the mandatory or voluntary nature of contingent capital persist.<sup>452</sup> Determining the optimal design features of contingent capital may require a concerted effort of policy-makers worldwide. A common denominator on how to use contingent capital to avoid a future crisis could be, generally speaking, for a financial institution to issue a
might be forced to adopt contingent capital,” and noting that the contingent capital is “gaining popularity within the Fed.”); Daniel K. Tarullo, Federal Reserve Governor, Speech at the Exchequer Club in Washington, D.C. to the Federal Reserve: Confronting Too Big to Fail (Oct. 21, 2009), _available at_ http://www.federalreserve.gov/newsevents/speech/ tarullo20091021a.htm (commenting that contingent capital is an effort “worth pursuing”). In the E.U., see IP/11/915, _supra_ note 8 (“The proposal will require banks to hold more and better capital to resist future shocks by themselves.” The proposal also translates the bank capital agreed to in the Basel III agreement.).
> 450 CRD IV Regulation, _supra_ note 10, at arts. 48–52.
> 451 Coffee, _supra_ note 26, at 806 (promoting contingent capital as an alternative to bankruptcy or bail-outs, Coffee suggests a contingent capital design where “(1) the conversion ratio would be deliberately designed to protect the debt holders from loss by instead diluting the existing equity holders; and (2) the debt security would convert into a fixed return preferred stock with cumulative arrearages and significant voting rights.”); FLANNERY, _supra_ note 24; Robert L. McDonald, _Contingent Capital with a Dual Price Trigger_ 20 (Northwestern University Kellogg Sch. of Mgmt., Working Paper, Apr. 11, 2011), _available at_ http://ssrn.com/abstract=1553430; George Pennacchi, _A Structural Model of Contingent Bank Capital_ (Fed. Reserve Bank of Cleveland, Working Paper 10-04, Apr. 2010), _available at_ http://ssrn.com/abstract=1595080); George Pennacchi et al., _Contingent Capital: The Case for COERCs_ 9, 13 (INSEAD Working Paper No. 2010/89/FIN, Oct. 27, 2010), _available at_ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1656994; <u>Squam</u> Lake Working Group, _supra_ note 24, at 4 (2009); Suresh Sundaresan & Zhenyu Wang _, Design of Contingent Capital with a Stock Price Trigger for Mandatory Conversion_ 4 (Fed. Reserve Bank of N.Y., Working Paper, Apr. 30, 2010), _available at_ http://www.newyorkfed.org/research/economists/wang/BankDebtTrigger.pdf (recognizing that a value transfer between equity and contingent capital “disturbs equilibrium by moving the stock price up or down, depending on the conversion ratio specified,” and that the proposals typically ensure that there is no value transfer at maturity, but do not ensure there is no transfer before maturity).
> 452 Coffee, _supra_ note 26, at 808 (“[W]ork even when regulatory oversight fails and a crisis sneaks in under the regulators’ radar screen.”); Letter Comment from Mary Frances Monroe, Vice President, Office of Regulatory Policy, American Bankers Association, to Basel Committee on Banking Supervision 3 (Oct. 1, 2010) (on file with Am. Bankers Ass’n) (Mandatory contingent capital would “hinder unduly the flexibility of banks to create a capital structure that best meets the needs of the bank and its investors . . . . Other banks may not be able to, or may find it inefficient to, issue contingent or convertible instruments for a variety of reasons – including, for instance, restrictions under their chartering instruments, tax issues related to the deductibility of payments on the instruments, lack of market access, or insufficient investor interest. These banks should not be harmed by a perception that they are not as well capitalized as others simply because they need to or choose to meet their capital needs through other acceptable channels.”).
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certain percentage of its long-term debt capital as convertible debt securities that convert into equity when triggered at the point of financial weakening of the financial institution.<sup>453</sup>
Among the potential benefits of implementing contingent capital is the minimization of moral hazard, avoidance of financial contagion, and limitation of systemic risk by financial institutions that may be too big to fail. Contingent capital is an automatic mechanism for increasing capital while reducing debt with the long-term benefit of lowering leverage. Contingent capital may also support general risk control in financial institutions<sup>454</sup> and may contribute to minimizing moral hazard by holding shareholders responsible and internalizing bank failure costs. Moreover, given the threat of loss due to conversion and the implicit dilution of stock holdings, contingent capital has the potential to reduce incentives for shareholders to encourage management to take higher risks for higher returns.
Using contingent capital may also be less expensive and less time consuming than bankruptcy and could establish a preferable mix of incentives by creating ownership stakes in the holders of contingent capital. The holders of contingent capital may become actively involved in the reorganization of the financial institution after contingent capital has been converted. Comparing contingent capital to equity, contingent capital could be cheaper, provided the interest expense is deemed tax deductible. It would be a non-dilutive form of financing that would not bring the threat of change of control with it. If deemed tax deductible, the tax advantages of contingent capital are likely the same as those in debt financing. Tax authorities may also treat contingent capital as a hybrid.
> 453 Coffee, _supra_ note 26, at 795, 833; McDonald, _supra_ note 451;FLANNERY, _supra_ note 24.
> 454 Raghuram G. Rajan, _Too Systemic to Fail: Consequences, Causes, and Potential Remedies_ 28 (Bank for Int’l Settlements, BIS Working Paper No. 305, Mar. 2010), _available at_ http://www.bis.org/publ/work305.pdf (“[I]nstalling sprinklers . . . . When the fire threatens, the sprinklers will turn on.”). _Contra_ Christian Koziol & Jochen Lawrenz, _Contingent Convertibles: Solving or Seeding the Next Banking Crisis?_ , J. BANKING & FIN. 5, 35 (2011) (Koziol and Lawrenz suggest that CoCo bonds may “create negative externalities, in the sense that the (destabilizing) risk-shifting problem induced by CoCo bonds may overcompensate the (stabilizing) effect of providing a pre-committed recapitalization to banks.” Through the use of a “dynamic continuous-time framework,” the authors conclude that ”the beneficial impact of CoCo bonds crucially hinges on the assumption if bank managers have substantial discretion over the bank’s business risk.” The authors contend that if complete contracts can be written, CoCos are clearly beneficial, however, if allowing for incomplete contracts, the authors argue that “CoCo bonds always distort risk taking incentives. Therefore, equity holders have incentives to take excessive risks. Thus, CoCos may be an example where individually rational decisions can have systemically undesirable outcomes.”).
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# A. European Commission Proposal
The European Commission has proposed a framework for prevention, crisis management and bank resolution.<sup>455</sup> The Commission issued a working document for discussion and consultation purposes,<sup>456</sup> which distinguishes between a comprehensive and targeted approach.<sup>457</sup> The Commission also proposed the recognition of contingent capital as “Additional Tier 1 instruments.”<sup>458</sup>
Analogous to the FSB<sup>459</sup> and the Vickers Report,<sup>460</sup> the European Commission proposed haircuts for all equity supplemented by a debt conversion of both subordinated and senior debt at a point when the financial institution is in danger of insolvency. In other words, the Commission recognizes the benefits of contingent capital but only as a supplement to a system of regulatory write-down tools or bail-inables. The Commission presupposes a statutory power to write down subordinated debt and to convert subordinate debt into equity.<sup>461</sup> It is in this latter context that the European Commission has proposed its comprehensive and targeted approach for supplementary debt write-down tools.
Under the comprehensive approach, national resolution authorities could be given a statutory power to write down or convert to equity “all senior debt deemed necessary to ensure the credit institution is returned to solvency” upon the occurrence of a pre-defined trigger event.<sup>462</sup> Under this proposal, national resolution authorities would also have the discretion to determine which classes of debt would be converted or written down and at what conversion rate.<sup>463</sup> In addition, the size of the write down would depend on the financial situation of the institution, its assets and liabilities,
> 455 The Internal Market and Services Directorate General (DG MARKT) is one of the directorates which make up the European Commission. A main role of the DG Market is to coordinate the Commission’s policy on the European Single Market. Its primary function is to seek the removal of unjustified obstacles to trade and in the field of services and financial markets. _See,_ DG Internal Market and Services, _available at_ http://ec.europa.eu/dgs/ internal_market/index_en.htm (April 14, 2012).
> 456 DG Working Document, _supra_ note 10.
