2015年-FSB全球金融稳定委员会_Principles_for_Cross_20页_288kb

Summary of Principles for Cross-border Effectiveness of Resolution Actions

Core Content

The Principles for Cross-border Effectiveness of Resolution Actions were developed in 2015 by the Financial Stability Board (FSB) to enhance legal certainty and cross-border effectiveness in the resolution of financial institutions. These principles aim to support both statutory and contractual mechanisms that enable resolution actions in one jurisdiction to be recognized or enforced in another. The guidance is primarily focused on banks but may also be applicable to other financial institutions and market infrastructures.

Main Viewpoints

1. Statutory and Contractual Mechanisms

• The FSB encourages jurisdictions to adopt statutory frameworks that align with the Key Attributes of Effective Resolution Regimes (KA 7.5) to ensure cross-border recognition of resolution actions.
• Contractual recognition is seen as a temporary and complementary solution until comprehensive statutory frameworks are in place. It can help enforce resolution actions in financial contracts and debt instruments.

2. Cross-border Recognition

• Recognition involves a domestic authority accepting and enforcing a foreign resolution measure, such as a stay on early termination rights.
• Supportive measures are actions taken by domestic authorities in coordination with foreign resolution authorities to support the effectiveness of resolution actions.

3. Temporary Stays on Early Termination Rights

• Temporary stays are crucial to prevent the premature close-out of financial contracts during resolution.
• Without such mechanisms, domestic courts may not enforce restrictions on early termination rights imposed by foreign resolution regimes, risking disruption of critical functions.

4. Bail-in

• Bail-in actions, which involve the write-down, cancellation, or conversion of debt instruments, require legal frameworks that allow such actions to be recognized in other jurisdictions.
• Contractual bail-in recognition clauses in debt instruments can support cross-border enforceability, especially when governed by foreign law.

5. Equitable Treatment of Creditors

• The process for recognizing foreign resolution actions should ensure equitable treatment of domestic and foreign creditors.
• Perceived discrimination can hinder cooperation and increase litigation risks.

6. Expedited Processes

• Jurisdictions should aim to expedite the recognition and enforcement of foreign resolution actions.
• Judicial involvement, if required, should be expedited to meet the needs of effective resolution.

7. Legal Protections

• Authorities and officials must be protected from liability when acting in good faith to support foreign resolution actions.
• Legal remedies should be available to address any adverse effects of foreign resolution measures.

8. Promotion of Contractual Recognition

• Authorities should encourage or require firms to adopt contractual recognition clauses to support cross-border enforceability.
• These clauses should be framed as agreements to be bound by temporary stays or bail-in measures under applicable statutory regimes.

Key Information

• Statutory Measures: Should align with KA 7.5, provide legal capacity for domestic authorities to recognize foreign resolution actions, and clearly define conditions, grounds for refusal, and processes for recognition or support.
• Contractual Measures: Should include enforceable clauses that allow for the recognition of temporary stays and bail-in actions. These clauses must be consistent with statutory regimes, ensure clarity and enforceability, and include appropriate disclosure.
• Examples of Statutory Frameworks:
  • UNCITRAL Model Law on Cross-Border Insolvency: A global framework that facilitates cross-border insolvency recognition but does not include specific rules on groups or banks with special regimes.
  • Swiss Legislation: Allows FINMA to recognize foreign bank insolvency proceedings under certain conditions, including non-conflict with public policy and location of the bank.

Conclusion

The FSB emphasizes the importance of both statutory and contractual approaches to enhance the cross-border effectiveness of resolution actions. While statutory frameworks are the long-term goal, contractual solutions can serve as a practical interim measure. Jurisdictions are encouraged to coordinate and align their resolution regimes to ensure consistency, fairness, and legal certainty in cross-border resolution processes.