1. Banks in the Financial System

This chapter explains the economic functions and organizational structure of contemporary banking. It first discusses the role of banks in the economy, offering a brief account of the role of the financial system in capital allocation and risk management as well as key bank functions in this respect. It then details the rise and fall of the multifunctional bank in the era of globalization, and the different aspects of the too-big-to-fail bank problem and its possible causes. It explains the international nature of bank regulation and the standard-setting and regulatory coordination provided by key transnational regulatory networks such as the Basel committee on Bank Supervision and the Financial Stability Board; discusses the legal definition of the term ‘bank’ in the US and of ‘credit institution’ under EU legislation; advances a new understanding of what the term ‘bank’ means in the post-2008 era.

4. Fundamental Principles of Bank Supervision and the Lender of Last Resort—A Reconceptualization

This chapter examines the architecture and functions of bank supervision. Bank supervision is the process through which compliance with discussed prudential, conduct, and systemic regulations is safeguarded and enforced. It is normally exercised by public agencies that have the competence to approve the establishment and operation of credit institutions and monitor continuous compliance with the requisite regulatory framework. The same public bodies are also vested with remedial (early intervention) and enforcement powers in the event of a breach of any of the above. The chapter covers the fundamental principles of financial supervision; bank supervisors' accountability and judicial review; bankers' conduct, money laundering, and terrorist financing; and the central bank as the lender of last resort to the banking system.

2. Prudential Regulation I: Capital and Liquidity Controls

This chapter begins with a discussion of the reasons for bank regulation. Traditionally the focus of bank regulation has been the protection of individual institutions' stability from a depositors' run, and of depositors and deposit guarantee schemes from incurring losses in the event of bank failures. Another fundamental goal was the protection of taxpayers from a public bailout and from the kind of moral hazard that arises when public bank rescues are likely. However, in recent years, and especially since the global financial crisis the focus of bank regulation has broadened to include eliminating too-big-to-fail institutions; increasing capital cushions and introducing liquidity requirements; and enhancing the resilience of the financial system to withstand system-wide shocks. The remainder of the chapter covers prudential regulation, capital regulation, the different phases of the Basel capital framework, and the total loss absorbing capacity standard.

16. Loan Sales and Securitization

This chapter examines one context in which contracts and debts are transferred — as banks and bank subsidiaries ‘sell’ their own assets, i.e. their loans, mortgages, credit card receivables, and so on. Commercially speaking, this divides into loan sales and securitization. Among the various motivations for these transactions are to reduce risk, to meet capital requirements, to allow for new lending, and to take advantage of financial and commercial opportunities. Securitization was abused, with many risky loans repackaged and sold as highly rated securities. Its contribution to the global financial crisis in 2008 made it unpopular. However, it remains significant as a financing technique. Before examining loan sales and securitization, the chapter lays out the different legal techniques for transferring debts and contractual rights.

10. Advisory and Transactional Liability

The chapter first discusses the general principles governing a bank's liability. One way to approach the topic involves a consideration of the relevant doctrines whereby banks can incur liability. Section I selects just a few such doctrines. Another approach considers the various factual matters which feed into legal decisions about bank liability. The same factors recur across different legal doctrines: indeed, they arise for consideration in other systems of law. This is the focus of Section II. Section III considers advisory liability, which can arise in two ways: a failure to advise where the law imposes a duty to do so, and a failure to advise adequately when a bank assumes the task of advising a customer or third party. Section IV turns to the English law doctrines which have a particular application to transactions involving those the law regards as vulnerable. The final section deals with ‘lender liability’.

3. Prudential Regulation II: Structural Reform, Deposit Insurance, Corporate Governance

This chapter discusses bank structural reform. Most structural reform initiatives that have been undertaken since 2008 were aimed at reversing the effects of the repeal of the Glass–Steagall Act in the late 1990s and of the EU legislation that promoted universal banking. The chapter first considers the financial stability concerns and the mechanics of contemporary structural reform legislation in the USA, the UK, and the EU, and the actual legal framework underpinning these reforms. It then covers the regulation of bank involvement in derivatives markets. Today, derivatives regulation is a clear part of macroprudential regulation to the extent that centralized clearing and settlement and increased transparency battle opacity and interconnectedness and limit systemic risk. The remainder of the chapter covers deposit insurance, bank corporate governance, risk control, and executive remuneration.

18. Security

This chapter discusses security in lending. Lending is in some cases unsecured, where the standing of the borrower is such that the banks cannot demand it or, because of the creditworthiness of the borrower, do not regard it as necessary. However, much international lending is now oriented towards particular projects, and security is taken. Security is often required so that the bank can recoup itself out of the collateral in the event of default. In relation to project financings, the security required by the banks will often be of a comprehensive nature; for example a fixed and floating charge, a charge over shares, a legal assignment of material contracts, and so on. With syndicated lending, the security might be granted in favour of a security trustee to hold to the benefit of the members of the lending syndicate. Within a corporate group, each member may contribute to the security, and there will be cross-guarantees.

17. International Payment Systems and Trade Finance

This chapter discusses two distinct but inter-related issues. The first part considers the general ways in which payment may be effected internationally or across borders in respect of any type of consumer or commercial contract. In many ways, the analysis builds upon the discussion in the earlier chapter dealing with domestic payment systems and limits itself to highlighting the additional issues or concerns that arise when such systems are used to effect an international or cross-border payment. The second part analyses the specialist mechanisms designed to facilitate payment in the trade finance context in particular. Some of the issues surrounding international messaging and transfer systems, such as SWIFT and TARGET, have already been considered.

15. Banks and the Capital Markets

This chapter considers banks' securities activities. Many banks have compensated for the decline in traditional finance by emphasizing their securities activities. These range from the traditional task of investment banks in advising, underwriting, and distributing new issues of securities, through to dealing on their own account on securities and derivatives markets — proprietary trading. In the decade leading up to the Global Financial Crisis, banks also played a significant role in introducing new products to these markets, including asset-backed securities and credit derivatives. The onset of the crisis provoked intense scrutiny and widespread criticism of many of these activities, and led to the introduction of significant controls on the ability of banks to engage in them. The chapter discusses types of securities, subordination, and custody; distributing securities issues; and securities regulation.

14. Lending

This chapter considers lending in liberalized markets, where banks enjoy greater autonomy in their choice of borrower, the terms on which they lend, and the exercise of remedies on a borrower's default. It focuses on commercial lending by banks, and thus does not consider the additional issues that arise in relation to consumer lending. Commercial lending by banks can take various forms. Bankers often use the generic term ‘facility’ to describe them all. The most basic is the term loan, where a specified maturity date sets the time for ultimate repayment. The chapter discusses the negotiation of the agreement for commercial loan facilities; the facility and its repayment; conditions precedent, representations and warranties, covenants; the negative pledge and pari passu clauses; and default.