> 457 _Id._
> 458 CRD IV Regulation, _supra_ note 10.
> 459 FIN. STABILITY BD., REDUCING THE MORAL HAZARD POSED BY SYSTEMICALLY IMPORTANT FINANCIAL INSTITUTIONS: FSB RECOMMENDATIONS AND TIME LINES 1 (Oct. 2010), _available at_ http://www.financialstabilityboard.org/publications/r_101111a.pdf (noting that the risk associated with SIFIs includes moral hazard – their interconnectedness can cause “significant disruption to the wider financial system and economic activity.”).
> 460 U.K. INDEPENDENT COMMISSION ON BANKING, INTERIM REPORT: CONSULTATION ON REFORM OPTIONS 180–81 (Apr. 2011), _available at_ http://s3-eu-west-1.amazonaws.com/ htcdn/Interim-Report-110411.pdf.
> 461 DG Working Paper, _supra_ note 10, at 87.
> 462 _Id._
> 463 _Id._
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and the amount of funds needed to restore viability and maintain market confidence.<sup>464</sup> The Commission argues that the proper functioning of credit markets requires that short-term debt, as defined by a specified maximum maturity,<sup>465</sup> swap repo and derivative counterparties, other trade creditors, as well as retail and wholesale deposits and secured debt should be excluded.<sup>466</sup> In summary, the Commission considers the comprehensive approach adequate to “create maximum flexibility for the resolution authorities to return an institution to viability, install new management, and implement a recovery or restructuring plan to retain market confidence and access to funding.”<sup>467</sup>
The alternative to the comprehensive approach is the targeted approach.<sup>468</sup> Under the targeted approach national resolution authorities would require financial institutions to issue a fixed amount of debt that prequalifies for write-down or conversion to equity on a pre-defined statutory trigger.<sup>469</sup> The Commission suggests that the pre-qualified amount of debt could include a fixed minimum for all institutions between 4 and 19 per cent of risk-weighted assets.<sup>470</sup> Although these numbers seem unrealistically high, the Commission seems to justify the proposal with an attempt to ensure that “debt contracts are not able [to] evolve in a way that would reduce the effectiveness of the regime and would provide certainty for both the institution and creditors about what would happen in a resolution.”<sup>471</sup>
The European Banking Authority (EBA) will most likely play a dominant role in ensuring that similar and consistent treatment of prequalified debt is harmonized at the level of the European Union. Some commentators have suggested that the market reaction to the European Commission proposal was negative.<sup>472</sup> Uncertainties regarding knock-oneffect and interaction with other proposals (including Basel III) are among
> 464 _Id._ at 88.
> 465 _Contra_ Coffee, _supra_ note 26, at 833 (arguing that the amount of contingent capital that should be triggered ought to be defined by short-term debt).
> 466 DG Working Paper, _supra_ note 10, at 88.
> 467 _Id._
> 468 _Id._ at 89.
> 469 _Id._ (“[s]uch debt would need to include a contractual term which would specify that the relevant resolution authority could use a statutory power to write down the debt when the institution meets the trigger conditions for entry into resolution.”).
> 470 _Id._ n. 24.
> 471 _Id._ at 89.
> 472 EUROPEAN BANKING FEDERATION (EBF), POSITIONING IN RESPECT OF THE EU COMMISSION CONSULTATION ON TECHNICAL DETAILS FOR A POSSIBLE EU FRAMEWORK FOR BANK RECOVERY AND RESOLUTION 1, 5, 53–61 (Mar. 3, 2011), _available at_ http://www.ebffbe.eu/uploads/documents/positions/BankingReg/3%20March%20201-EBF_Response_to_ COM_Crisis_Management_Consultation%20%28final%29.pdf.
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the most serious open questions.<sup>473</sup> Given the complexities that contingent capital presents from a regulatory and taxation standpoint, many open issues will have to be addressed.<sup>474</sup>
The implementation of the debt write-down in the European Commission proposal also has the potential of increasing funding costs for financial institutions<sup>475</sup> and could make funding more volatile.<sup>476</sup> Contingent capital securities could also promote greater concentration of larger banks with the associated anti-competitive results.<sup>477</sup> On the other hand, the targeted approach could contractually set terms of conversion and timing that results in greater clarity and more accurate pricing.<sup>478</sup>
> 473 PETER M. WERNER & EDWARD MURRAY, INT’L SWAPS & DERIVATIVES ASSOC. (ISDA), POSSIBLE EU FRAMEWORK FOR BANK RECOVERY & RESOLUTION 1, 19–21(Mar. 3, 2011), _available at_ http://www.isdadocs.org/speeches/pdf/EU_CrossBorderCrisisMgmt_ISDA Response_Mar11.pdf (ISDA responds to the EU’s “comprehensive EU framework for troubled and failing banks” and avers the following with regard to the debt write-down (“bail-in”) proposal: (1) international coordination for debt write-down is essential; (2) the proposal presents numerous complex issues such as interaction with other proposals (including Basel III), regulatory issues, and tax issues; (3) the legislative timetable is “unrealistic” and debt write-down should be tabled until some of these issues have been resolved because of the need for international coordination and the complex issues presented. ISDA also contends that the debt write-down proposal would impact derivative transactions and argues that derivatives exposures “are not an appropriate form of debt to make subject to the write-down power.” And lastly, ISDA emphasizes the importance of clarification and certainty with regard to the scope of the debt write-down regime.).
> 474 _Id._ at 19–20.
> 475 ASSOC. OF BRITISH INSURERS (ABI), THE ABI’S RESPONSE: DG INTERNAL MARKET SERVICES: TECHNICAL DETAILS OF A POSSIBLE EU FRAMEWORK FOR BANK RECOVERY AND RESOLUTION 1, 5–6 (Jan. 2011), _available at_ http://www.abi.org.uk/Media/Consultation_ Papers/Consultation_Responses.aspx [hereinafter ABI] (ABI notes that regardless of its members’ positive or negative views, the implementation of the debt write-down will increase banks’ funding costs. Though the concept may provide greater certainty and discretion to regulators, it will result in greater uncertainty in the market. Because this creates greater risk, it will increase costs, and this will “have the unintended effect of promoting greater concentration into larger banks.” Ultimately, there is concern that the increased complexity will affect implementation and will not benefit an efficient funding sector.).
> 476 DAVID HISCOCK, INT’L CAPITAL MKT. ASSOC. (ICMA), RESPONSE SUBMISSION RE: EUROPEAN COMMISSION CONSULTATION PAPER – TECHNICAL DETAILS OF A POSSIBLE EUROPEAN CRISIS MANAGEMENT FRAMEWORK 1, 2, 4 (Mar. 3, 2011), _available at_ http://www.icmagroup.org/ICMAGroup/files/c7/c7a2c1bd-f34c-4aaa-b75b-5ab648c 16345.pdf (ICMA expresses concern that the bail-in regime will effectively increase rates for depositors by encumbering higher quality assets. Banks will be confronted with increased competition for retail deposits, thus increasing the use of other forms of secured funding. As a result of increased rates and competition, funding will become less stable. ICMA notes that one positive aspect of the targeted approach is that investors may precisely express investment preferences. This creates “a fairer transition to a new regime than simply imposing bail-in on existing investors.”).
> 477 ABI, _supra_ note 475, at 6.
