Bank
(Recovery and Resolution) (Jersey) Law 2017
A LAW to provide for bank recovery
and resolution and for connected purposes.
Adopted
by the States 14th February 2017
Sanctioned by
Order of Her Majesty in Council 3rd May 2017
Registered by the Royal Court 12th May 2017
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
PART 1
PRELIMINARY
1 Interpretation
In this Law unless the context otherwise requires –
“1991 Law” means the Banking
Business (Jersey) Law 1991[1];
“2009 Regulations” means
the Banking Business (Depositors Compensation) (Jersey) Regulations 2009[2];
“Additional Tier 1 or Tier 2 capital”
shall have the same meaning as in the Directive;
“Additional Tier 1 instruments”
shall have the same meaning as in the Directive;
“affected creditor” means a
creditor whose claim relates to a liability that is reduced or converted to
shares by the exercise of the write down or conversion power pursuant to the application
of the bail-in tool;
“annual administration levy”
means the levy referred to in Article 16(1);
“associate” shall be construed
in accordance with Article 116(2);
“asset management vehicle” means
a legal person that meets the following requirements –
(a) it is wholly or
partially (directly or indirectly) owned by the Authority;
(b) it is controlled by the
Authority; and
(c) it has been created for
the purpose of receiving some or all of the assets, rights and liabilities of
one or more banks in resolution or bridge banks or both;
“asset separation tool” means
the mechanism described in Article 63(1) for effecting a transfer of
assets, rights or liabilities of a bank in resolution to an asset management
vehicle;
“Authority” means the Jersey
Resolution Authority established under Article 4;
“bail-in tool” means the
mechanism described Article 65(1) for recapitalizing a bank or exercise of
the write down or conversion power;
“bank” means a person to whom
this Law applies under Article 3(1);
“bank depositors compensation scheme”
has the meaning given by Regulation 1 of the 2009 Regulations;
“bank in resolution” means a
bank in respect of which resolution action is being taken;
“bank liquidation committee”
shall be construed in accordance with Article 101;
“bank liquidator” means a person
appointed as such under Article 98;
“bank winding up” means the
winding up of a bank under to a bank winding up order under Part 7;
“bank winding up order” means an
order for the winding up of a bank for which an application may be made under Article 90;
“branch” means a place of
business which forms part of a bank and which carries out directly all or some
of the transactions inherent in the business of that bank but does not have a
legal personality separate from the bank;
“bridge bank” mean a company
referred to in Article 58(1);
“bridge bank tool” means the
mechanism for transferring one or more shares of one or more banks that meet
the resolution conditions or all or any assets, rights or liabilities of one or
more banks in resolution described in Article 58(2);
“business reorganization plan” means
a business reorganization plan drawn up and implemented in accordance with Article 70;
“cause” has the meaning assigned to
it by the customary law of Jersey;
“client assets” means assets
which a bank has undertaken to hold for a client (whether or not on trust, and
whether or not the undertaking has been complied with);
“Commission” means the Jersey
Financial Services Commission established under Article 2 of the Financial
Services Commission (Jersey) Law 1998[3];
“Common Equity Tier 1 capital”
shall have the same meaning as in the Directive;
“Common Equity Tier 1 capital
ratio” shall have the same meaning as in the Directive;
“Common Equity Tier 1 instruments”
shall have the same meaning as in the Directive;
“Common Equity Tier 1 items”
shall have the same meaning as in the Directive;
“connected with a bank” shall be
construed in accordance with Article 116(1);
“conversion rate” means the
factor that determines the number of shares into which a liability of a
specific class will be converted, by reference either to a single instrument of
the class or to a specified unit of value of a debt claim;
“core business lines” means
business lines and associated services which represent material sources of
revenue, profit or franchise value for a bank or a bank’s group;
“Court” means the Royal Court;
“covered bond” means a bond
issued by a bank where sums deriving from the issue of those bonds must be
invested in assets which, during the whole period of validity of the bonds, are
capable of covering claims attaching to the bonds and which, in the event of
failure of the bank, would be used on a priority basis for the reimbursement of
the principal and payment of the accrued interest;
“covered
deposit” means the part of an eligible deposit, or the part of a deposit
that would be an eligible deposit of a bank incorporated in Jersey if it was
not held in a bank account in a branch outside Jersey, that does not exceed the
maximum amount of compensation payable to any depositor –
(a) under the 2009 Regulations; or
(b) under the laws of the bank’s home jurisdiction or relevant
jurisdiction up to a maximum of £85,000,
whichever is greater;
“crisis management measure”
means –
(a) the exercise of a
stabilization power in relation to a bank by the Authority;
(b) the recognition of a
foreign resolution action by the Authority;
(c) the exercise of a
stabilization power in support of a foreign resolution action by the Authority;
“crisis prevention measure” means –
(a) the imposition by the
Authority or Commission of a requirement to take specified measures with
respect to a bank’s recovery plan;
(b) the imposition by the
Authority or Commission of a requirement to take measures to remove impediments
to recoverability of a bank;
(c) the imposition of an
early intervention measure described in Article 31(4);
(d) the appointment of a
temporary administrator under Article 32(1); or
(e) the exercise of the
write down or conversion power described in Article 74;
“critical functions” means
activities, services or operations the discontinuance of which is likely to
lead to the disruption of services that are essential to the real economy in
Jersey or the disruption of financial stability due to the size, market share,
external and internal interconnectedness, complexity, or cross-border
activities of a bank or bank’s group, with particular regard to the
substitutability of those activities, services or operations;
“debt instruments” means bonds
and other forms of transferable debt, instruments creating or acknowledging
debt, and instruments giving rights to acquire debt instruments;
“definitive valuation” shall be
construed in accordance with Article 46;
“deposit” has the meaning given by
Article 2 of the 1991 Law, and “depositor”
shall be construed accordingly;
“Depositors Compensation Fund”
means the compensation fund established in respect of the bank under Regulation 17
of the 2009 Regulations;
“derivative contracts” means –
(a) options, futures,
swaps, forward rate agreements and any other derivative contracts relating to
securities, currencies, interest rates or yields, or other derivatives
instruments, financial indices or financial measures which may be settled
physically or in cash;
(b) options, futures,
swaps, forward rate agreements and any other derivative contracts relating to
commodities that must be settled in cash or may be settled in cash at the
option of one of the parties (otherwise than by reason of a default or other
termination event);
(c) options, futures,
swaps, and any other derivative contract relating to commodities that can be
physically settled if they are traded on a regulated market or a multilateral
trading facility;
(d) options, futures,
swaps, forwards and any other derivative contracts relating to commodities that
can be physically settled, not otherwise mentioned in paragraph (c) and
not being for commercial purposes, and which have the characteristics of other
derivative financial instruments, having regard to whether, inter alia, they
are cleared and settled through recognized clearing houses or are subject to
regular margin calls;
(e) derivative instruments
for the transfer of credit risk;
(f) financial contracts
for differences; or
(g) options, futures,
swaps, forward rate agreements and any other derivative contracts relating to
climatic variables, freight rates, emission allowances or inflation rates or
other official economic statistics that must be settled in cash or may be
settled in cash at the option of one of the parties (otherwise than by reason
of a default or other termination event), as well as any other derivative
contracts relating to assets, rights, obligations, indices and measures not
otherwise mentioned, which have the characteristics of other derivative
financial instruments, having regard to whether, inter alia, they are traded on
a regulated market or a multilateral trading facility, are cleared and settled
through recognized clearing houses or are subject to regular margin calls;
“difference of treatment valuation”
means a valuation carried out under Article 77(1);
“Directive”
means Directive 2014/59/EU of the European Parliament and of the Council
of 15 May 2014 establishing a framework for the recovery and
resolution of credit institutions and investment firms and amending Council
Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC,
2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU)
No 1093/2010 and (EU) No 648/2012, of the European Parliament and of
the Council (OJ L 173, 12.6.2014, p. 190);
“early intervention measure” shall be construed in
accordance with Article 31;
“eligible deposit” has the meaning given by Regulation 1
of the 2009 Regulations;
“eligible depositor” has the meaning given by Regulation 1
of the 2009 Regulations;
“eligible liabilities” means liabilities
and capital instruments that do not qualify as Common Equity Tier 1
instruments, Additional Tier 1 instruments or Tier 2 instruments of a
bank that are not excluded from the exercise of the write down or conversion power
under Article 65(7);
“extraordinary public financial support”
shall be construed in accordance with Article 73;
“financial contracts” includes
the following contracts and agreements –
(a) securities contracts,
including –
(i) contracts for the purchase, sale or loan
of a security, a group or index of securities,
(ii) options on a security or group or index of
securities, and
(iii) repurchase or reverse repurchase
transactions on any such security, group or index;
(b) commodities contracts,
including –
(i) contracts for the purchase, sale or loan
of a commodity or group or index of commodities for future delivery,
(ii) options on a commodity or group or index
of commodities, and
(iii) repurchase or reverse repurchase
transactions on any such commodity, group or index;
(c) futures and forwards
contracts, including contracts (other than a commodities contract) for the
purchase, sale or transfer of –
(i) a commodity or property of any other
description,
(ii) a service, or
(iii) a right or interest,
for a specified price at a future date;
(d) swap agreements,
including –
(i) swaps and options relating to interest
rates, spot or other foreign exchange agreements, currency, an equity index or
equity, a debt index or debt, a commodity index or commodity, weather,
emissions or inflation,
(ii) total return, credit spread or credit
swaps, and
(iii) any agreements or transactions that are
