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Who Pays for Bank Insolvency 1st Edition David G.
Mayes Digital Instant Download
Author(s): David G. Mayes, Aarno Liuksila (eds.)
ISBN(s): 9784720043325, 4720043321
Edition: 1
File Details: PDF, 3.20 MB
Year: 2004
Language: english
Who Pays for Bank Insolvency?
Also by David G. Mayes and Aarno Liuksila
IMPROVING BANKING SUPERVISION (with Liisa Halme)
David G. Mayes
and
Aarno Liuksila
with
Thorsten Beck, Bethany Blowers, Henk Brouwer, Peik Granlund,
Christos Hadjiemmanuil, Gerbert Hebbink, Eva H. G. Hüpkes,
∂sson, Gary H. Stern, Sandra Wesseling
Eigil Mølgaard, Jón Sigur´
and Garry Young
Selection and editorial matter © David G. Mayes and
Aarno Liuksila 2004
Individual chapters © the contributors 2004
The views expressed in this publication are those of the authors and are
not necessarily those of the Bank of Finland.
All rights reserved. No reproduction, copy or transmission of this
publication may be made without written permission.
No paragraph of this publication may be reproduced, copied or transmitted
save with written permission or in accordance with the provisions of the
Copyright, Designs and Patents Act 1988, or under the terms of any licence
permitting limited copying issued by the Copyright Licensing Agency, 90
Tottenham Court Road, London W1T 4LP.
Any person who does any unauthorized act in relation to this
publication may be liable to criminal prosecution and civil claims
for damages.
The authors have asserted their rights to be identified
as the authors of this work in accordance with the Copyright,
Designs and Patents Act 1988.
First published 2004 by
PALGRAVE MACMILLAN
Houndmills, Basingstoke, Hampshire RG21 6XS and
175 Fifth Avenue, New York, N.Y. 10010
Companies and representatives throughout the world
PALGRAVE MACMILLAN is the global academic imprint of the Palgrave
Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd.
Macmillan® is a registered trademark in the United States, United Kingdom
and other countries. Palgrave is a registered trademark in the European
Union and other countries.
ISBN 978-1-349-51339-0 ISBN 978-0-230-52391-3 (eBook)
DOI 10.1057/9780230523913
This book is printed on paper suitable for recycling and made from fully
managed and sustained forest sources.
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Who pays for bank insolvency?/[edited by] David G. Mayes, Aarno Liuksila.
p. cm.
Includes bibliographical references and index.
10 9 8 7 6 5 4 3 2 1
13 12 11 10 09 08 07 06 05 04
Contents
Preface ix
Acknowledgements xii
Introduction 1
v
vi Contents
References 373
Index 381
List of Tables
vii
List of Figures
viii
Preface
This book addresses two concerns. The first is that, should large and
complex banks operating in more than one country get into difficulty,
adequate systems are not in place for organizing their orderly resolution.
The second consequential concern is that, if suitable exit mechanisms do
not exist, such banks will be tempted to run themselves on the basis that
they will be bailed out by the authorities, using taxpayers’ money, if dif-
ficulty arises – a typical example of reciprocal ‘moral hazard’. This could
also have adverse consequences for the rest of the economy and smaller
banks in particular.
The problem occurs where banks operate as a grouping under cen-
tralized management yet their parts are subject to resolution as separate
legal entities. This is particularly acute for the smaller countries of
Europe, where there is an important mismatch between bearing the eco-
nomic consequences of bank failures and adequate sharing of the legal
powers to resolve such groupings in the public interest of the countries
involved. The recent Winding-up Directive only addresses that part of
these problems which relate to the exit liquidation and reorganization
of branches of an EEA bank located in other EEA countries. The
Directive relates to the exercise of concurrent jurisdiction by ‘host’ and
‘home’ countries in the case of a single legal entity. With the coming
expansion of the EEA this concerns at least 20 countries.
There are two consequences in these circumstances. First, despite the
increased peer pressure at intergovernmental level in the form of the
Basel Committee discussions for improved management of risks by
banks themselves, an important challenge to the stability of the eco-
nomic system may remain. There are already worries that the Basel pro-
posals themselves may increase the overall volatility of the financial
system. If the authorities are not in a position to organize bank exits in
the event of substantial problems then there will be an incentive for
banks to take on ‘correlated risks’. This is the problem of herding – if too
many banks get into difficulty at the same time then the taxpayer will
bail the banks out because too many simultaneous failures would
threaten the stability of the financial system as a whole. The second
consequence is that the bailing out of large banks by the taxpayer inher-
ently results in substantial issues of competition and equity. The con-
sequences of realized risks may be shifted from those who have been
ix
x Preface
paid for taking them to those who have not and the playing field for fair
and efficient competition among banks may be tilted.