> 478 ASS’N. FOR FIN. MARKETS IN EUR. (AFME), RESPONSE TO THE EUROPEAN COMMISSION
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Financial industry representatives on the national and international level have criticized the Commission proposal. Some suggest contractual arrangements for contingent capital should be triggered before a statutory bail-in is applied.<sup>479</sup> Others oppose the proposed resolution tools involving full or partial write-downs on the basis that they could threaten covered bond markets.<sup>480</sup> The key to the proposal seems to be the treatment of secured debt, derivatives, and covered bonds.<sup>481</sup>
In the context of the comprehensive approach, some point to higher costs of senior debt instruments and their marketability and propose assurances that would guarantee that the priority claim of capital instruments remains intact when covering loss.<sup>482</sup> In the context of the
CONSULTATION ON TECHNICAL DETAILS OF A POSSIBLE EU FRAMEWORK FOR BANK RECOVERY & RESOLUTION 54–56 (2011), _available at_ http://www.afme.eu/AFME/ What_We_Do/Final%20AFME%20Response.pdf (pointing out the two approaches to debt write-down proposed by the European Commission: (1) the “targeted” approach, which “would require banks to hold a fixed amount of ‘bail-in-able’ debt but that would exclude senior debt from the scope of any write-down;” and (2) the “comprehensive” approach, which would allow RAs to write-down senior debt. AFME states its members primarily support the “ease and clarity of the targeted approach, in relation to the comprehensive approach, although neither option is completely without difficulties.”. The targeted approach could contractually set terms of conversion and timing resulting in greater clarity and prices that are a more accurate reflection of risk. AFME also recommends that the targeted approach be coordinated with Basel III, and ultimately, that the protection provided be studied. AFME suggests that the comprehensive approach could be available to regulators as a “last resort” when the targeted approach proves inadequate.). _See also_ DG Working Document, _supra_ note 10, at 89 (“Targeted approach **:** An alternative to a comprehensive approach would be for resolution authorities to require credit institutions to issue a fixed volume of ‘bail-in able’ debt which, in addition to the power to write off all equity, and either write off existing subordinated debt or convert it into an equity claim, could be written down or converted into equity on a statutory trigger.”).
> 479 SWED. MINISTRY OF FIN ET AL., SWEDISH ANSWERS TO THE DG INTERNAL MARKET AND SERVICES WORKING DOCUMENT “TECHNICAL DETAILS OF A POSSIBLE EU FRAMEWORK FOR BANK RECOVERY AND RESOLUTION” 44 (2011), _available at_ http://www.riksbank.com /templates/YearList.aspx?id=20368&all=1 (Generally asserts that the untested bail-in regime should not be relied upon. If the bail-in tool can be shown to be effective, it may be useful as a wind-down tool. Specifically, it argues that the wind-down tools should include a statutory bail-in tool to “impose market discipline on unsecured debt holders as they can impose losses on those creditors.” Further, it suggests that “[c]ontractual bail in instruments must trigger before a statutory bail in is applied. Regulatory capital instruments must bear losses before any higher ranking debt.” Such a scheme should still leave “the troubled banks well capitalized.”).
> 480 REALKREDITRÅDET (ASS’N OF DANISH MORTG. BANKS), CONSULTATION RESPONSE CONCERNING TECHNICAL DETAILS OF A POSSIBLE EU FRAMEWORK FOR BANK RECOVERY AND RESOLUTION 2, 9 (Mar. 7, 2011), _available at_ http://www.realkreditraadet.dk/Holdninger/ H%C3%B8ringssvar.aspx?M=News&PID=1755&NewsID=543.
> 481 _Id._
> 482 EUROPEAN ASS’N OF PUBLIC BANKS (EAPB), COMMENTS OF THE EUROPEAN ASSOCIATION OF PUBLIC BANKS ON THE TECHNICAL DETAILS OF A POSSIBLE EU FRAMEWORK FOR BANK RECOVERY AND RESOLUTION 8–9, _available at_ http://www.eapb.eu/file?fle=6701.
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comprehensive approach, some point to higher costs of senior debt instruments and their marketability, and propose assurances that would guarantee that the rank of these capital instruments in bankruptcy remains intact and equal (" _parri passu"_ ) to all other unsecured and unsubordinated debt.<sup>483</sup>
# B. Basel Committee Proposal
The Basel Committee on Banking Supervision (The Basel Committee), suggested in an initial proposal that internationally active banks be required to have a clause in their debt instruments that, upon the occurrence of a triggering event, provides for a mandatory write-off or conversion to common stock.<sup>484</sup> The proposal recommended ensuring the loss absorbency of regulatory capital at the point of non-viability.<sup>485</sup> The proposal also required that such a clause could not conflict with the respective legal environment of each respective European Union Member State.<sup>486</sup>
After the revision of the European regulatory structure, many commentators assumed the newly created European Banking Authority (EBA) would allow national regulators to use their existing Tier 1 definitions.<sup>487</sup> The European Commission, however, proposed a regulation on prudential requirements for credit institutions and investment firms.<sup>488</sup> The proposal in effect harmonized the requirements for Tier I capital.<sup>489</sup> Almost simultaneously, the Basel Committee decided to use retained earnings and ordinary shares rather than contingent capital to meet
> 483 _Id._
> 484 Basel Comm. on Banking Supervision, Proposal to Ensure the Loss Absorbency of Regulatory Capital at the Point of Non-Viability (2010), _available at_ http://www.bis.org/ publ/bcbs174.pdf.
> 485 _Id._ at 4–5 (“Proposed minimum requirement Scope and post trigger instrument 1. All non-common Tier 1 instruments and Tier 2 instruments at internationally active banks must have a clause in their terms and conditions that requires them to be written-off on the occurrence of the trigger event. 2. Any compensation paid to the instrument holders as a result of the write-off must be paid immediately in the form of common stock (or its equivalent in the case of non- joint stock companies). 3. The issuing bank must maintain at all times all prior authorisation necessary to immediately issue the relevant number of shares specified in the instrument’s terms and conditions should the trigger event occur. 4. The trigger event is the earlier of: (1) the decision to make a public sector injection of capital, or equivalent support, without which the firm would have become non-viable, as determined by the relevant authority; and (2) a decision that a write-off, without which the firm would become non-viable, is necessary, as determined by the relevant authority. 5. The issuance of any new shares as a result of the trigger event must occur prior to any public sector injection of capital so that the capital provided by the public sector is not diluted.”).
> 486 _Id._ at 3.
> 487 David Enrich, _Europe Blinks on Bank Test – Regulators Seen Easing ‘Stress’ Gauge, Undercutting Effort to Restore Confidence_ , WALL ST. J., Mar. 9, 2011, at A1, A10.
> 488 CRD IV Regulation, _supra_ note 10, arts. 48a, 49(1)(n), 51(b).
> 489 _Id._
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heightened capital requirements for SIFIs.<sup>490</sup> Thereafter, the European Commission proposed harmonization in the context of Tier 1 capital, allowing convertible instrument capital as Tier 1 capital.<sup>491</sup> The proposal would permit contingent capital securities as an “Additional Tier 1 instrument.”<sup>492</sup> This could be a first step toward a basic framework for harmonized contingent capital standards. This framework could enable European Union Member States to provide national regulatory guidance on contingent capital or allow private ordering of contingent capital designs.<sup>493</sup>
# C. Swiss Approach
The Swiss approach to contingent capital distinguishes between high and low triggers for contingent capital securities (CCS) and allocates a maximum of 9 percent of the total core capital to CCS with predefined triggers.<sup>494</sup> The Swiss Act on Banks and Savings Banks<sup>495</sup> defines “criteria and determination of systemic importance”<sup>496</sup> in Article 8 before defining “convertible capital” in Article 13.<sup>497</sup>
The Swiss approach in Article 13 could perhaps become a model for other European legislators and perhaps even the U.S. legislator. It gives the
> 490 Louis Meera, _Europeans Lose Out to U.S. with Basel Committee’s Contingent Capital Vote_ , BLOOMBERG, June 27, 2011, http://www.bloomberg.com/news/2011-06-26/baselcommittee-decision-on-contingent-capital-backs-u-s-stance.html (noting that this was a victory for U.S. regulators over their European counterparts and quoting Karen Shaw Petrou, managing partner of Washington-based Federal Financial Analytics Inc., a bank consulting firm: “Europeans were pushing for a mix of common equity and contingent capital and they lost at a global level.”).
> 491 CRD IV Regulation, _supra_ note 10, art. 49(1)(n) (the proposed regulation defines one form of “Additional Tier 1 instruments” as a capital instrument in which “the provisions governing the instruments require the principal amount of the instrument to be written down, or the instruments to be converted to Common Equity Tier 1 instruments, upon the occurrence of a trigger event.”). Additional Tier 1 capital is defined in the proposed regulation. _See_ CRD IV Regulation, _supra_ note 10, art. 49(1)(n).
> 492 CRD IV Regulation _, supra_ note 10, arts. 48a, 49(1)(n), 51(b).