similar to an agreement referred to in clause (i) or (ii) which
is the subject of recurrent dealing in the swaps or derivatives markets;
“foreign bank” means a bank, the
head office of which is established in a jurisdiction other than Jersey;
“foreign resolution action” means
an action under the law of a jurisdiction, other than Jersey, to manage the failure
or likely failure of a foreign bank where such action is comparable, in terms
of objectives and anticipated results, to a resolution action under this Law;
“foreign resolution instrument” means
an instrument made by the Authority under Article 89(1);
“Fund” means the Jersey Bank
Resolution Fund established under Article 22;
“general principles of resolution”
shall be construed in accordance with Article 35;
“government financial assistance tool”
means the mechanism described in Article 73 for providing extraordinary
public financial support to a bank;
“group” means a parent and its
subsidiaries;
“group entity” means a legal
person that is part of a group;
“holding company” has the
meaning given by Article 2(4) of the Companies (Jersey) Law 1991[4];
“home jurisdiction”, in relation
to a bank, means the jurisdiction in which the bank is incorporated;
“home regulatory supervisor”, in
relation to a bank, means the supervisor of banks in the bank’s home
jurisdiction;
“home resolution authority” in
relation to a bank, means the resolution authority in the bank’s home
jurisdiction;
“inspector” means a person
appointed to investigate the affairs of a bank under Article 143;
“instruments of ownership” mean
shares, instruments that are convertible into or give the right to acquire
shares, and instruments representing interests in shares;
“international obligations notice”
means a notice served by the Authority under Article 86(1);
“intragroup financing agreement”
means a contract by which one group entity guarantees the obligations to a
third party of another group entity within the same group;
“Jersey bank” means a person
referred to in Article 3(1)(a);
“Jersey Bank Depositors Compensation
Board” means the Board established under Regulation 8(1) of the 2009 Regulations;
“management”, in relation to a
bank, includes the directors and senior managers, and, if applicable, former directors
or former senior managers of a bank who are responsible both individually and
collectively;
“mandatory reduction instrument”
means an instrument issued by the Authority in accordance with Article 74(1)
to exercise the write down or conversion power;
“Minister” means the Chief
Minister;
“netting arrangement” means an
arrangement under which a number of claims or obligations can be converted into
a single net claim, including close-out netting arrangements under which, on
the occurrence of an enforcement event (however or wherever defined) the
obligations of the parties are accelerated so as to become immediately due or
are terminated, and in either case are converted into or replaced by a single
net claim, and “netting right” shall be
construed according;
“own funds” shall have the same
meaning as in the Directive;
“parent”, in relation to a bank,
means the body that wholly owns and manages the bank;
“pre-resolution valuation” shall
be construed in accordance with Article 44;
“prescribed” means prescribed by
an Order made by the Minister;
“property transfer instrument”
means an instrument for the transfer of assets, rights or liabilities;
“provisional valuation” shall be
construed in accordance with Article 45;
“qualifying holding”, in
relation to a bank, means a shareholding that entitles the holder either alone
or with any associate of the holder to exercise, or control exercise of, more
than 3% of the voting power in a general meeting of the bank or the bank’s
holding company;
“recipient” means the person or
entity to which shares, debt instruments, assets, rights or liabilities, or any
combination of those items are transferred from a bank in resolution;
“recognized foreign resolution action”
means a foreign resolution action which is, or part of which is, recognized by
the Authority under Article 89(1);
“recovery plan” mean a recovery
plan drawn up and maintained by a Jersey bank in accordance with Article 23;
“Registrar” means the registrar
appointed pursuant to Article 196 of the Companies (Jersey) Law 1991[5];
“regulated market” means a
multilateral system operated or managed by a market operator, which brings
together or facilitates the bringing together of multiple third-party buying
and selling interests in financial instruments in the system and in accordance
with its non-discretionary rules in a way that results in a contract, in
respect of the financial instruments admitted to trading under its rules or
systems, and which is authorized and functions regularly and in accordance with
the provisions of Title III of the Directive 2004/39/EC of the
European Parliament and of the Council of 21 April 2004 on markets in
financial instruments amending Council Directives 85/611/EEC and 93/6/EEC
and Directive 2000/12/EC of the European Parliament and of the Council and
repealing Council Directive 93/22/EEC (OJ L 145, 30.4.2004, p. 1);
“Regulations” means Regulations
made under this Law;
“relevant capital instruments”
means Additional Tier 1 instruments and Tier 2 instruments;
“relevant insolvency proceedings”
means –
(a) proceedings for a bank
winding up order under Part 7;
(b) where the Authority
recognizes the resolution action of a home resolution authority or the relevant
resolution authority, proceedings for making a bank insolvent under the laws of
the bank’s home jurisdiction or relevant jurisdiction, as the case may be; or
(c) in the case of the application
of a stabilization tool by the Authority, proceedings for a bank winding up order
under Part 7 or proceedings for making a bank insolvent under the laws of
the bank’s home jurisdiction or relevant jurisdiction whichever is chosen by
the Authority;
“relevant jurisdiction”, in
relation to a bank, means the jurisdiction in which the bank’s relevant
resolution authority is located;
“relevant regulatory supervisor”
in relation to a bank, means the supervisor of banks in the bank’s relevant
jurisdiction;
“relevant resolution authority”
in relation to a bank, means –
(a) a resolution authority
(other than the home resolution authority) in a jurisdiction in which the bank
has a branch, where that resolution authority can take a resolution action with
respect to the branch; and
(b) a resolution authority
(other than the home resolution authority) in a jurisdiction in which a holding
company of which the bank is a subsidiary is incorporated, where that
resolution authority can take a resolution action with respect to the holding
company;
“residual bank” means, in
circumstances where part of the business of a bank has been sold to a private
sector purchaser using the sale of business tool, or transferred to a bridge
bank using the bridge bank tool, the non-sold or non-transferred part of the
bank;
“resolution” means the
application under this Law of a resolution tool to achieve one or more of the
resolution objectives;
“resolution action” means a decision
to place a bank (that satisfies the resolution conditions) in resolution, the
application of a resolution tool or the exercise of a resolution power;
“resolution authority” means the
Authority or any other authority in a jurisdiction other than Jersey authorized
by the law of that jurisdiction to exercise the powers and to carry out
functions similar to that of the Authority;
“resolution conditions” means
the conditions set out in Article 34(1);
“resolution instrument” means an
instrument effecting the decision of the Authority regarding the resolution of
a bank;
“resolution objectives” means the
resolution objectives specified in Article 33;
“resolution plan” means a
resolution plan drawn up for a Jersey bank by the Authority under Article 24;
“resolution power” means a the
power specified in Article 29;
“resolution safeguard” means a
safeguard set out under Articles 76 to 85 or any other prescribed
resolution safeguard;
“resolution tool” means a stabilization
tool or a bank winding up;
“resolvability assessment” means
an assessment carried out under Article 25(1);
“sale of business tool” means the
mechanism for effecting a sale of all or part of the business of a bank that
meets the resolution conditions to one or more purchasers that are not bridge
banks in accordance with Article 51(1);
“secured liability” means a
liability where the right of the creditor to payment or other form of
performance is secured by a hypothec, security interest, charge, pledge or lien
or collateral arrangements, including liabilities arising from repurchase
transactions and other title transfer collateral arrangements;
“security interest” means –
(a) a continuing security
interest to which, as referred to in Article 1A of the Security Interests
(Jersey) Law 1983[6], that Law applies; or
(b) a security interest
within the meaning of the Security Interests (Jersey) Law 2012[7];
“senior manager”, in relation to
a bank, means a natural person who exercises executive functions within the
bank and who is responsible and accountable to the management for the
day-to-day management of the bank and “senior management shall be construed”
accordingly;
“set-off arrangement” means an
arrangement under which 2 or more claims or obligations owed between the bank
in resolution and a counterparty can be set off against each other, and “set-off right” shall be construed according;
“shareholder” means a holder of shares
or holders of other instruments of ownership;
“shares” includes shares and
other instruments of ownership;
“share transfer instrument”
means an instrument for the transfer of shares;
“share transfer order” means an order
for the transfer of shares;
“stabilization power” means a
resolution power which relates specifically to the application of a stabilisation
tool;
“stabilization tool” means the sale
of business tool, bridge bank tool, asset separation tool, bail-in tool or government
financial assistance tool;
“States’ employee” has the
meaning given by Article 2 of the Employment of States of Jersey Employees
(Jersey) Law 2005[8];
“States Police Force” has the meaning
given by Article 1 of the States of Jersey Police Force Law 2012[9];
“subsidiary” shall be construed
in accordance with Article 2 of the Companies (Jersey) Law 1991[10];
“temporary administrator” means
a person appointed as such under Article 32(1);
“Tier 1 capital” shall have
the same meaning as in Directive;
“Tier 2 capital” shall have
the same meaning as in the Directive;
“Tier 2 capital instruments”
shall have the same meaning as in the Directive;
“Tier 2 instruments” shall
have the same meaning as in the Directive;
“title transfer financial collateral
arrangement” has the meaning given by Article 2.1(97) of the
Directive;
“transfer power” means the power
to transfer shares, debt instruments, assets, rights or liabilities, or any
combination of those items, from a bank in resolution to a recipient;
“valuation” means a
pre-resolution valuation; provisional valuation, definitive valuation or
difference of treatment valuation;
“winding up” means, in relation
to a bank, the realization of the assets of the bank and the distribution of
the assets to those entitled to receive them;
“write down or conversion power”
means the power to write down or convert relevant capital instruments of a bank
in accordance with Article 74.
