2009年-IMF国际货币组织全球_An_Overview_of_the_Legal_Institutional_and_Regulatory_Framework_for_Bank_Insolvency_76页_644kb

Summary of the Legal, Institutional, and Regulatory Framework for Bank Insolvency

Core Content

This document provides an overview of the legal, institutional, and regulatory framework that countries should establish to address bank insolvency. It is prepared by the staff of the International Monetary Fund (IMF) and the World Bank, with the purpose of informing their work and offering guidance to member countries. The study is divided into two parts: one focusing on financial stability, and the other on systemic banking crises.

Part I: Legal, Institutional, and Regulatory Framework in Times of Financial Stability

Key Objectives

• Safeguard the stability of the financial system.
• Provide a clear legal and institutional framework for handling bank insolvency.
• Ensure the protection of assets and the orderly resolution of insolvency cases.

Main Types of Bank Insolvency Proceedings

1. Official Administration

   • Purpose: To protect the bank's assets and assess its financial condition.
   • Phases: Diagnosis and restructuring/liquidation.
   • Key Elements:
     • Appointment, replacement, and discharge of the official administrator.
     • Transfer of control from owners/managers to the administrator.
     • Powers to continue operations and avoid unfair contracts.
     • Moratorium on collection activity (discretionary).
     • Licensing implications (revocation or suspension).
     • Confidentiality, transparency, and accountability.
     • Termination upon completion of restructuring or transfer to liquidator.

2. Bank Liquidation

   • Purpose: To realize assets and distribute proceeds to creditors.
   • Key Elements:
     • Appointment of liquidator.
     • Powers of liquidator (asset management, contract termination, etc.).
     • Supervision and oversight by appointing authority.
     • Moratorium on collection and legal actions.
     • Treatment of payment orders and financial contracts.
     • Avoidance of transactions that prejudice creditors.
     • Distribution to creditors and depositor pay-off.
     • Termination upon final distribution and reporting.

Bank Restructuring

• Techniques: Mergers, acquisitions, purchase-and-assumption, good-bank/bad-bank separation, bridge banks, and publicly-assisted restructuring.
• Legal Considerations:
  • Supervisory approval for restructuring plans and new shareholders.
  • Use of the bank's proprietary information for due diligence.
  • Transfer of assets and liabilities without creditor consent.
  • Confidentiality agreements and transparency requirements.

Part II: Legal, Institutional, and Regulatory Framework for Systemic Banking Crises

Key Features

• A qualitatively different framework from that of financial stability.
• Focus on protecting the payment system, limiting loss of confidence, and restoring solvency and liquidity.
• Framework should be flexible and responsive to the unpredictability of systemic crises.

General Considerations

• Crisis management typically involves three phases:
  1. Crisis Containment: Stabilizing creditor expectations and halting runs.
  2. Restructuring: Resolving distressed banks and restoring financial health.
  3. Asset Management: Restructuring nonperforming assets.

Institutional Arrangements

• Crisis Containment: Requires urgent policy and budgetary decisions.
• Restructuring: May involve existing banking authorities or a new agency. A separate agency offers benefits like avoiding conflicts of interest and concentrating expertise.
• Asset Management: Often handled by asset management companies (AMCs), which may be public or private. AMCs should be subject to adequate oversight and judicial review.

Regulatory and Legal Arrangements

• Crisis Containment Measures:

  • Emergency liquidity assistance.
  • Blanket guarantees (with emphasis on credibility).
  • Administrative measures (e.g., deposit freezes).
  • Exchange controls (when needed to stabilize the balance of payments).

• Bank Restructuring:

  • Legal framework should be reviewed and strengthened.
  • Differentiate between viable and non-viable banks.
  • Consider both private and public sector solutions.
  • Temporary nationalization may be an option in extreme cases, followed by privatization once conditions stabilize.

• Exiting Crisis Measures:

  • Policy of regulatory easing must be transparent and explicit.
  • Phased withdrawal of measures like blanket guarantees or administrative controls.
  • Deadlines may not be feasible at the onset of a crisis.

Key Recommendations

• Establish a clear legal framework for bank insolvency that distinguishes between official administration and liquidation.
• Define thresholds for initiating insolvency proceedings.
• Ensure accountability and judicial review for administrative actions.
• Provide statutory protection for banking authorities and their staff.
• Allow flexible and transparent mechanisms for crisis containment, restructuring, and asset management.
• Promote cooperation between international bodies to ensure complementary approaches.
• Implement periodic reporting and transparency in the liquidation process.
• Ensure effective oversight of asset management companies and other entities involved in crisis resolution.

Conclusion

The study underscores the importance of a robust and adaptable legal, institutional, and regulatory framework for handling bank insolvency, both in times of financial stability and during systemic crises. It emphasizes the need for clear procedures, accountability, and transparency, while also recognizing the evolving nature of financial sector regulation and the importance of international cooperation.