> 493 On the calibration of market mechanisms, private ordering, and mandatory rules see Wulf A. Kaal, _Initial Reflections on the Possible Application of Contingent Capital in Corporate Governance_ , 26 NOTRE DAME J.L. ETHICS & PUB. POL’Y 101 (2012) [hereinafter Kaal Corporate Governance]; _see also_ Wulf A. Kaal, _Contingent Capital in Executive Compensation_ (on file with author) [hereinafter Kaal Executive Compensation] (on the use of contingent capital for dynamic regulation of financial institutions).
> 494 SWISS CONFEDERATION, FINAL REPORT OF THE COMMISSION OF EXPERTS FOR LIMITING THE ECONOMIC RISKS POSED BY LARGE COMPANIES 59–60 (2010), _available at_ http://www.sif.admin.ch/dokumentation/00514/00519/00592/index.html?lang=en.
> 495 BUNDESGESETZ ÜBER DIE BANKEN UND SPARKASSEN [BANKG] [FEDERAL LAW ON BANKS, SAVING AND LOANS] Nov. 8, 1934, SR 952 (Switz.), _available at_ http://www.admin.ch/ch/d/sr/9/952.0.de.pdf (as of Mar. 1, 2012).
> 496 _Id._ art. 8.
> 497 _Id._ art. 13.
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Board of Directors of systemically important banks<sup>498</sup> the authority to issue “mandatory convertible bonds within the scope of the provisions of the articles of incorporation”<sup>499</sup> but requires disclosure of the “conversiontriggering event.”<sup>500</sup> It also envisions the use of tranches and multiple trigger events.<sup>501</sup>
The Swiss Banking Act requires that CCS are offered to shareholders and participation certificate holders in proportion to their then current holdings.<sup>502</sup> If, however, the market environment requires it or if CCS are issued at a discount to facilitate a complete placement, a shareholders’ meeting may authorize the issuance of CCS to non-shareholders.<sup>503</sup> If these requirements are fulfilled, the shareholders’ meeting of the respective SIFI would in effect allow the exclusion of “subscription rights of the shareholders and participation certificate holders.”<sup>504</sup>
# D. The English Proposals
In the United Kingdom, Lloyds Bank was the first bank to issue contingent capital securities in 2010.<sup>505</sup> The issuance, through a non-U.S. bond-exchange offer, raised £8.5 billion of contingent core Tier 1 and core
> 498 _Id._ art.7(2) (“The purpose of the provisions of this section, in concert with the generally applicable statutory banking regulations, is to reduce further the risks posed by systemically important banks to the stability of the Swiss financial system, to ensure the continuation of economically vital functions and to avoid government bail-out measures.”). Given the structure of the BankG, the use of contingent capital with sequential triggers seems to be possible in the Swiss model, although certain limitations in the Swiss model might require adjustments for contingent capital with sequential triggers. _See_ Wulf A. Kaal & Christoph Henkel, _Contingent Capital with Sequential Triggers_ , 49 San Diego. L. Rev. 221 (Mar. 2012) [hereinafter Kaal & Henkel Sequential].
> 499 _Id._ art. 13(3).
> 500 _Id._ art. 13(5).
> 501 _Id._ art. 13(3)(b) (“The trigger event or, in the case of tranches, the trigger events.”).
> 502 BUNDESGESETZ ÜBER DIE BANKEN UND SPARKASSEN [BANKG] [FEDERAL LAW ON BANKS, SAVING AND LOANS] Nov. 8, 1934, SR 952, art. 13(4) (Switz.), _available at_ http://www.admin.ch/ch/d/sr/9/952.0.de.pdf (as of Mar. 1, 2012).
> 503 _Id._
> 504 _Id._ English translation of an earlier version of the Swiss Banking Act at art. 12(2) (on file with authors) (“The Board of Directors can cancel the subscription rights of shareholders or participation certificate holders for good cause, particularly if this helps with the rapid and smooth placement of shares or participation certificates.”). _See also_ art. 13(1) (“The General Meeting can decide on a contingent increase in the share or participation capital by stipulating in the articles of incorporation that the debt securities arising from mandatory convertible bonds are converted into shares or participation certificates if the trigger event occurs.”). _See also_ FINAL REPORT OF THE COMMISSION OF EXPERTS FOR LIMITING THE ECONOMIC RISKS POSED BY LARGE COMPANIES 67–68 (Sept. 30, 2010), _available at_ http://www.sif.admin.ch/dokumentation/00522/00715/index.html?lang=en&___= (“The Board of Directors can exclude or limit the former shareholders’ pre-emptive subscription rights for good cause.”).
> 505 von Furstenberg, _supra_ note 283, at 10.
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Tier 1 notes.<sup>506</sup> As a result of investor demand for the exchange offer exceeding $2.7 billion, which was almost three times the amount on offer, Lloyds issued the maximum of $986 million of enhanced capital notes.<sup>507</sup> The enhanced capital notes were designed to convert into equity in case Lloyds’ core Tier 1 capital ratio fell below 5 percent.<sup>508</sup> Barclays, a bank based in the United Kingdom, has also contemplated the issuance of contingent capital securities to the public.<sup>509</sup> Barclays has already issued contingent capital to its executives but with minimal governance improvements.<sup>510</sup>
Other banks in the United Kingdom are considering the issuance of contingent capital if and when regulatory guidance is provided.<sup>511</sup> While insolvency law in the United Kingdom already allows for so-called “Company Voluntary Arrangements,” an instrument comparable to traditional debt-equity swaps,<sup>512</sup> the Bank of England did propose precautionary and non-viability contingent capital.<sup>513</sup> Many open questions still need to be addressed in the context of contingent capital instruments.<sup>514</sup>
# E. German Draft Amendments to the Corporation Act
While German law does not provide per se for contingent capital securities, a debt-equity swap between creditors and financial institutions in reorganization is already an integral part of the German Financial Institution Reorganization Act.<sup>515</sup> Unlike contingent capital securities, however, a debt-equity swap requires creditors’ consent under the German Law.<sup>516</sup> The German Ministry of Justice seems to have recognized this as a shortcoming
> 506 Kathy Sandler & Margot Patrick _, Lloyds Raises $14 Billion in Bond Exchange,_ WALL ST. J., Nov. 24, 2009, at C2.
> 507 _UPDATE 1-Lloyds gets Strong Demand for U.S. Bond Exchange_ , REUTERS, Dec. 8 2009, http://www.reuters.com/article/2009/12/08/lloyds-idUSGEE5B70QB20091208.
> 508 _Id._
> 509 Jenkins, _supra_ note 282. Another bank that has issued contingent capital is the Dutch Rabobank.
> 510 _See_ Kaal Executive Compensation, _supra_ note 493.
> 511 _See_ Kaal Corporate Governance, _supra_ note 493.
> 512 _See, e.g._ , Banking Act, 2009, c. 1, §§ 113, 154 (U.K.). _See also_ Insolvency Act, 1986, c. 45 (U.K.).
> 513 BANK OF ENG., FINANCIAL STABILITY REPORT 56 (2010), _available at_ http://www.bankofengland.co.uk/publications/fsr/2010/fsrfull1012.pdf (suggesting that contingent capital will result in higher loss-absorbency and proposing two types of contingent capital: precautionary and non-viability).
> 514 INDEPENDENT COMMISSION ON BANKING, INTERIM REPORT: CONSULTATION ON REFORM OPTIONS 180–83 (2011) (U.K.), _available at_ http://s3-eu-west-1.amazonaws.com/ htcdn/Interim-Report-110411.pdf (questioning who would buy contingent capital and the “possible dynamic effects” on banks “at or near to the trigger point”).
> 515 Gesetz zur Reorganisation von Kreditinstituten [KredReorgG] [Financial Institution Reorganization Act], Dec. 9, 2010, BGBL. I at 1900, § 9(1) (Ger.).