2 Circumstances
in which a bank is deemed to be failing or likely to fail
For
the purposes of this Law, a bank shall be deemed to be failing or likely to
fail in one or more of the following
circumstances –
(a) the bank has failed to
continue to satisfy the Commission that it is a fit and proper person to be
registered to undertake deposit-taking business in accordance with Article 10(3)(a)
of the 1991 Law (including that the bank has incurred or is likely to
incur losses that will deplete all or a significant amount of its own funds);
(b) the value of the assets
of the bank determined in accordance with the pre-resolution valuation of the
bank is less than the value of its liabilities as so determined;
(c) the bank is unable to
pay its debts as they fall due;
(d) one or more of sub-paragraphs (a) to (c)
will, in the near future, apply to the bank; or
(e) extraordinary public
financial support is required in respect of the bank except when, in order to
remedy a serious disturbance in the economy of Jersey and preserve financial
stability, the extraordinary public financial support is provided temporarily
to a solvent bank and takes any of the following forms –
(i) a States guarantee –
(A) to back liquidity facilities, or
(B) of newly issued liabilities,
in accordance with the Public Finances (Jersey) Law 2005[11], or
(ii) an injection of own
funds or purchase of capital instruments at prices and on terms that do not
confer an advantage upon the bank, where the circumstances referred to in sub-paragraphs (a),
(b) or (c) are not present and the write down or conversion power has not
been exercised at the time that the extraordinary public financial support is
granted.
3 Application
(1) Subject to paragraph (2),
this Law applies to –
(a) a person registered to
carry on deposit-taking business in or from within Jersey under the 1991 Law;
or
(b) a company incorporated
under the Companies (Jersey) Law 1991[12] that is a holding company or
a subsidiary of a person specified in paragraph (1)(a).
(2) Where a stabilization power is exercised in respect of a bank,
it does not cease to be a bank for the purposes of this Law if it is no longer
registered as referred to in paragraph (1)(a) as a result of a resolution
action.
PART
2
JERSEY RESOLUTION AUTHORITY
4 Establishment of the Authority
(1) There shall be
established a body to be known as the Jersey Resolution Authority.
(2) The Authority shall be
a body corporate with perpetual succession and a common seal and may –
(a) sue and be sued in its
corporate name;
(b) enter into contracts
and acquire, hold and dispose of any property; and
(c) so far as possible for
a body corporate, exercise the rights, powers and privileges and incur the
liabilities and obligations of a natural person of full age and capacity.
(3) The application of the
common seal of the Authority shall be authenticated by the signature of a
person authorized by the Authority to sign on its behalf and every document
bearing the imprint of the common seal of the Authority shall be deemed to be
properly sealed unless the contrary is proved.
(4) Except as this Law
provides to the contrary, the Authority shall be independent of the Minister
and of the States and neither the Minister nor the States shall be liable for
any act or omission, or debt or other obligation, of the Authority.
5 Appointment of members of the Authority
(1) The Authority shall comprise
at least 3 members appointed by the Minister –
(a) at least one of whom represents
the Commission; and
(b) at least one of whom represents
the Minister.
(2) The Minister shall designate
a member of the Authority to be the Chairman.
(3) The functions, powers,
rights and obligations of the Authority shall not be affected by any vacancy in
its membership or a defect in the appointment of any member.
(4) Where no appointment is
made by the Minister under paragraph (1), the Minister may appoint a
States’ employee, public authority or other person to discharge the functions
of the Authority.
(5) A
person appointed under paragraph (4) shall have all the functions, powers,
rights and obligations of the Authority under this Law and shall notwithstanding
paragraphs (1), (2), (6) and (7) be deemed to be the Authority for the
purposes of this Law.
(6) A member
of the Authority other than the Chairman, may designate a person to be an
alternate member to attend, in place of the member, meetings of the Authority
that the member is for any reason unable to attend.
(7) When attending meetings of the Authority, an alternate member designated
under paragraph (6) shall for all purposes be deemed to be a member of the
Authority.
6 Terms of appointment of members and procedures at
meetings of the Authority
(1) Schedule 1 shall
have effect with respect to the terms of appointment of members of the Authority
and the procedures at meetings of the Authority.
(2) Subject to the
provisions of this Law, the Authority may regulate its own procedures.
7 Functions of the Authority
The Authority shall
have the following functions –
(a) to make preparations to facilitate the resolution of banks;
(b) to administer the resolution
of banks;
(c) to carry out such
functions in relation to bank resolution or recovery or such incidental or
ancillary matters as are required or authorized by this Law or the Regulations;
and
(d) to carry out such other
functions as are conferred on it by this Law or any other enactment.
8 Guiding principles
In exercising any of its functions, the Authority may take into
account any matter which it considers appropriate but shall, in particular,
have regard to –
(a) the reduction of the
risk to the public of financial loss due to the financial unsoundness of a
person to whom this Law applies;
(b) the protection and
enhancement of the reputation and integrity of Jersey in commercial and
financial matters; and
(c) the best economic
interests of Jersey.
9 General powers of the Authority
(1) The Authority has the power to do anything that
is calculated to facilitate, or that is incidental or conducive to, the
exercise of any of its functions under this Law including –
(a) the exercise of its
resolution powers under Article 29;
(b) the exercise of its powers
of investigation under Part 8; and
(c) the power to routinely
examine a bank, including the power –
(i) to require the bank to supply information in a format
and at times specified by the Authority, or
(ii) to give a direction to the bank to take
measures which, in the opinion of the Authority, are required to address
impediments to the effective exercise of the resolution powers.
(2) Without prejudice to
the generality of paragraph (1), the Authority may, in connection with the
carrying out of its functions –
(a) subject to Part 9, seek and exchange
information relating to resolution carried on in or outside Jersey;
(b) consult and seek the advice of such persons
or bodies, whether inside or outside Jersey, as it considers appropriate;
(c) subject to Part 9, publish, in such
manner as it considers appropriate, such information relating to its functions
as it thinks fit; and
(d) provide advice, assistance or services to
any person with a view to securing the efficient and effective carrying on of
deposit-taking business in or from within Jersey.
10 Limitation of liability of Authority
(1) A person or body to whom this Article applies
shall not be liable in damages for anything done or omitted in the discharge or
purported discharge of any function under, or authorized by or under, this Law
or any other enactment unless it is shown that the act or omission was in bad
faith.
(2) This Article applies to –
(a) the Authority, any member or alternate
member of the Authority or any person who is, or is acting as, an officer, employee
or agent of the Authority or who is performing any duty or exercising any power
on behalf of the Authority or under the control of the Authority;
(b) the States or any Minister in respect of
any delegation of functions to the Authority; and
(c) a person appointed under Article 5(4)
in respect of the discharge of the functions of the Authority or any member or
any person who is, or is acting as, an officer, employee or agent of the person
appointed under Article 5(4) or who is performing any duty or exercising
any power on behalf of that person or under the control of that person.
