'Normal Insolvency Law Principles Have Not Been Applied to the Failure of Leading Banks and Institutions' - An Analysis with Reference to Recent Bank Failures in the UK

Author(s):  
Saira Aga
Keyword(s):  
2019 ◽  
Vol 20 (3) ◽  
pp. 547-566 ◽  
Author(s):  
Horst Eidenmüller

Abstract In this article, I discuss the rise and fall of regulatory competition in corporate insolvency law in the European Union. The rise is closely associated with the European Insolvency Regulation (EIR, 2002), and it is well documented. The UK has emerged as the ‘market leader’, especially for corporate restructurings. The fall is about to happen, triggered by a combination of factors: the recasting of the EIR (2017), the European Restructuring Directive (ERD, 2019) and Brexit (2019). The UK will lose its dominant market position. I present evidence to support this hypothesis.


Author(s):  
Gabriel Moss QC ◽  
Bob Wessels ◽  
Matthias Haentjens

Title IV of the Bank Recovery and Resolution Directive (BRRD) concerns resolution. If ‘conditions for resolution’ are met, resolution authorities may place any entity covered by BRRD under resolution, apply the resolution tools, and exercise the resolution powers. ‘Resolution’ is often contrasted with ‘insolvency’. Resolution is a specialized regime for bank failures, and its objectives are fundamentally different from the objectives of normal insolvency law. The resolution regime has general public interest as its main, most abstract goal, whereas the insolvency regime traditionally aims at maximizing creditor value. For these reasons, resolution management is the responsibility of government authorities rather than courts. Nonetheless, insolvency law remains of essential importance to bank resolution rules. Not only will (national) insolvency law remain critical for the interpretation and application of the BRRD’s bank resolution rules such as the ‘No Creditor Worse Off’ rule (see below at paras 7.102–7.104), but insolvency law will also remain applicable to bank failures where specific bank resolution rules do not apply.


1991 ◽  
Vol 135 ◽  
pp. 27-49 ◽  
Author(s):  
Ray Barrell ◽  
Andrew Gurney ◽  
Jan Willem In't Veld

The start of hostilities in the Gulf in January appears to have removed some of the uncertainties surrounding the oil market, and oil prices have dropped to around 20 dollars per barrel. This development should help sustain growth and reduce inflation over the next two years. Box A sets out some calculations of the effects of the change in our oil price assumptions on our forecast. The appreciation of the D-Mark bloc and the emergence of a recession in the US driven by a wave of bank failures has persuaded us to be less optimistic then we were in our last forecast. Table 1 summarises the outlook. We are forecasting a slowdown in the rate of growth in the major economies in 1991, with some recovery in 1992 and thereafter. The slowdown has already taken place in the US, the UK and Canada, whereas in 1990 Japanese and German growth was at historically high levels. Chart 1 plots levels of capacity utilisation in the major economies. Only in the US has output clearly fallen below capacity, but record levels of utilisation in Japan, Germany and France inevitably imply some slowdown in growth from recent levels.


2021 ◽  
Vol 18 (3) ◽  
pp. 338-376
Author(s):  
Gerard McCormack

Abstract This paper asks whether the UK can maintain its insolvency and restructuring pre-eminence post Brexit i. e. after Britain’s departure from the European Union (EU). In the past 20 years or so, the UK is said to have become the insolvency and restructuring capital of Europe or in less politically correct terms, the bankruptcy brothel of Europe. In part, this is because of the European Insolvency Regulation which provides for automatic recognition of insolvency proceedings opened in a EU Member State in the other EU Member States. Such proceedings may make provision for the discharge of debts and the restructuring of financial obligations.The specific insolvency law regime is part of a more general European Private International Law framework. With Brexit, the UK has now left this framework without any negotiated replacement agreement, a so-called ‘skinny’ Brexit. The loss of the ability to deal with insolvencies and corporate restructurings through a single process, with automatic recognition across the EU, may make it more complex, lengthy and expensive to resolve cross-border cases. It gives rise to the prospect of parallel proceedings in different jurisdictions. The paper also addresses how any disadvantages associated with the ‘skinny’ Brexit may be alleviated.


2014 ◽  
Vol 63 (4) ◽  
pp. 815-842 ◽  
Author(s):  
Gerard McCormack

AbstractThis paper critically evaluates ‘forum shopping’ possibilities offered by the UK and US in bankruptcy/insolvency cases. While recognizing that in some quarters forum shopping has a bad name, the paper makes the point that strategic manoeuvring and transaction planning is what litigation and case management is all about. Certain countries are popular as forum shopping venues because of substantive law or the procedural advantages brought about by litigating in that country. The paper concludes that while the UK may have shut its doors too firmly against foreign forum shoppers, the US is too much a safe haven. The paper calls for a measure of jurisdictional restraint through raising entry barriers. While a bit of jurisdictional competition in insolvency law-making may be no bad thing, the US approach runs the risk of undermining important policies considered important by other countries such as the protection of employees and the public purse. It is also asymmetrical in that US bankruptcy jurisdiction is assumed in situations where, if foreign countries had acted on a similar basis, US recognition of the foreign proceedings would be denied.


2020 ◽  
Vol 23 (2) ◽  
pp. 341-354 ◽  
Author(s):  
Norman Mugarura ◽  
Patience Namanya

Purpose This paper aims to examine how central Banks (in the narrow purview of Bank of Uganda) exercise their supervisory mandate to foster an efficient sound business environment for banks to operate efficiently. The authors were motivated to write on the subject of bank supervision because of the closure of Crane Bank and putting it under administration in 2016. The closure of this bank generated a lot of controversies on both sides of the political divide and in the press. Initially, the popular view was that Crane bank was poorly supervised, and as a result, it was exploited by insiders to commit money laundering, fraud, insider dealing, just to mention but a few. This put Bank of Uganda (the Central Bank) in a negative spotlight for failure to provide the required oversight of this bank. In Uganda, the supervision of banks and other financial institutions is the responsibility of Bank of Uganda. Design/methodology/approach The authors adopted a qualitative research approach using secondary data sources, including books, journal papers and websites, and evaluating primary legislation but also empirical evidence both in Uganda and other jurisdictions. The secondary data was evaluated to draw comparative analyses of causes of banks failures in countries both in Africa, Europe, USA and others jurisdictions across the globe. Findings It would be onerous to charge central banks with the responsibility of preventing bank failures, even though they would are required to institute measures to prevent banks from collapsing and its ripple effects on the economy. Effective banking supervision is a core factor for the success of every bank, but it cannot single-handedly prevent a bank from collapsing. A well-supervised bank can also fail not necessarily because of inherent weaknesses within its banking supervision, but it could fail because of extraneous factors beyond the control of individual banks. For example, Lehman Brothers Ltd (a highly leveraged of broker dealers) collapsed due to factors beyond its control, the Northern Rock and Royal Bank of Scotland in the UK were nationalised by the British Government. Research limitations/implications The limitation of the paper was that data on central banks and failed banks both in Uganda and other jurisdictions (the scope of the paper) was overwhelming, and it was daunting to sift through and analyse it in depth. Practical implications Banks play a fundamental role in the social-economic development of countries, and how they are regulated is significantly important for the stability of economies. They provide loans, guarantees and other financial products to businesses, and they are engines for economic growth and development. Social implications Banks affect, people, societies, businesses, markets and governments. Therefore, this paper has wider implications for the foregoing constituencies. Originality/value The originality of the paper is that this paper is unique, draws experiences across jurisdictions and evaluates in the narrow purview of banking regulation in Uganda.


Sign in / Sign up

Export Citation Format

Share Document