> 516 _Id._
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and proposed amending the German Corporation Act.<sup>517</sup> The proposed amendments seem to facilitate the implementation of contingent capital and would provide a statutory basis for the issuance of contingent capital securities in Germany.<sup>518</sup> Implementing the amendments would require substantial changes in other areas of German law.<sup>519</sup> This may not be easily achieved unless required under European Union law and internationally recognized. The implementation of the amendments to the German Corporation Act could, to a large extent, also depend on the work of the Basel Committee and its use of contingent capital in Basel III.<sup>520</sup>
# V. CONTINGENT CAPITAL DESIGN—TRIGGERING EVENT
The efficient calibration of triggering events is central to the design of contingent capital. The optimal design for a trigger event that converts debt into equity is unclear.<sup>521</sup> Scholars discuss various trigger events that may be
> 517 Referentenentwurf des Bundesministeriums der Justiz, Gesetz zur Änderung des Aktiengesetzes, Nov. 11, 2010 (Ger.), _available at_ http://www.der-betrieb.de/content/ pdfft,0,395158; _see also_ Hans Diekmann, Andre Nolting, Aktienrechtsnovelle 2011, Neue Zeitschrift für Gesellschaftsrecht (NZG) 6, 8–9 (2011); Karsten Müller-Eising, Aktienrechtsnovelle 2011 – Änderungen zur Vorzugsaktie und zum bedingten Kapital für Wandelanleihen, Gesellschaftsund Wirtschaftsrecht (GWR) 591, 593 (2010); Handelsrechtsausschuss des Deutschen Anwaltsvereins Stellungnahme zum Referentenentwurf eines Gesetzes zur Änderung des Aktiengesetzes (Aktienrechtsnovelle 2011), Neue Zeitschrift für Gesellschaftsrecht (NZG) 217, 220 (2011).
> 518 The reform of the German Corporation Act is centered around Sections 192, 194, and 221 AktG. Under prior German Law, the instrument of “Mandatory Convertible Bonds” (“Pflichtwandelschuldverschreibung”) had already been recognized.
> 519 Steffen Schneider & Markus Söhnchen, Rettung von Kreditinstituten in der Krise durch Contingent Convertible Bonds - Pflichtwandelschuldverschreibungen für Banken (“CoCo-Bonds”), FORUM-INSTITUT FÜR MANAGEMENT GMBH, _available at_ http://www.forum-institut.de/fileadmin/data/Bereich_3/Rettung_von_Finanzinstituten_in_ der_Krise.pdf. _Id_ . (opining that the new Act would require a change of the Kreditwesengesetz [Banking Act], the Limited Act, the Corporation Act, the Insolvency Act, and the Schuldverschreibungsgesetzes.).
> 520 _Id. See also_ discussion _supra_ Part IV.B. on Basel Committees decision not to integrate contingent capital.
> 521 Sundaresan & Wang _, supra_ note 451 (recognizing that a value transfer between equity and contingent capital “disturbs equilibrium by moving the stock price up or down, depending on the conversion ratio specified,” and that the proposals typically ensure that there is no value transfer at maturity, but do not ensure there is no transfer before maturity. Because the value transfer will not always push the stock price across the trigger, there are two possible scenarios (equilibria): (1) “all investors believe conversion will not happen, leading stock price to stay above the trigger,” and (2) “all investors believe conversion will happen, leading stock price to hit the trigger.” Sundaresan and Wang aver that “[s]ince two prices are possible whenever firm value drops to [a] certain level, by combining these dual equilibria around trigger at different times in the future, numerous expected equity values are possible even well before conversion.”). _See_ Coffee, _supra_ note 562; FLANNERY, _supra_ note 24; McDonald, _supra_ note 451; _see also_ Darrell Duffie, _Contractual Methods for Out-OfCourt Restructuring of Systematically Important Financial Institutions_ 1, 4 (Nov. 9, 2009)
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categorized as follows: (1) transactional triggers, (2) automatic triggers, (3) statutory triggers, and (4) regulatory triggers. Constituents favor trigger designs in accordance with their own utility preferences. For instance, interest groups representing the banking industry seem to favor transactional triggers that are privately negotiated,<sup>522</sup> subjective, and flexible.<sup>523</sup> Some authors favor automatic triggers that convert debt into equity when a certain stock price, index value, CDS spread, capital ratio, or other trigger is reached.<sup>524</sup> Others, including the Basel Committee, prefer statutory triggers that allow for regulatory discretion.<sup>525</sup> Lastly, regulatory
(Preliminary Draft: Submission Requested by the U.S. Treasury Working Group on Bank Capital), _available at_ http://media.hoover.org/sites/default/files/documents/06Ending GovernmentBailoutsAsWeKnowThemDuffie.pdf (focusing on possible triggers of Distress - Contingent Convertible Bonds/Debt (essentially CCS). If the trigger is an accounting capital ratio, it may not be able to capture the true financial condition of the bank because of accounting failures. The ratio of tangible common equity (TCE) to tangible assets may be more effective because it excludes the “relatively useless assets during a solvency crisis.” If the trigger is determined by market value, the impact of a short seller speculative attack could be mitigated by using a trailing average share price (e.g., the preceding 20 days). To eliminate a “bank run,” the trigger should be set to convert debt into equity before a liquidity crisis begins. Duffie also discusses mandatory rights offerings.).
> 522 Monroe, _supra_ note 452, at 4 (“Contingent capital instruments should be based on terms and conditions, including triggering events, negotiated by banks and their investors. To do otherwise would be to require banks to issue securities for which no viable market exists at reasonable prices, thereby forcing banks to offer extraordinary return to compensate investors for extraordinary risk. This would cause a damaging hit to banks’ profitability and, therefore, to their ability to attract other forms of capital.”).
> 523 Swedish Ministry of Finance, _supra_ note 479, (favoring contractual trigger and arguing contractual trigger should come before statutory trigger); Monroe, _supra_ note 452, at 4–5 (favoring negotiated terms of contingent capital: “A regulatory trigger would be very subjective, allowing for a high degree of latitude by supervisory authorities without reference to specified criteria. Experience teaches that under political pressure regulators could be just as prone to forebear as they would be to exercise such a trigger. Regulatory triggers may also preclude the ability of a bank to “cure” a trigger event, a common feature of other capital instruments.”).
> 524 Coffee, _supra_ note 26, at 831; Flannery, _supra_ note 24, at 11–12; Mark J. Flannery, No Pain, No Gain? Effecting Market Discipline via “Reverse Convertible Debentures” 30 (Nov. 2002) (unpublished manuscript), _available at_ http://bear.warrington.ufl.edu/f lannery/No%20Pain,%20No%20Gain.pdf [hereinafter Flannery No Pain] (“Frequent trigger evaluations eliminate moral hazard incentives and expose the RCD to surprisingly low default risk.”); McDonald, _supra_ note 451, at 2 (proposing “a form of contingent capital for financial institutions that converts from debt to equity if two conditions are met: the firm’s stock price is at or below a trigger value and the value of a financial institutions index is also at or below a trigger value.”); Paul Glasserman & Behzad Nouri, Contingent Capital with a Capital-Ratio Trigger (Aug. 31, 2010), _available at_ http://ssrn.com/abstract=1669686 (analyzing the case of contingent capital with a capital-ratio trigger and partial and on-going conversion).
> 525 _See_ , GOLDMAN SACHS GLOBAL MKTS. INST., CONTINGENT CAPITAL: POSSIBILITIES, PROMISES, AND OPPORTUNITIES 4 (2011), _available at_ http://www.goldmansachs.com/ourthinking/global-economic-outlook/global-econ-outlook-pdfs/contigent-capital.pdf [hereinafter Goldman Sachs]. _See also_ SWEDISH MINISTRY OF FINANCE, THE RIKSBANK, THE
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triggers converting debt into equity can be precipitated by, for instance, the results of a bank stress test. This might occur when a financial institution decides to write off a portion of its assets or when a regulator determines that a financial institution is not financially viable without a public sector injection of equity capital.<sup>526</sup> Some authors suggest several and often interrelated triggering events.<sup>527</sup> Contingent capital with sequential triggers can combine elements from various trigger designs.<sup>528</sup>
# A. Trigger Events – Uncertainty – Market Development
Given the range of public sector injections into struggling financial institutions during the financial crisis, the European Commission suggests that a mandatory minimum issuance of contingent capital could range from 4 to 19 percent of risk-weighted assets.<sup>529</sup> Others believe the range of mandatory contingent capital issuance should approach between 4 and 8 percent of risk-weighted assets.<sup>530</sup> Mandatory issuance of contingent capital does not guarantee that a viable market in contingent capital securities will develop. The nascent market in European contingent capital securities developed through the involvement of hedge funds and other private market participants.<sup>531</sup> The expansion of an international market in contingent capital securities will depend on many factors, including perhaps
SWEDISH FINANCIAL SUPERVISORY AUTHORITY & THE SWEDISH NATIONAL DEBT OFFICE, SWEDISH ANSWERS TO THE DG INTERNAL MARKET AND SERVICES WORKING DOCUMENT “TECHNICAL DETAILS OF A POSSIBLE EU FRAMEWORK FOR BANK RECOVERY AND RESOLUTION” 1, 43 (March 3, 2011), _available at_ http://www.riksbank.com/templates/ YearList.aspx?id=20368&all=1 (arguing that the wind-down tools should include a statutory bail-in tool.); Ceyla Pazarbasioglu et al., Contingent Capital: Economic Rationale and Design Features, IMF Staff Discussion Note 18 (January 25, 2011), _available_
_at_ http://www.imf.org/external/pubs/ft/sdn/2011/sdn 1101.pdf (advocating a statutory bailin regime as opposed to contingent capital); FINANCIAL STABILITY BOARD, KEY ATTRIBUTES OF EFFECTIVE RESOLUTION REGIMES FOR FINANCIAL INSTITUTIONS 1, 9-10 (OCTOBER 2011), _available at_ http://www.financial stabilityboard.org/publications/r_111104cc.pdf (among other suggestions, arguing in favor of “apply[ing] one or a combination of resolution powers, with resolution actions being either combined or applied sequentially.”).