(3) The limitation of
liability under this Article does not apply so as to prevent an award of
damages made in respect of an act on the ground that the act was unlawful as a
result of Article 7(1) of the Human Rights (Jersey) Law 2000[13].
11 Appointment and remuneration of staff
(1) The Authority may appoint such officers, employees
and agents as it considers necessary for carrying out its functions.
(2) The Authority may –
(a) make appointments under paragraph (1) on
such terms as to remuneration, expenses, pensions and other conditions of
service as it thinks fit; and
(b) establish and maintain such schemes or make
such other arrangements as it thinks fit for the payment of pensions and other
benefits in respect of its officers and employees.
12 Delegation
to members and officers
(1) Where any functions or powers are conferred
upon or vested in the Authority by or under this Law or any other enactment,
the Authority may delegate such functions or powers wholly or partly to –
(a) the Chairman;
(b) one or more members; or
(c) an officer of the Authority.
(2) Nothing in this Article shall authorize the
Authority to delegate –
(a) its power of delegation under paragraph (1);
or
(b) the review of any of its decisions.
(3) The delegation of any functions under this
Article –
(a) shall not prevent the exercise of those
functions by the Authority itself; and
(b) may be amended or revoked by the Authority.
13 Guidance and directions
(1) The Minister may, after consulting the Authority
and where the Minister considers that it is necessary in the public interest to
do so, give to the Authority guidance or give, in writing, general directions
in respect of the policies to be followed by the Authority in relation to the resolution
of a bank in Jersey and the manner in which any function of the Authority is to
be carried out.
(2) The Authority shall, in carrying out any of
its functions, have regard to any guidance and act in accordance with any
directions given to it by the Minister under this Article.
14 Publication of information and advice
(1) The Authority may
publish information or give advice or arrange so to do in such form and manner
as it considers appropriate with respect to –
(a) the operation of this
Law, or any other enactment in connection with resolution of banks, including,
in particular, the rights of depositors, the duties of a bank and the steps to
be taken for enforcing those rights or complying with those duties;
(b) any matters relating to
the functions of the Authority under this Law or any other enactment; or
(c) any other matters
relating to the resolution of a bank about which it appears to it to be
desirable to publish information or give advice concerning –
(i) the reduction of the risk to the public of
financial loss due to dishonesty, incompetence or malpractice by, or the
financial unsoundness of, persons carrying on deposit-taking business in or
from within Jersey,
(ii) the protection and enhancement of the
reputation and integrity of Jersey in commercial and financial matters, or
(iii) the best economic interests of Jersey.
(2) The Authority may offer for sale copies of
information published under this Article and may, if it thinks fit, make a
reasonable charge for advice given under this Article at any person’s request.
(3) Nothing in this Article shall be construed
as authorizing the disclosure of information in any case where, apart from the
provisions of this Article, its disclosure is prohibited under another law.
15 Funding of the Authority
The funds and
resources of the Authority are –
(a) the annual administration levy payable under
Article 16;
(b) any grant paid to the Authority under Article 17;
(c) any money borrowed by the Authority
accordance with Article 18; and
(d) any other money or property, and any income
derived from such money or property, as is lawfully vested in the Authority
through the exercise of its powers under this Law.
16 Annual administration levy
(1) A levy may be
raised by the Authority in any year to enable the Authority to do any of the
following –
(a) to meet the Authority’s
expected recurring administrative costs in that year;
(b) to provide or maintain
a reserve, of an amount appearing to the Authority to be prudent in that year,
against potential administrative costs in future years (whether by way of
contingency, allowance for depreciation, or otherwise); and
(c) to provide or maintain
a reserve, of an amount appearing to the Authority to be prudent in that year,
against the possibility, in the event of resolution action in respect of a bank
in that year or any subsequent year, of the Authority wishing to pay administrative
costs without needing to wait for receipt of other funding for those costs.
(2) The provisions of this Article apply to any
year irrespective of whether any resolution action in respect of any bank is
applied by the Authority.
(3) The Authority –
(a) shall review, in the
light of its budget referred to in Article 21(1), whether it will need to
raise an annual administration levy;
(b) may, in the light of the
review under paragraph (a), decide to raise an annual administration levy;
and
(c) must, if it decides to
raise an annual administration levy under paragraph (b), decide the amount
to be raised as such annual administration levy.
(4) A Jersey bank is liable to pay to the Authority
an annual administration levy in respect of a year –
(a) for
which the Authority decides to raise an annual administration levy under paragraph (3);
and
(b) if the
Jersey bank is registered during any part of that year, irrespective of whether
or not it is registered during any other part of that year.
(5) The Minister may, by notice to the Authority,
direct the Authority not to raise more than a specified amount of annual administration
levy for a specified year.
(6) An amount specified under paragraph (5)
applies to years subsequent to the specified year, unless the Minister
withdraws or amends the notice.
(7) The Authority –
(a) must decide and apply
the method of calculation of the annual administration levy to be paid by each Jersey
bank liable to pay an annual administration levy; and
(b) must, as soon as
practicable, send a written notice to each Jersey bank, requiring it to pay the
annual administration levy.
(8) The notice must specify –
(a) the annual
administration levy the Jersey bank is required to pay;
(b) the method of
calculation of the annual administration levy; and
(c) the date or dates on
which the annual administration levy or any instalment of the annual administration
levy becomes payable.
(9) If, at any time, the Authority
is satisfied that it has become necessary to do so, it may, by written notice
sent to each Jersey bank required to pay the annual administration levy, increase
the amount of the annual administration levy and require each Jersey bank to
pay an additional amount as an instalment of the increased annual
administration levy.
(10) A Jersey bank to which
a notice has been sent under this Article must pay the annual administration levy
or any instalment of the annual administration levy within 5 working days
of the date specified in the notice as the date when the amount of the annual
administration levy or any instalment of the amount becomes payable.
(11) An annual
administration levy that has become payable is recoverable as a debt due to the
Authority.
(12) If the Authority has
accepted a payment as a contribution from a Jersey bank towards the Authority’s
recurring administrative costs, other than as an annual administration levy,
the Authority shall –
(a) disregard the
contribution in deciding the amount under paragraph (3)(c), and give
credit for the contribution against the amount calculated under paragraph (7)
in respect of that Jersey bank; or
(b) reduce the levy raised under
paragraph (1) to reflect the payment before calculating the amount due in
respect of each Jersey bank under paragraph (7).
(13) For the purpose of paragraph (4) “registered”
means registered to carry on deposit-taking business in
or from within Jersey under the 1991 Law.
17 Grants to the Authority
(1) In
respect of each financial year, the States may make a grant to the Authority from
their annual income towards the expenses of the Authority in carrying out any
of its functions.
(2) The
amount of any grant under paragraph (1) shall be determined by the
Minister after consultation with the Authority, and in determining that amount
the Minister shall have regard to the financial position and projected
financial position of the Authority.
18 Borrowing by the Authority
(1) For the purpose of enabling the Authority
to carry out its functions, the Authority may borrow monies up to such amount
as may be prescribed.
(2) The Minister may, on such terms as the
Minister may determine, on behalf of the States –
(a) guarantee
the liabilities of the Authority; or
(b) lend
monies to the Authority,
up to the
maximum amount the Authority may borrow under paragraph (1).
19 Investment of surplus funds
The Authority may
invest any of its funds which are not immediately required by the Authority.
20 Exemption
from income tax and GST
(1) The income of the Authority
shall not be liable to income tax under the Income Tax (Jersey) Law 1961[14].
(2) The
Authority shall not be liable under the Goods and Services Tax (Jersey) Law 2007[15]
to GST on goods and services supplied or goods
imported for the purposes of carrying out its functions under this Law.
(3) In this Article “GST” has the meaning given by Article 1
of the Goods and Services Tax (Jersey) Law 2007[16].
21 Accounts, audit and reports
(1) The Authority shall
adopt a budget for each financial year, and may vary its budget at any time
during the financial year.
(2) The Authority shall –
(a) keep proper accounts
and proper records in relation to its accounts that permit its financial
position to be ascertained with reasonable accuracy at any time; and
(b) in accordance with paragraph (4),
prepare accounts in respect of each financial year and a report on its
operations during each financial year.
(3) The
Authority’s accounts must set out the income and
expenditure of the Fund separately from any other money received, held or
expended by the Authority.
