2014年-FSB全球金融稳定委员会_Cross_25页_397kb

Cross-border Recognition of Resolution Action Summary

Core Content

The Financial Stability Board (FSB) issued a consultative document on Cross-border recognition of resolution action in September 2014, seeking feedback from stakeholders. This document aims to address the legal uncertainties surrounding the cross-border effectiveness of resolution measures for global systemically important financial institutions (G-SIFIs). The FSB is committed to enhancing legal certainty and predictability in cross-border resolution, as outlined in the Key Attributes of Effective Resolution Regimes (KA 7.5).

The document outlines two main approaches to achieve cross-border recognition:

1. Statutory frameworks for cross-border recognition.
2. Contractual approaches to cross-border recognition, focusing on temporary stays on early termination rights and bail-in of debt instruments governed by foreign law.

Main Points

1. Importance of Cross-border Recognition

• Legal uncertainties in cross-border resolution are a major obstacle to effective resolution of systemically important financial institutions (SIFIs).
• Prompt effect of resolution measures on foreign assets, liabilities, or contracts is crucial for the implementation of group-wide resolution plans.
• Statutory recognition processes are preferred, but contractual arrangements can serve as an interim solution until comprehensive frameworks are in place.

2. Statutory Frameworks

• Jurisdictions should establish transparent and expedited processes for giving effect to foreign resolution measures.
• These processes may take the form of:
  • Recognition procedures, where a domestic authority accepts a foreign resolution proceeding and enforces the measures.
  • Supportive measures, where domestic authorities implement actions that align with and support foreign resolution measures.

3. Elements of Cross-border Recognition Frameworks

The document outlines several elements that jurisdictions should consider including in their legal frameworks to enable effective cross-border resolution:

• Legal capacity: Domestic authorities must have the legal power to recognize and enforce foreign resolution measures.
• Process and conditions: The legal framework should clearly define the procedures and conditions for giving effect to foreign actions, whether automatic or discretionary.
• Grounds for recognition: Recognition should be based on equitable treatment of domestic creditors, protection of local financial stability, and compliance with public policy.
• Non-reciprocity: Recognition should not be contingent on reciprocity, unless it is necessary to protect local interests.
• Supportive measures: These should be based on domestic resolution powers and require domestic resolution proceedings to have commenced.

4. Contractual Approaches

• The FSB supports contractual recognition as a complementary approach to statutory frameworks.
• Two key areas of focus:
  • Temporary stays on early termination rights: This is essential to prevent premature liquidation of contracts during resolution.
  • Bail-in of debt instruments: This allows for the write-down or conversion of debt under a foreign resolution regime, even if the debt is governed by foreign law.

5. ISDA Protocol and Bail-in

• ISDA has developed a protocol to support the cross-border enforcement of temporary stays on early termination rights under the ISDA Master Agreement.
• The FSB encourages broad adoption of contractual provisions to support bail-in in a cross-border context.
• Official sector action (e.g., regulation or enforceable measures) is recommended to support the implementation of these contractual approaches.

Key Information

• Deadline for responses: 1 December 2014.
• Publication: Responses will be published unless the respondent requests otherwise.
• Annex: Includes illustrative statutory approaches for giving effect to foreign resolution measures, such as:
  • UN Model Law on Cross-Border Insolvency (not specifically applicable to financial institutions).
  • Swiss legislation (FINMA can recognize foreign proceedings under certain conditions).
  • Monetary Authority of Singapore (MAS) (has powers to transfer or restructure financial institutions in support of foreign resolution).
  • EU Bank Recovery and Resolution Directive (BRRD) (provides for mutual recognition of resolution measures within the EU and with third countries).

Conclusion

The FSB emphasizes the need for legal clarity and predictability in cross-border resolution. While statutory frameworks are the preferred mechanism, contractual arrangements can serve as a temporary solution until comprehensive legal structures are in place. The focus is on ensuring that foreign resolution measures are enforceable in other jurisdictions, particularly in relation to derivatives contracts and debt bail-in. The FSB is seeking input on the appropriateness of the proposed elements and principles, and on whether further legal provisions are needed to support cross-border resolvability.