> 526 FLANNERY, _supra_ note 24 (recommending that conversion of debt security be tied to a decline in the bank’s equity ratio); BIS III, _supra_ note 48, at 7.
> 527 FLANNERY, _supra_ note 24; Flannery No Pain, _supra_ note 524; McDonald, _supra_ note 451, at 2 (proposing “a form of contingent capital for financial institutions that converts from debt to equity if two conditions are met: the firm’s stock price is at or below a trigger value and the value of a financial institutions index is also at or below a trigger value.”); Glasserman & Nouri, _supra_ note 524 (analyzing the case of contingent capital with a capitalratio trigger and partial and on-going conversion).
> 528 Kaal & Henkel Sequential, _supra_ note 498.
> 529 DG Working Document, _supra_ note 10, Annex, n. 24.
> 530 Goldman Sachs, _supra_ note 525.
> 531 _See_ Kaal Corporate Governance, _supra_ note 493.
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a level of convergence in CCS designs and issuance volumes.<sup>532</sup> Developing a critical mass for the market in contingent capital securities could require banks and other financial institutions to purchase their competitors’ contingent capital securities.<sup>533</sup> That could raise ethical, antitrust, and incentive concerns.<sup>534</sup>
# **Potential Effects of CCS**
**Trigger Mechanisms**
<!-- Start of picture text -->
Uncertainty<br>Risk /<br>Interest<br>Rate<br>Line 2<br>Volume<br>Line 1<br>Trigger<br>Transactional Automatic Statutory Regulatory<br>Institution Specific Systemic<br><!-- End of picture text -->
The interplay between the structuring of trigger events, the resulting level of uncertainty for market participants, and the development of a market in CCS has not been systematically studied. Graph 1 shows a possible inverse relationship between the volume of CCS issuance and risk or a higher interest rate as a proxy for risk taking. Line 1 shows that, as the uncertainty generated by the trigger designs increases, the volume of CCS could decrease. Line 2 suggests that risk and the interest rates of CCS (before conversion) will increase with the level of uncertainty in the trigger design promulgated by policy makers and legislators.
A large variety of trigger designs and a combination of trigger designs is possible. Graph 1 categorizes trigger designs into institution specific and systemic. Institution specific triggers may be transactional or automatic. Systemic triggers can be statutory or regulatory. A regulatory systemic trigger may generate the highest degree of uncertainty, as suggested in
> 532 Goldman Sachs _, supra_ note 525.
> 533 _See_ Kaal Corporate Governance, _supra_ note 493.
> 534 _Id_ .
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Graph 1. This can be a trigger that converts CCS into equity upon, for instance, a regulator’s decision that additional capital is needed.<sup>535</sup> Regulatory triggers can also be based on stress tests, or the determination that the respective bank is not viable without a public sector injection of capital or a write-off.<sup>536</sup> A statutory systemic trigger is a trigger that by law converts CCS to equity when, for instance, a legally defined mortgage delinquency rate is reached. This would not provide regulators with discretion. Instead, statutory systemic triggers may be based on somewhat more objective measures, such as a delinquency rate, defined by law. The lack of regulatory discretion in the statutory systemic trigger would presumably give market participants more certainty as to possible trigger scenarios than a regulatory systemic trigger.
In this model, institution specific triggers would grant the most certainty to market participants. An automatic institution-specific trigger could be based on reaching a certain predefined threshold in the share price, credit default swap spreads, or debt equity ratios.<sup>537</sup> Assuming that SIFIs would be required to disclose all CCS contracts with counterparties, including any triggering events therein, transactional institution-specific triggers may involve the lowest level of uncertainty for market participants.
# B. Timing Trigger Events
The timing of triggering events is a crucial element in the design of contingent capital securities. If conversion is triggered too early without a real need for an equity capital injection (and additional voting shareholders), the impact of the equity capital injection may have dissipated and may no longer be available when actually needed. If conversion from debt to equity is triggered too late, the financial institution may already be in the resolution stage and conversion at that stage would not supply the company with sufficient equity to turn the company around. It is also unclear if contingent capital securities should be converted incrementally to soften the negative effect an early or late conversion may have. Jack Coffee prefers an incremental conversion in a series of steps.<sup>538</sup> Others argue
> 535 _See, e.g._ , Flannery No Pain, _supra_ note 524, at 182–87 (supporting conversion of debt security tied to decline in bank’s equity ratio). _Contra_ McDonald, _supra_ note 451, at 3 (rejecting the use of accounting figures in the trigger or conversion formulas); Coffee, _supra_ note 26, at 831 (arguing against the use of account numbers in triggers).
> 536 BIS III, _supra_ note 48.
> 537 Some have argued that these market based triggers could be subject to manipulation, see Ceyla Pazarbasioglu et al., _Contingent Capital: Economic Rationale and Design Features_ , IMF Staff Staff Discussion Note (Jan. 2011), _available at_ http://www.imf.org /external/ pubs/ft/sdn/2011/sdn1101.pdf.
> 538 Coffee, _supra_ note 26, at 830 (arguing for incremental conversion in a series of steps because that incremental conversion enables an early trigger for conversion. He uses the following example: “[A]n incremental design might hypothetically convert 25% of the convertible bonds on a 25% stock price decline from the stock price on the date of the
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contingent capital provisions should permit “carefully designed partial or temporary write-downs within reasonable bounds.”<sup>539</sup>
# C. Dual Triggers in Going and Gone Concern
Scholars have previously proposed models for contingent capital that involve dual triggers. McDonald suggests a model for contingent capital where debt converts to equity if both (1) “the firm’s stock price is at or below a trigger value,” and (2) “the value of a financial institution’s index is also at or below a trigger value.”<sup>540</sup> McDonald provides an example of contingent capital with dual triggers and compares this model with other alternatives. McDonald also discusses various issues related to evaluating contingent capital proposals including the effect of market manipulation, capital errors,<sup>541</sup> and problems with reliance on accounting measures. A central strength of the dual trigger proposals is their reliance on market prices. A major disadvantage is the index trigger, which could potentially create incentives to manipulate the index or to try to force an entity into bankruptcy.<sup>542</sup> However, McDonald’s dual-price trigger may act like a single-price trigger in times of stress. Outside of a crisis scenario, the dualprice trigger contingent capital acts more like standard subordinated debt.<sup>543</sup> Sequential triggers, on the other hand, may allow the conversion of
bonds’ issuance; another 25% might convert on a further 25% decline; and the balance would convert if the stock price fell 75% (or more) from the original price.”).
> 539 Monroe, _supra_ note 452, at 4.
> 540 McDonald, _supra_ note 451, Abstract.
> 541 Such as contingent capital converting into equity when not required and contingent capital failing to convert into equity when it is required.