(4) The
accounts of the Authority must be prepared in accordance
with generally accepted accounting principles and show a true and fair view of
the profit or loss of the Authority for the financial year and of the state of
the Authority’s affairs at the end of the financial year.
(5) The Authority shall,
within 3 months after the end of the financial year, have its accounts
audited by an auditor.
(6) The Authority shall,
within 3 months after its accounts have been audited, provide the Minister
with –
(a) its audited accounts;
(b) the report of the
auditor; and
(c) the report prepared by
the Authority under paragraph (2)(b).
(7) The report provided
to the Minister under paragraph (6)(c) must contain –
(a) details of the
Authority’s activities during the financial year; and
(b) such other information
as the Minister may direct the Authority to provide.
(8) The
Minister must lay a copy of the audited accounts and the reports provided to
him or her under paragraph (6) before the States not later than 7 months
after the end of each financial year.
(9) In
this Article “financial year” means the period beginning with the day on which
this Law comes into force and ending with the 31st day of December next
following and each subsequent period of 12 months ending with the 31st day
of December in each year.
(10) In
this Article “auditor” has the meaning given by Article 102(1)
of the Companies (Jersey) Law 1991[17].
PART 3
JERSEY
BANK RESOLUTION FUND
22 Establishment and
management of Fund
(1) There is established a
fund to be known as the Jersey Bank Resolution Fund for the purpose of ensuring
the effective exercise by the Authority of the resolution powers and
application by the Authority of the resolution tools.
(2) The Fund shall be controlled,
managed and administered by the Authority.
(3) The Authority shall
have the power –
(a) to recover from a bank any
funds paid or payable out of the Fund by the Authority in respect of –
(i) any action taken by the Authority in order
to consider whether to take a resolution action or recognize a foreign
resolution action in respect of the bank, or
(ii) the taking of a resolution action or
recognition of a foreign resolution action in respect of the bank;
(b) in accordance with paragraph (8),
to raise contributions from Jersey banks, other than the bank referred to in paragraph (a)
, where funds referred to in sub-paragraph (a) are insufficient and shall –
(i) decide and apply the method of calculating
the amount of the contributions to be paid by each Jersey bank liable to pay
such contributions,
(ii) determine the date by which the contributions
must be paid, and
(iii) give written notice to each Jersey bank
requiring it to pay the contributions and specifying –
(A) the amount of the
contribution the Jersey bank is required to pay,
(B) the method of
calculation of the contribution, and
(C) the date or dates on
which the contribution becomes payable;
(c) to borrow from any
source, including the strategic reserve fund (within the meaning given by Article 1(1)
of the Public Finances (Jersey) Law 2005[18]).
(4) All monies received by
or on behalf of the Authority under this Article, whether by way of
contributions, loans or otherwise, shall be paid into the Fund.
(5) Subject to paragraphs (6),
(7) and (8), the Authority may only use the Fund –
(a) in accordance with the
general principles of resolution;
(b) where
reasonable effort has been made by the Authority to raise the required funds
for a bank resolution from private funds and every source of such private funds
has been exhausted or the Authority is satisfied that there is no reasonable
prospect of the required funds being available within the timeframe in which they
will be required;
(c) where the use of the
Fund is necessary to achieve the resolution objectives; and
(d) to the extent necessary
to ensure the effective application of a stabilization tool for the following
purposes –
(i) to
guarantee the assets or liabilities of a bank in resolution, its subsidiaries,
a bridge bank or an asset management vehicle or, where a sale of business tool
is applied, a purchaser,
(ii) to
purchase assets of a bank in resolution,
(iii) to
make contributions to a bridge bank or an asset management vehicle or, where a
sale of business tool is applied, a purchaser,
(iv) to
pay contributions to a bridge bank or an asset management vehicle,
(v) to
pay compensation to shareholders or creditors in accordance with the general principle
of resolution under Article 35(g) and the resolution safeguard in Article 78,
(vi) to
make a contribution to a bank in resolution in lieu of the exercise of the write
down or conversion power, when the bail-in tool is applied and the Authority
decides to exclude certain creditors from the scope of the bail-in in
accordance with Article 65(8), and
(vii) to
take any combination of the actions referred to in clauses (i) to (vi).
(6) The
Fund shall not be used to directly absorb the losses of a bank in resolution or
to recapitalize such a bank unless otherwise provided in this Law.
(7) Any
amounts withdrawn from the Fund and used for the purposes set out in paragraph (5)
(including use which results in part of the losses of a bank in resolution
being passed on to the Fund) shall be recoverable from the bank in resolution
in accordance with the general principles of resolution and may be recovered as
contributions in accordance with paragraph (3)(b).
(8) The maximum aggregate amount
that the Jersey banks, other than the bank in resolution, must contribute to the
Fund under paragraph (3)(b) for the Authority to exercise the resolution
powers and apply the resolution tools is one hundred million pounds during any 5 year
period or such other amount or period as may be prescribed.
(9) Where any creditor has
a right arising as a result of the exercise by the Authority of a resolution power
or application of a resolution tool and the monies in the Fund have been
exhausted to the extent of the contributions received under paragraph (3)(a)
and (b), the right arising as a result of the exercise of the resolution power shall
be exercisable against the bank in resolution and the Authority shall not be
liable in respect of that right.
PART 4
RECOVERY AND RESOLUTION PLANNING
23 Recovery plan
(1) A Jersey bank shall, at
such times as the Commission may specify, draw up and submit to the Commission a
recovery plan setting out measures that would be taken by the Jersey bank for
the restoration of its financial position in the event of a significant
deterioration of such financial position.
(2) A recovery plan shall
be drawn up and maintained in accordance with such codes of practice in respect
of recovery planning as may be issued by the Commission in accordance with Article 19A
of the 1991 Law.
(3) The Commission shall
submit a copy of a recovery plan submitted to it by a Jersey bank under paragraph (1)
to the Authority and the Authority may –
(a) examine the recovery
plan with a view to identifying any actions in the recovery plan which may
adversely impact the resolvability of the Jersey bank; and
(b) make recommendations to
the Commission regarding the matters referred to in paragraph (a).
(4) A Jersey bank that
fails to comply with a requirement under paragraph (1) shall be guilty of
an offence and liable to a fine of level 3 on the standard scale.
24 Resolution plan
(1) The Authority shall, as
far as practicable and as it deems necessary, subject to Article 25 and in
consultation with the Commission and the home resolution authority and relevant
resolution authority in relation to a Jersey bank, draw up a resolution plan
for the Jersey bank which shall be proportionate to the systemic importance of
the Jersey bank or Jersey bank’s group.
(2) The Authority shall draw
up a resolution plan under paragraph (1) in pursuit of the resolution
objectives and in accordance with the general principles of resolution.
(3) Subject to Part 9,
the Authority shall provide relevant information regarding the resolution plan
for a Jersey bank to the resolution authorities in jurisdictions in which the Jersey
bank operates branches or subsidiaries and to the home regulatory supervisor and
relevant regulatory supervisor of the Jersey bank’s group.
(4) Where the Authority is
required under this Article to draw up a resolution plan which includes within its
scope branches or subsidiaries of a Jersey bank in jurisdictions other than
Jersey, the Authority shall, in drawing up the resolution plan, have regard to
the potential impact of the resolution measures in such other jurisdictions.
(5) The Authority shall, as
far as practicable, communicate to a home resolution authority or a relevant
resolution authority in relation to a Jersey bank any decision to deviate from
that home resolution authority’s, or relevant resolution authority’s,
resolution plan for the Jersey bank.
(6) The Authority may
require a Jersey bank (whether directly or through the Commission) to cooperate,
assist and provide the information specified in Part 1 of Schedule 2
for the purpose of drawing up, implementing and updating a resolution plan for
the Jersey bank.
(7) Details of the
resolution plan may be submitted by the Authority to the Jersey bank concerned.
(8) The Authority shall
review, and where appropriate update, a resolution plan for a Jersey bank at
least annually and after any material changes to the legal or organizational
structure of the Jersey bank or to its business or its financial position that
could have a material effect on the effectiveness of the resolution plan or which
otherwise necessitate a revision of the resolution plan.
(9) A resolution plan shall –
(a) outline the resolution
actions which the Authority plans to take if the Jersey bank concerned meets
the resolution conditions;
(b) set out the options for
applying a resolution tool and a resolution power to the Jersey bank concerned;
(c) take into consideration
relevant scenarios including that the event of a Jersey bank failure may be
unusual or may occur at a time of broader financial instability or system-wide events;
(d) include procedures for
informing and consulting employee representatives throughout the resolution
process, where appropriate; and
(e) contain the information
specified in Part 2 of Schedule 2.
