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Wessels, Bob --- "International insolvency law and EU bank resolution rules" [2019] ELECD 1628; in Haentjens, Matthias; Wessels, Bob (eds), "Research Handbook on Cross-Border Bank Resolution" (Edward Elgar Publishing, 2019) 132

Book Title: Research Handbook on Cross-Border Bank Resolution

Editor(s): Haentjens, Matthias; Wessels, Bob

Publisher: Edward Elgar Publishing

Section: Chapter 6

Section Title: International insolvency law and EU bank resolution rules

Author(s): Wessels, Bob

Number of pages: 45

Abstract/Description:

Cross-border or international restructuring and insolvency law provides limited options for such questions as which court has jurisdiction to decide in matters of restructuring or insolvency, which law is applicable, which powers does an insolvency holder have. This is true for corporate insolvency, and even more significant for bank insolvencies. Only a few countries have developed unilateral, bi-lateral or multilateral solutions, most prominently in the EU. Pan-European legislation, with legal effects beyond the EU are explained, including Title V BRRD (Arts. 87 – 92) on Cross-border group resolution and Title VI BRRD (Arts. 93 – 98) on relations with third countries. These effects are found in agreements with third countries, in a system for recognition and enforcement of third-country resolution proceedings, in resolution of Union branches, non-binding cooperation frameworks with third-country authorities, and the exchange of confidential information. Cross-border effectiveness of the resolution system under the BRRD, as fanned out in the Winding Up Directive is assessed, leading to the conclusion that its private international law framework is incoherent, doubtful as to its application of private international law rules, uncertain as to its interpretation, while the BRRD’s system of cooperation merely reflects a pleasant tea circle. On a global scale the steps towards an effective cross-border bank resolution framework, as taken by the Financial Stability Board (FSB) are limited and leave too much to the discretion of each individual jurisdictions. A plea is made to forcefully further develop instruments that facilitate cross-border corporate restructuring and insolvency, as found in the United Nations Commission on International Trade Law (UNCITRAL) non-instrument of the Model Law on Cross-border Insolvency, and its recent additions, a model law specifically addressing recognition and enforcement of insolvency-related judgments and its instrument on cross-border insolvency of enterprise groups, soon to be expected. The range of possibilities UNCITRAL has delivered are to be geared to the peculiarities of the financial sector, not to be taken by individual jurisdiction. The quest should be for a non-isolationist, global treaty or at least provide instruments for further development with the extension to banks, including such a tool as a protocol as used in the Lehman Brothers global case. It is necessary that more forceful and decisive steps are taken towards a trustworthy system guaranteeing resolution measures’ effectiveness of their cross-border effect.