> 542 McDonald, _supra_ note 451, at 13 (“The difference between the converted and unconverted bond is greatest when the bond is close to maturity and the payment of par is a few days away. This is clearly a case where traders might try to manipulate the index to avoid conversion [. . . .] Under some circumstances bondholders could have an incentive to try to force the institution into bankruptcy before conversion can occur. Suppose the share price is very low but the index price is above the trigger. Bond-holders may believe that they will receive a greater percentage of principal as subordinated bondholders in bankruptcy as opposed to the value of shares they would receive in default.”). _See also_ Mark J. Flannery, _Stabilizing Large Financial Institutions with Contingent Capital Certificates_ 18-19 (2009), _available at_ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1485689 (“A market-valued trigger might attract market manipulation. A speculator could purchase some CCC, short the stock, and receive under-valued shares when the conversion trigger was tripped. If short sales could force a solvent firm’s share price to zero, CCC might destabilize financial firms rather than stabilizing them.”).
> 543 George Pennacchi, _A Structural Model of Contingent Bank Capital_ , _supra_ note 451, at 12 (arguing that “dual-price trigger contingent capital acts like single-price trigger contingent capital in a crisis but acts like standard subordinated debt in a non-crisis.”). _See also_ George Pennacchi, _A Structural Model of Contingent Bank Capital_ , _supra_ note451, at 28 (concluding that “yields on dual-price trigger contingent capital fall between those of comparable single-price trigger contingent capital and subordinated debt”).
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contingent capital into equity in a going and gone concern scenario.<sup>544</sup> Given that the European Commission structures its resolution regime into going and gone concern with a significant role for contingent capital in both going and gone concern,<sup>545</sup> sequential triggers in going and gone concern could help improve incentives for decision makers in the financial institutions and policy makers.<sup>546</sup> Sequential triggers within the European Commission’s targeted and comprehensive approach<sup>547</sup> could take various forms. The first trigger converting contingent capital securities into equity could be based on various models that had previously been discussed in the literature.<sup>548</sup>
If the financial health of the financial institution does not return up to a predefined threshold, the voting rights of such common stock (as a result of conversion from debt into equity) could be changed to give the former holder of contingent capital securities more influence in the resolution phase of the financial institution.<sup>549</sup> This has several benefits. Given the risk that policy makers may not structure the trigger appropriately, the negative effects of inadequate or untimely conversion of debt into equity at a time when the company requires a capital injection could be cushioned with a second trigger before the reorganization or resolution of the company.<sup>550</sup> A second trigger pre-reorganization of the entity could add an element of prudential regulation because it would apply only to a small portion of SIFIs rather than all internationally active banks. It would only come into effect if the first trigger was unsuccessful, and it would merely increase the dilution of shareholder voting rights as a remedy of last resort before bankruptcy.<sup>551</sup> The interplay of conversion from debt to equity before resolution as a preventative act and the use of a second trigger in the resolution stage would have to be carefully calibrated. More research is needed to determine the best incentive structure for contingent capital holders and management.<sup>552</sup>
> 544 Kaal & Henkel Sequential, _supra_ note 498.
> 545 DG Working Document, _supra_ note 10, at Annex I.
> 546 _See_ Kaal & Henkel Sequential, _supra_ note 498 (proposing sequential triggers where the first trigger would be a preventative tool while the second trigger before the resolution phase would provide additional voting rights for contingent capital holders to secure success of the first trigger and set appropriate incentives for shareholder and management).
> 547 _Id._
> 548 _See generally_ Coffee, _supra_ note 26.
> 549 Kaal & Henkel Sequential, _supra_ note 498.
> 550 _Id._
> 551 _Id._
> 552 _See further_ Kaal Executive Compensation, _supra_ note 493.
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# VI. CONTINGENT CAPITAL AS A PREVENTATIVE TOOL IN EUROPEAN UNION BANK RESTRUCTURING
Proposals on bank restructuring by the European Commission,<sup>553</sup> the Basel Committee,<sup>554</sup> and the Financial Stability Board<sup>555</sup> focus on statutory debt write-down or bail-inables within resolution. Although the potential of contingent capital as a preventative tool is widely recognized,<sup>556</sup> the European Commission and national legislators have not yet adopted contingent capital as a mandatory part of capital requirements for financial institutions. Instead the European Commission merely favors the recognition of contingent capital as Tier 1 common equity, leaving the implementation of contingent capital to the markets and the discretion of national legislators.<sup>557</sup>
For instance, the Swiss approach to contingent capital stops short of making the issuance of contingent capital a mandatory requirement for Swiss SIFIs. The Swiss Banking Act requires Swiss SIFIs to be prepared for future crises<sup>558</sup> but leaves it up to management to determine if such preparation should entail the issuance of contingent capital or raising additional capital.<sup>559</sup> In practice, however, issuing contingent capital securities could be less expensive than raising additional Tier 1 capital. With total Swiss capital requirements at 19 % of risk weighted assets, well beyond the capital requirements under Basel III, Swiss SIFIs could be well advised to issue contingent capital securities. The Swiss Banking Act requires a regular review of its provisions to ensure comparability with international standards.<sup>560</sup>
At the European level, the European Union bank resolution regime could be further enhanced with contingent capital. The European bank resolution regime could work more effectively and more comprehensively
> 553 _See_ DG Working Document, _supra_ note 10.
> 554 _See_ Bank for Int’l Settlements [BIS], Basel Comm. on Banking Supervision, Consultative Document: Global Systemically Important Banks: Assessment Methodology and the Additional Loss Absorbency Requirement (2011), _available at_ http://www.bis.org/ publ/bcbs201.pdf.
> 555 _See_ FIN. STABILITY BD., _supra_ note 71.
> 556 _See, e.g._ , Press Release, _supra_ note 27; _see also_ DG Working Document, _supra_ note 10; _see_ CRD IV Regulation, _supra_ note 10; _see_ CRD IV Directive, _supra_ note 10.
> 557 _See. e.g._ , CRD IV Regulation, _supra_ note 10, arts. 48a, 49(1)(n), & 51(b).
> 558 BUNDESGESETZ ÜBER DIE BANKEN UND SPARKASSEN [BANKG] [FEDERAL LAW ON BANKS, SAVING AND LOANS] Nov. 8, 1934, SR 952, art. 9 (Switz.), _available at_ http://www.admin.ch/ch/d/ff/2011/7487.pdf.
> 559 _See_ Swiss Banking Act, SR 952.0 art. 11, 14
> 560 The Swiss Banking Act specifically requires a regular review of all provisions after the implementation of the initial amendments. The first review is scheduled, at the latest, three years after the implementation, and followed by a two-year interval thereafter. The goal of the review is a comparison with international standards in other countries. _See id._ art. 52.
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with contingent capital as a preventative tool. Contingent capital could play an important role in an effective resolution regime, it could provide additional loss absorbing capital before any regulatory intervention is necessary, and contingent capital could be a reliable source of common equity.<sup>561</sup> This is of particular significance if SIFIs are mandated to organize in a manner that ensures the continuous operation of their systemically important sectors.<sup>562</sup>
Contingent capital could work well within the European Commission proposal on bank resolution. It could be part of bank capital requirements. Alternatively, contingent capital could become part of resolution and recovery plans prior to financial institutions entering the vicinity of bankruptcy. The issuance of contingent capital could take place at the earliest possible stage, when the institution is still sound on a microprudential basis.<sup>563</sup> It could also be part of mandated recapitalizations if financial institutions are unable to pass stress tests.<sup>564</sup> Conversion of CCS from debt to equity should take place when problems are first detected but before early intervention powers of regulatory authorities are triggered.<sup>565</sup>
Contingent capital may help SIFIs to reorganize without the involvement of courts and regulators. Compared to preferred stock, Tier 2 debt, and other subordinated debt, contingent capital can help firms to recover from distress without going into resolution.<sup>566</sup> It could provide a soft-landing similar to reorganization as a going concern through the debtor in possession under Chapter 11.<sup>567</sup> The restructuring of a financial
> 561 Kaal & Henkel Sequential, _supra_ note 546.