(10) The Minister may by
Order make further provision for resolution planning by the Authority.
(11) A Jersey bank that
fails to comply with a requirement under paragraph (6) shall be guilty of
an offence and liable to a fine of level 3 on the standard scale.
25 Resolvability
(1) In drawing up a
resolution plan for a Jersey bank, the Authority shall, subject to paragraph (3),
carry out an assessment to determine the extent to which the Jersey bank is
resolvable and for that purpose shall consider the matters set out in
Part 3 of Schedule 2.
(2) The Authority shall
carry out a resolvability assessment in pursuit of the resolution objectives
and in accordance with the general principles of resolution.
(3) A resolvability assessment
shall be simplified (or may not be required) where the Jersey bank concerned is
subject to a resolvability assessment in its home jurisdiction or relevant jurisdiction.
(4) Where a Jersey bank is
a group entity, a simplified resolvability assessment under paragraph (3)
shall take into account the proposed group-wide resolution plan, if any, and
consider the resolvability of the elements of the Jersey bank’s group which are
relevant to the functions of the Authority.
(5) A resolvability assessment
shall identify material impediments to resolvability which, once identified, shall
be notified in writing to the Jersey bank and to the relevant resolution authorities
in other jurisdictions in which the bank operates.
(6) A Jersey bank shall,
within 4 months of the date of receipt of a notification under paragraph (5),
propose to the Authority possible measures to address or remove the substantive
impediments identified in the notification and the Authority shall, in consultation
with the Commission, determine whether the measures referred to effectively
address or remove the substantive impediments.
(7) If the Authority
assesses that the measures proposed under paragraph (6) do not effectively
reduce or remove the impediments, the Authority shall directly or indirectly
through the Commission –
(a) subject to paragraph (9), require the Jersey
bank to take alternative measures, including any
measure specified in paragraph (8) that
may achieve that objective, and notify the Jersey bank in writing of those
measures and propose a plan to comply with them; and
(b) explain to the Jersey bank
how the measures proposed by the bank would not have adequately removed the
impediments to resolvability and how the alternative measures are proportionate
in removing them.
(8) As an alternative
measure referred to in paragraph (7), the Authority may –
(a) if applicable, require
the Jersey bank to review any intragroup
financing agreements or review the absence of an intragroup financing agreement
and may require the Jersey bank to enter into agreements which provide for
financial support to be given by the Jersey bank’s parent in its home jurisdiction
or relevant jurisdiction to its subsidiary in Jersey;
(b) require the Jersey bank
to limit its maximum individual and
aggregate exposures;
(c) impose specific or regular additional
information requirements relevant for resolution purposes;
(d) require the Jersey bank to divest specific
assets;
(e) require the Jersey bank to limit or cease
specific existing or proposed activities;
(f) require the Jersey bank to restrict or
prevent the development of new or existing business lines or sale of new or
existing products;
(g) require changes to legal or operational
structures of the Jersey bank or entities in its control so as to reduce
complexity to ensure that critical functions may be legally and operationally
separated from other functions through the application of a resolution tool; or
(h) require the Jersey bank to issue eligible
liabilities or take other steps to meet any minimum requirement for own funds
and eligible liabilities set under Article 26.
(9) The Authority’s power
to require a Jersey bank to take measures under paragraph (7) or (8) shall
be limited to what is necessary in the public interest to simplify the
structure and operations of the Jersey bank solely to improve its resolvability.
(10) A Jersey bank shall be
deemed to be resolvable if it is feasible and credible for the Authority to
liquidate it under a bank winding up order or to resolve it by applying a stabilization
tool to, and exercising resolution powers in respect of, the Jersey bank while
avoiding to the maximum extent possible any significant adverse effect on the
financial system, including in circumstances of broader financial instability
or system-wide events, with a view to ensuring the continuity of critical
functions carried out by the Jersey bank.
(11) A Jersey bank that
fails to comply with paragraph (6) or a requirement under paragraph (7)
or (8) shall be guilty of an offence and liable to a fine of level 3 on
the standard scale.
26 Minimum requirement for
own funds and eligible liabilities
(1) The Authority shall, in
consultation with the Commission, set for each Jersey bank a minimum
requirement for own funds and eligible liabilities.
(2) A Jersey bank shall, at
all times meet the minimum requirement for own funds and eligible liabilities set
or adopted for that Jersey bank by the Authority under paragraph (1).
(3) A Jersey bank that
fails to comply with paragraph (2) shall be guilty of an offence and
liable to a fine.
27 Minimum authorized share
capital or other Common Equity Tier 1 instruments
(1) The Authority may require
a Jersey bank to maintain at all times a minimum amount of authorized share capital
or other Common Equity Tier 1 instruments so that, in the event of the Authority
exercising a write down or conversion power in respect of the bank, the Jersey bank
shall not be prevented from issuing sufficient new shares to ensure that the
conversion of liabilities into shares can be carried out effectively.
(2) An assessment by the Authority
to determine whether to impose a requirement under paragraph (1) shall be
carried out in conjunction with the development of a resolution plan under Article 24.
(3) A Jersey bank that
fails to comply with a requirement under paragraph (1) shall be guilty of
an offence and liable to a fine.
PART 5
RESOLUTION MATTERS
28 Requirement for notice
(1) The management of a bank shall notify the Commission
and the Authority if the management consider that the bank is failing or likely
to fail.
(2) The Commission shall notify the Authority of any notifications
received under paragraph (1) and of any early intervention measure that
the Commission requires a bank to take to prevent its failure or likely
failure.
(3) On receiving a notification under paragraph (2), the
Authority shall determine whether the resolution conditions are met in respect
of that bank and shall record its decision together with reasons for the
decision and the actions that the Authority intends to take as a result of it.
(4) If the Authority determines that the resolution conditions are
met in relation to a bank, the Authority shall give notice of that determination
and the Authority’s decision based on that determination, together with reasons
for the decision and the actions that the Authority intends to take as a result
of it, as soon as practicable, to the following –
(a) the Commission;
(b) the bank;
(c) the Jersey Bank Depositors Compensation Board;
(d) the Minister;
(e) the Minister for Treasury and Resources;
(f) the Viscount;
(g) the home resolution authorities and relevant resolution
authorities in relation to the bank’s group;
(h) the home regulatory supervisors and relevant regulatory
supervisors in relation to the bank’s group;
(i) the resolution authorities of any branches of the bank, if it
is a bank incorporated in Jersey;
(j) the regulatory supervisors of any branches of the bank, if it
is a bank incorporated in Jersey;
(k) the central bank in the home jurisdiction and relevant
jurisdiction of the bank’s group; and
(l) the depositors guarantee scheme in the home jurisdiction and relevant
jurisdiction of the bank’s group.