A key problem that emerges is delay. Delay tends to permit increasing
losses. If handling a large problem bank is difficult, there are strong
incentives for the supervisory authorities to delay action in the hope that
the problem will right itself, particularly that the private sector will be
able to come up with a solution. Unfortunately that optimistic outcome
only occurs some of the time and forbearance is likely to encourage risk-
taking and increase losses. Management in difficulty may already be fac-
ing their maximum loss in the sense of their jobs and share options.
When the problem is relatively small, several approaches to its solution
are possible; as it grows over time, only the taxpayer has the resources to
cover the eventual losses and the problem acquires the label ‘systemic’.
Although provisions for the orderly exit of banks that have ceased to
comply with the conduct-related conditions for registration are in place,
they have been impossible to apply in practice to close larger banks that
are failing or have failed in the economic sense. Sanctions other than
withdrawal of authorization appropriately apply to all banks for dis-
obeying instructions or breaching their own undertakings vis-à-vis reg-
ulators. The principal difficulty is one of law which is based on a
demonstrated disruption of payments rather than the economics of
intervention based on valuation.
The main business of the failed bank needs to continue uninterrupted
even if the legal ownership and management of the bank are changed in
the process. An efficient coordinated system of managing this transition
under rules that are known in advance needs to be in place. Such a sys-
tem exists in the United States where a single authority is required to act
promptly under public law to liquidate the assets and liabilities of
insured depository institutions in a way that minimizes the losses incurred
by the deposit insurer. Other possibilities exist and are discussed in the
Introduction. Chapters 6 and 11 argue strongly in favour of the ‘London
Approach’ in which the authorities rely on the equity courts for case
administration (judicial liquidations and reorganizations).
We, however, offer a simple transparent system based on a version of
the US public law approach, which could be widely adopted, particularly
by small countries that are home or host to large geographically dis-
persed banking groups. The authorities are required to act quickly to
effect an exit of the failed bank under a scheme that restructures its
assets, liabilities and equity as if it had been liquidated up-front, helping
to transform it without liquidation into a solid bank that can continue
the main business without interruption. This scheme of reorganization
measures was originally proposed in a companion book, Improving
Preface xi
DAVID G. MAYES
Acknowledgements
DAVID G. MAYES
AARNO LIUKSILA
xii
Notes on the Contributors
The editor(s)
David G. Mayes is Advisor to the Board at the Bank of Finland, Professor
of Economics at London South Bank University, and Honorary Professor
of Banking and Financial Institutions at the University of Stirling.
xiii
Introduction
Aarno Liuksila
This book stems from the papers contributed to the workshop organized
by the Bank of Finland in November 2002, on the topic, ‘Who Will Pay
for Bank Insolvency?’
The lightning rod for the discussion was an invitation to comment
on a ‘Proposed Bank Reorganisation and Liquidation Scheme’ (the
‘Proposed Scheme’) which had been published in Improving Banking
Supervision, by David Mayes, Liisa Halme and Aarno Liuksila in 2001.
The ‘who’ that will pay for bank insolvency under the Proposed Scheme
are the pre-existing shareholders and unsecured creditors that can
absorb their own losses – in all cases including individual banks of some
size and, in the systemic cases, subject to the adoption of a robust exit
policy that will eliminate delays in the initiation of the process of dis-
tribution of losses, and a requisite legal reform of case administration
that will eliminate delays in the completion of the process. Were
bailouts to occur, nevertheless, the Scheme would eliminate the inci-
dental benefits for the pre-existing shareholders and unsecured credi-
tors. Moreover, the substitution of concessions by the risk-takers for
contributions by taxpayers would re-establish the prudential incentives,
defeating the well-embedded expectations of solvency support from
public resources. The Scheme marshals the resources for meeting the
loss (negative net worth); by logical necessity, the prescribed conces-
sions from the pre-existing shareholders and unsecured creditors suf-
fices to restore the failed bank in a (marginally) solvent condition.
Hence, in its operation the Proposed Scheme is the very opposite of
many flexible case-by-case approaches that categorically deny, ex ante,
any ‘special treatment’ of failed or failing banks, except bailouts that deny
the ‘general treatment’ on a case-by-case basis. It applies in all cases,
including bailouts that might be carried out on a case-by-case basis.
1
D. G. Mayes et al., Who Pays for Bank Insolvency?
© Palgrave Macmillan, a division of Macmillan Publishers Limited 2004
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The Eighty-seventh FIGURE.
The Preparation necessary to the following Figure, and to all other
horizontal Perspectives, whether on flat or vaulted Ceilings.
Fig. lxxxviii.
Figura Octogesimaoctava.
Horizontalis projectio balaustiorum figuræ octogesimæseptimæ,
cum brevi distantia.
Fig. xc.
FIGURA Nonagesima.
Horizontalis projectio tholi.
Fig. xci.
Figura Nonagesimaprima.
Tholus figuræ nonagesimæ, cum luminibus & umbris.
Fig. xcii.
Figura Nonages. secunda.
Tholus octangularis.
Fig. xcv.
Figura Nonages. quinta.
Aliæ præparationes ad figuras nonagesimamoctavam &
nonagesimamnonam.
Fig. xcvii.
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