> 562 _See, e.g._ , BUNDESGESETZ ÜBER DIE BANKEN UND SPARKASSEN [BANKG] [FEDERAL LAW ON BANKS, SAVING AND LOANS] Nov. 8, 1934, SR 952, art. 9, ¶ 2(a)(2) (Switz.) (“2. Systemically important banks must specifically: (a) dispose of common equity, which will namely: . . . 2. Contribute substantially to the continuing operation of all systemically relevant functions in case of impending insolvency.”); _id_ . art. 9, ¶ 2(d) (“2. Systemically important banks must specifically: . . . (d) provide for a resolution plan that can be implemented immediately and in case of impending insolvency ensures the continuing operation of all systemically relevant functions. The resolution plan must address structural, infrastructural, management and control concerns, and shall ensure group internal capital flow and liquidity.”); _id_ . at art. 10, ¶ 10(2) (“2. The systemically important bank shall prove that it fulfills the specific requirements of art. 2, subsection 2(d) and is able to continue the operation of its systemically important functions in case of impending insolvency. If the bank cannot provide this proof, FINMA shall order the implementation of all appropriate measures.”) (translations provided by the authors).
> 563 John C. Coffee, _supra_ note 26, at 831 (providing a rationale for why an “early and incremental conversion” may be advantageous).
> 564 _See, e.g._ , Brooke Masters, Peggy Hollinger & Alex Barker, _EU to Speed Recapitalization of Smaller Banks_ , FIN. TIMES, Sept. 23, 2011, http://www.ft.com/intl/cms/ s/0/49d6240e-e527-11e0-bdb8-00144feabdc0.html?ftcamp=rss#axzz1bBppLalv.
> 565 Specific trigger designs may require additional research, Member State consensus, and market development. _See_ discussion _supra_ Part V.
> 566 FIN. STABILITY BD., _supra_ note 75, at 12; _see supra_ text accompanying note 555.
> 567 Kaal & Henkel Sequential, _supra_ note 546 (elaborating on the use of contingent
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institution would be initiated on a voluntary basis by the institution itself and without any public involvement. Contingent capital would provide additional downside protection.
Contingent capital as a preventative tool would not impede the statutory core power or debt write-down tool of bail-inables within resolution. If the contractual debt write-down and conversion at an early stage does not achieve the desired result, regulatory authorities would not be prevented from intervening and initiating a write-down or haircut aimed at all shareholders, debt investors, and other private parties involved.
# VII. CONVERGENCE
Without a degree of similarity and convergence in bank resolution and contingent capital rules, regulatory arbitrage could have an adverse effect on establishing contingent capital as an integral part of financial markets. Although many proposals on contingent capital are based on similar ideas, a coherent trend toward convergence of contingent capital standards seems still elusive. This could partially be due to a first mover problem. Single jurisdictions could be hesitant to implement contingent capital requirements without first knowing how other jurisdictions and financial institutions that compete with their home institutions may structure their contingent capital rules.
The European Commission Regulation Proposal which defines Tier 1 capital<sup>568</sup> could be a first step toward setting up a basic framework for harmonized contingent capital standards. While the Commission proposal only harmonizes the definition of Tier 1 capital, Member States are free to set up rules for contingent capital or leave contingent capital designs up to private ordering.<sup>569</sup> The European Commission Regulation Proposal and its harmonization of the Tier I capital definition could fill a void left by the Basel Committee. The Basel Committee rejected requests from EU Member States to use contingent capital to satisfy the new capital buffer requirements under Basel III.<sup>570</sup> Instead, the Basel Committee decided to require SIFIs to use retained earnings and ordinary shares to meet heightened capital requirements.<sup>571</sup> While this approach will not fully
capital as a pre-reorganization tool).
> 568 CRD IV Regulation, _supra_ note 10.
> 569 For a discussion on the benefits of private ordering and the calibration of market mechanisms, private ordering, and mandatory rules see Kaal, Corporate Governance, _supra_ note 493; _see also_ Kaal, Executive Compensation, _supra_ note 493 (discussing the use of contingent capital for dynamic regulation of financial institutions).
> 570 Meera, _supra_ note 490.
> 571 _Id._ (noting that this was a victory for U.S. regulators over their European counterparts and quoting Karen Shaw Petrou, managing partner of Federal Financial Analytics Inc., a Washington-based, bank consulting firm: “Europeans were pushing for a mix of common equity and contingent capital and they lost at a global level.”).
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replace a requirement under Basel III to use contingent capital to satisfy a new capital buffer, it leaves enough flexibility for counterparties and the legislators in the respective EU Member States to implement contingent capital.
Despite an active discourse on harmonization and convergence of contingent capital criteria in Europe, the debate in the United States on the use of contingent capital in bank restructuring is just in the beginning stages.<sup>572</sup> Although the Dodd Frank Act authorizes the use of contingent capital, its design features and the extent of its potential applications are unclear.<sup>573</sup> The Federal Reserve Board, through Section 165(b)(1)(B) of the Dodd-Frank Act, can impose “a contingent capital requirement” on both “nonbank financial companies supervised by the Board of Governors” and certain “bank holding companies.”<sup>574</sup> However, this authority is contingent on the outcome of a study on the feasibility of contingent capital.<sup>575</sup> The SEC study, mandated by Section 115 (c) of the Dodd-Frank Act, requires an evaluation of the international competitiveness of United States companies that implement contingent capital.<sup>576</sup>
Single jurisdictions may be deterred from implementing contingent capital requirements without knowing or being able to anticipate how other jurisdictions will structure their contingent capital rules. This could be a special concern because legislators may want to structure contingent capital rules in a way that enables their national financial institutions to compete with other international financial institutions that would be subject to the
> 572 Coffee, _supra_ note 26, at 846.
> 573 Kaal & Henkel Sequential, _supra_ note 498.
> 574 Dodd-Frank Act, Pub. L. No. 111-203, § 165(b)(1)(B), 124 Stat. 1376 (2010).
> 575 _Id_ . § 165(c)(1) (“CONTINGENT CAPITAL.— (1) IN GENERAL.— Subsequent to submission by the Council of a report to Congress under section 115(c), the Board of Governors may issue regulations that require each nonbank financial company supervised by the Board of Governors and bank holding companies described in subsection . . .”). The content of the study is described in Section 115 (c) of the Dodd-Frank Act. (“(c) CONTINGENT CAPITAL.— (1) STUDY REQUIRED.—The Council shall conduct a study of the feasibility, benefits, costs, and structure of a contingent capital requirement for nonbank financial companies supervised by the Board of Governors and bank holding companies described in subsection (a), which study shall include— (A) an evaluation of the degree to which such requirement would enhance the safety and soundness of companies subject to the requirement, promote the financial stability of the United States, and reduce risks to United States tax- payers; (B) an evaluation of the characteristics and amounts of contingent capital that should be required; (C) an analysis of potential prudential standards that should be used to determine whether the contingent capital of a company would be converted to equity in times of financial stress; (D) an evaluation of the costs to companies, the effects on the structure and operation of credit and other financial markets, and other economic effects of requiring contingent capital; (E) an evaluation of the effects of such requirement on the international competitiveness of companies subject to the requirement and the prospects for international coordination in establishing such requirement; and (F) recommendations for implementing regulations.”).
> 576 _Id_ . § 115 (c)(1)(D)–(E).
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contingent capital rules in their home state. Without a certain level of convergence in contingent capital rules, regulatory arbitrage could have an adverse effect on establishing contingent capital as an integral part of financial markets.
# VIII. CONCLUSION
Disparate bank resolution and restructuring regimes in Europe and the United States could face many challenges in future crises. Contingent capital may offer a viable and efficient alternative for the prevention of bank failure and facilitates the efficient restructuring and resolution of failing financial institutions. Similar to a Chapter 11 reorganization procedure, contingent capital could offer a soft landing for banks in distress and may be specifically well suited for systemically important financial institutions. The European Commission has recognized the possible role contingent capital could play for the European banking sector. Contingent capital may also enhance and harmonize disparate resolution regimes throughout the European Union and could help ensure the competitiveness of the financial sector. The exact calibration of design features is crucial for the establishment of a future market in contingent capital securities. The uncertainties involved in the trigger mechanisms may require a reevaluation of trigger designs currently under consideration. Given the European initiatives on contingent capital and the nascent market in European contingent capital securities, the Board of Governors of the United States Federal Reserve would be well advised to consider implementing contingent capital standards. Contingent capital securities could help ensure the future competitiveness of financial institutions in the United States.