29 Resolution powers
(1) The Authority shall have all the powers necessary to apply the
resolution tools to a bank which meets the resolution conditions and, in
particular, shall have the following resolution powers which may be exercised,
individually or in any combination, for the purpose of enabling the Authority
to achieve the resolution objectives –
(a) the
power to require any person to provide any information required for the
Authority to decide upon and prepare a resolution action, including updates and
supplements of information provided in the resolution plans and including
requiring information to be provided through on-site inspections;
(b) the
power to take control over a bank in resolution and exercise all the rights and
powers conferred upon the shareholders, other owners and management of the bank
in resolution, including control over the bank in resolution so as to –
(i) operate
and conduct the activities and services of the bank in resolution with all the
powers of its shareholders and management, and
(ii) manage
and dispose of the assets and property of the bank in resolution,
whether directly by the Authority or indirectly by
a person or persons appointed by the Authority;
(c) the
power to take a resolution action without taking control over the bank in
resolution, if preferred, having regard to the resolution objectives and the
general principles of resolution and the specific circumstances of the bank in
resolution;
(d) the
power to transfer to another entity, with the consent of that entity shares
issued by a bank in resolution to another entity;
(e) the
power to transfer to another entity, with the consent of that entity, rights,
assets or liabilities of a bank in resolution;
(f) the
write down and conversion power under Article 74;
(g) the
power to alter the maturity of debt instruments and other eligible liabilities
issued by a bank in resolution or amend the amount of interest payable under
such debt instruments and other eligible liabilities, or amend the date on
which the interest becomes payable, including by suspending payment for a
temporary period, except for secured liabilities referred to in Article 65(7);
(h) the
power to close out and terminate financial contracts or derivative contracts
for the purposes of applying Article 69;
(i) the
power to remove or replace the management of a bank in resolution;
(j) the
power to require the Commission to assess the buyer of a qualifying holding in
a timely manner by way of derogation from any applicable time limits;
(k) subject
to Article 82, the power to provide for a transfer to take effect free
from any liability or encumbrance affecting the financial instruments, rights,
assets or liabilities transferred (and for these purposes any right of
compensation in accordance with the resolution safeguards shall not be
considered to be a liability or encumbrance);
(l) the
power to remove rights to acquire further shares;
(m) the
power to request that a relevant authority discontinue or suspend the admission
to trading on a regulated market of financial instruments relating to a bank in
resolution;
(n) the
power to provide for the recipient of shares, assets, rights or liabilities
under the sale of business tool or bridge bank tool to be treated as if it were
the bank in resolution for the purposes of any rights or obligations of, or
actions taken by, the bank in resolution, including, subject to the provisions
relating to the application of the sale of business tool and the bridge bank
tool, any rights or obligations relating to participation in market
infrastructure;
(o) the
power to require the bank in resolution or the recipient of transferred shares,
assets, rights or liabilities to provide the other with information and
assistance;
(p) the
power to cancel or modify the terms of a contract to which the bank in
resolution is a party or substitute a recipient as a party;
(q) the
power to provide for continuity arrangements necessary to ensure that the
resolution action is effective and that, where relevant, the business
transferred may be operated by the recipient, including, in particular –
(i) the
continuity of contracts entered into by the bank in resolution so that the
recipient of shares, assets, rights or liabilities assumes the rights and
liabilities of the bank in resolution relating to any financial instrument,
right, asset or liability that has been transferred and is substituted for the
bank in resolution, expressly or implicitly in all relevant contractual
documents, and
(ii) the
substitution of the recipient for the bank in resolution in any legal
proceedings relating to any financial instrument, right, asset or liability
that has been transferred;
(r) the power to require a bank in resolution or any of its group
entities to provide any services or facilities (that is,
operational services and facilities, not financial support) that are necessary
to enable the recipient of transferred shares, assets, rights or liabilities to
operate the transferred business effectively, including where the provider of
such services or facilities has entered into insolvency proceedings;
(s) the
power to suspend any payment or delivery obligations pursuant to any contract
to which a bank in resolution is party from the time notice is given, under Article 28(4),
of that suspension (as an action the Authority intends to take) until midnight
in Jersey at the end of the business day following the giving of the notice, except
that –
(i) where
a payment or delivery obligation would have been due during the suspension
period, the payment or delivery obligation shall be due immediately upon expiry
of the suspension period,
(ii) where
a payment or delivery obligation has been suspended the payment and delivery
obligations of the counterparty under the contract shall also be suspended for
the same period, and
(iii) any
suspension under this paragraph shall not apply to –
(A) eligible
deposits, or
(B) payment
and delivery obligations owed to payment and securities settlement systems,
central counterparties or central banks, and
when exercising this power, the Authority shall
have regard to the impact the exercise of the power might have on the orderly
functioning of financial markets;
(t) the
power to restrict secured creditors of a bank in resolution from enforcing
security interests in relation to any assets of that bank from the time notice
is given, under Article 28(4), of that restriction (as an action the
Authority intends to take) until midnight in Jersey at the end of the business
day following that notice, except that –
(i) the Authority shall not exercise this
power in relation to any security interest of payment and securities settlement
systems, central counterparties or central banks over assets pledged or
provided by way of margin or collateral by the bank in resolution,
(ii) where Article 85 applies, the
Authority shall ensure that any restrictions imposed under this power are
consistent for all group entities in the same group in relation to which a
resolution action is taken, and
(iii) when exercising this power, the Authority shall
have regard to the impact that the exercise of that power might have on the
orderly functioning of financial markets.
(2) The
services and facilities provided under paragraph (1)(r) shall be on the
following terms –
(a) where the services and facilities were provided under an
agreement to the bank in resolution immediately before the resolution action
was taken and for the duration of that agreement, on the same terms; or
(b) where there is no agreement for provision of the services and
facilities or where the agreement has expired, on reasonable terms.
(3) The exercise of the resolution powers set out in this Article
shall be without prejudice to –
(a) the right of an employee of the bank in resolution to terminate
a contract of employment; or
(b) subject to paragraph (1)(s) and (t) and Article 75(1),
any right of a party to a contract to exercise rights under the contract,
including the right to terminate, where entitled to do so in accordance with
the terms of the contract by virtue of an act or omission by the bank in
resolution prior to the relevant transfer, or by the recipient after the
relevant transfer.
(4) Except
as otherwise provided in this Law, the following requirements do not apply to
the application of a resolution tool –
(a) subject
to any requirements set out in this Law to seek the approval of another public
authority in Jersey, the requirement to obtain approval or consent from any
person either public or private, including the shareholders or creditors of the
bank in resolution; and
(b) prior
to the application of a resolution tool, procedural requirements to notify any
person including any requirement to publish any notice or prospectus or to file
or register any document with any other authority.
(5) The Authority
may exercise the resolution powers irrespective of any restriction on, or
requirement to obtain consent for, the transfer of the financial instruments,
rights, assets or liabilities in question that might otherwise apply.
(6) The Authority may exercise a resolution power under this Article
without –
(a) the approval of a third party in advance of a transfer;
(b) complying with any applicable equitable or mandatory bid rule;
(c) the consent of shareholders.
30 Priority of claims
(1) Except as provided by paragraph (2)
and (3), a bank’s hypothecary creditors shall be entitled to preference over
any unsecured debts of the bank in the order of the date of creation of their
respective judicial or conventional hypothecs upon the proceeds of sale of any
corporeal hereditament or incorporeal hereditament upon which their respective
judicial or conventional hypothecs are secured.
(2) If the bank liquidator
sells a corporeal hereditament that is subject to a judicial or conventional
hypothec, the proceeds of sale shall be applied first in payment of the costs,
disbursements and other charges necessarily incurred by the bank liquidator in
connection with the sale and the bank liquidator’s fees in connection with the
sale.
(3) If the proceeds of sale
of a corporeal hereditament or incorporeal hereditament upon which a judicial
or conventional hypothec is secured is insufficient to meet in full the claim
of a hypothecary creditor, the balance shall rank for payment on the same
footing as other debts mentioned in paragraph (5)(h).
(4) Where any property of
the bank being wound up is subject to a continuing security interest within paragraph (a)
of the definition of “security interest” in Article 1 or a security
interest within paragraph (b) of that definition, the proceeds of sale of
the property shall be applied in the manner provided by, respectively, Article 8(6)
of the Security Interests (Jersey) Law 1983[19] or Part 7 of the
Security Interests (Jersey) Law 2012[20].
(5) Notwithstanding Article 111,
the priority ranking for the payment of claims for unsecured debts of a bank under
this Law shall be in the following order –
(a) all the costs, charges and expenses
properly incurred or payable in a bank winding up, including the remuneration
of the bank liquidator;
(b) all costs, charges and expenses properly incurred or payable by
the Authority, Commission, Minister or Viscount as a result of the taking of
resolution action against a bank;
(c) where a right of –
(i) an eligible depositor
in respect of an eligible deposit held by a bank is vested in the Jersey Bank
Depositors Compensation Board,
(ii) a depositor in
respect of a deposit that –
(A) is held in a branch
outside Jersey of a bank incorporated in Jersey,
(B) would be an eligible
deposit if it was held in Jersey, and is vested in a bank depositors
compensation scheme outside Jersey,
the total amount owing to the Jersey Bank Depositors Compensation
Board or bank depositors compensation scheme , as the case may be, by virtue of
the vested right, but not exceeding £50,000 per depositor;
(d) the following which
shall rank equally between themselves –
(i) sums owing to an employee
of a bank at the date of commencement of the bank winding up order,
in respect of arrears of –
(A) wages or salary for
services rendered to the debtor, and
(B) holiday pay and
bonuses,
(ii) sums owing to a
commercial or trade creditor arising from the provision to a bank of goods and
services including information technology services, utilities and rental,
servicing and upkeep of premises,
(iii) sums
owing by a bank by way of –
(A) tax and social security
services in Jersey, or
(B) parochial rates to any
parish in Jersey for a period not exceeding 2 years;
(e) that part of a covered deposit that is not vested in the Jersey Bank Depositors
Compensation Board or is not vested in a
depositors compensation scheme outside Jersey or is re-vested back to the
depositor by the Jersey Bank Depositors Compensation
Board or by a depositors compensation
scheme outside Jersey;
(f) that part of –
(i) an eligible deposit
that exceeds the total amount given priority under paragraph (c) and (e), or
(ii) a deposit –
(A) that is held in a bank
account in a branch of a bank incorporated in Jersey that would otherwise be an
eligible deposit were it held in a bank account in Jersey, and
(B) that exceeds the total amount
given priority under paragraph (c) and (e);
(g) any other debt which is
excluded from being written down or converted under Article 65(7) or (8);
and
(h) all other unsecured debts
proved in bank winding up which shall rank equally between themselves.
(6) Notwithstanding
anything to the contrary in this Law, where a bank referred to in Article 3(1)(a)
is a branch of a foreign bank, the provisions of the law of the bank’s home
jurisdiction with respect to the ranking provided for the claims of ordinary
unsecured creditors may, where notice is given by the Authority of its consent,
apply to the resolution of that bank in lieu of this Article and any rule
referred to in Article 111 from the date specified in the notice given under
Article 28(4).
(7) In this Article –
(a) “corporeal hereditament” has the meaning assigned to “corps de
bien-fonds” in Article 1 of the Loi (1880) sur la propriété foncière[21];
(b) “incorporeal hereditament” has the meaning assigned to
“bien-fonds incorporeal” in Article 1 of the Loi (1996) sur l’hypothèque
des biens-fonds incorporels[22].
31 Early intervention
(1) Where the Authority or Commission is
satisfied that a Jersey bank infringes or is likely, in the near future, to
infringe –
(a) any minimum requirement
for own funds and eligible liabilities set under Article 26 or a requirement for a minimum amount
of authorized share capital or other Common Equity
Tier 1 instruments to
be maintained under Article 27; or
(b) the requirement that
it is a fit and proper person to be registered to
undertake deposit-taking business in accordance with Article 10(3)(a) of
the 1991 Law,
the Authority or Commission may take any of the early intervention measures
set out in paragraph (4).
(2) An infringement
referred to in paragraph (1) may occur due, among other things, to a
rapidly deteriorating financial condition and may include one or more of the following –
(a) a deteriorating liquidity situation;
(b) an increasing level of leverage;
(c) an increasing level of nonperforming loans;
or
(d) a concentration of exposures.
(3) The Authority shall
notify the Commission, or the Commission shall notify the Authority, as the
case may be, forthwith as soon as it believes that a condition in paragraph (1)(a) or (b)
exists.
(4) Early intervention
measures include, where applicable, the power of the Authority or Commission to –
(a) require the management
of the Jersey bank to –
(i) implement one or more
of the arrangements or measures set out in its recovery plan, or
(ii) update its recovery
plan (where the circumstances that led to the early intervention are different
from the assumptions in the recovery plan) and implement one or more of the
arrangements or measures set out in the updated recovery plan,
within a specified timeframe and in order to ensure that the
conditions for early intervention no longer apply;
(b) require the management
of the Jersey bank to examine the situation, identify measures to overcome any
problems identified and draw up an action programme to overcome those problems
and a timeframe for its implementation;
(c) require the management
of the Jersey bank to convene, or if the management fails to comply with that
requirement, convene directly a meeting of shareholders of the Jersey bank, and
in both cases set the agenda and require certain decisions to be considered for
adoption by the shareholders;
(d) require one or more
members of the management of the Jersey bank to be removed or replaced if those
persons are deemed by the Authority or Commission to be unfit to perform their
duties;
(e) require the management
of the Jersey bank to draw up a plan for negotiation on restructuring of debt
with some or all of its creditors according to the recovery plan, where
applicable;
(f) require changes to the
Jersey bank’s strategy;
(g) require changes to the
legal or operational structures of the Jersey bank;
(h) require, including
through on-site inspections, if necessary, the provision to the Authority or Commission
of all information necessary to update the resolution plan and prepare for the
possible resolution of the Jersey bank and for a pre-resolution valuation to be
conducted in accordance with Article 44; or
(i) require the bank to
contact potential purchasers in order to prepare for the resolution of the Jersey
bank, subject to the procedural requirements relating to the sale of business
tool.
(5) For each of the early
intervention measures set out in paragraph (4), the Authority or
Commission, as the case may be, shall set out an appropriate deadline for
completion to enable it to evaluate the effectiveness of the measure.
32 Temporary administrator
(1) Subject to paragraph (2),
where the Authority or Commission deems the replacement of the management of a Jersey
bank, as an early intervention measure, to be insufficient to remedy the
situation, the Authority may, in consultation with the Commission, or the
Commission may, in consultation with the Authority, as the case may be, appoint
one or more persons as temporary administrators to the Jersey bank.
(2) Before appointing a person as a temporary administrator, the
appointing authority must be satisfied that the person has the qualifications,
ability and knowledge required to carry out the functions of a temporary
administrator and does not have a conflict of interest in relation to Jersey bank.
(3) The appointing authority may appoint the temporary administrator
under paragraph (1) either to –
(a) replace the management of the Jersey bank temporarily; or
(b) work temporarily with the management of the Jersey bank.
(4) If the appointing
authority appoints a temporary administrator under paragraph (3), the
appointing authority shall, at the time of such an appointment, specify in the
instrument of appointment –
(a) the role of the
temporary administrator in accordance with paragraph (3)(a) or (b);
(b) subject to paragraph (6),
the functions and powers of the temporary administrator which may include –
(i) ascertaining the
financial position of the Jersey bank,
(ii) some or all of the
powers of the management of the Jersey bank under the Jersey bank’s articles of
association, including the power to exercise some or all of the administrative
functions of the management of the Jersey bank, and
(iii) managing the business
or part of the business of the Jersey bank with a view to preserving or
restoring the financial position of the Jersey bank and taking measures to
restore the sound and prudent management of the business of the Jersey bank;
(c) any limits on the role,
functions and powers of the temporary administrator under paragraph (a) or (b);
(d) any requirements for
the management of the Jersey bank to consult or to obtain the consent of the
temporary administrator prior to taking decisions or actions specified in the
instrument of appointment;
(e) subject to paragraph (7),
any requirement that certain acts of the temporary administrator are to be
subject to the prior consent of the appointing authority.
(5) The appointing
authority shall, in such manner as the appointing authority considers
appropriate, publish the appointment of any temporary administrator except
where the temporary administrator does not have the power to represent the Jersey
bank.
(6) The powers of a
temporary administrator specified in an instrument of appointment under paragraph (4) –
(a) shall be based on what
is proportionate in the circumstances;
(b) need not comply with the
Companies (Jersey) Law 1991[23].
(7) The temporary
administrator may convene a general meeting of the shareholders of the Jersey bank
and set the agenda for such a meeting only with the prior consent of the
appointing authority.
(8) The appointing
authority may require that a temporary administrator draw up reports on the
financial position of the Jersey bank and on the acts performed in the course
of its appointment, at intervals set by the appointing authority and at the end
of the temporary administrator’s appointment.
(9) The
term of appointment of a temporary administrator shall not exceed one year,
subject to renewal of the appointment where the conditions under paragraph (1)
for appointing the temporary administrator continue to be met and the
appointing authority determines that the conditions are appropriate to maintain
a temporary administrator.
(10) Subject to paragraphs (1) to (9),
the appointment of a temporary administrator shall not prejudice the rights of
the shareholders of the Jersey bank under the Companies (Jersey) Law 1991[24].
(11) A temporary administrator
shall not be liable in damages for anything done or omitted in the discharge or
purported discharge of his or her functions as temporary administrator under
this Law unless it is shown that the act or omission was in bad faith.
(12) Nothing in this Law
shall cause a temporary administrator to be treated as or deemed to be a shadow
director or de facto director of a Jersey bank.
(13) The appointing
authority shall, after consultation with the Authority or Commission, as the
case may be, have the exclusive power to appoint, remove, or vary the terms of
engagement of, a temporary administrator, and may do so at any time.
(14) In this Article
“appointing authority” means –
(a) if the Authority
appoints a temporary administrator under paragraph (1), the Authority; or
(b) if the Commission
appoints a temporary administrator under paragraph (1), the Commission.
33 Resolution objectives
(1) The Authority shall, in
exercising the resolution powers and in applying, or considering the application
of, resolution tools in respect of a bank, have regard to the resolution
objectives specified in paragraph (2) and shall choose resolution tools
and resolution powers that best achieve the resolution objectives that are
relevant in the circumstances.
(2) The resolution
objectives are as follows –
(a) to ensure the continuity of banking
services in Jersey and the provision of critical functions in Jersey;
(b) to protect and enhance the stability of the
financial system in Jersey, including by preventing contagion (including
contagion to market infrastructures such as investment exchanges, clearing
houses and central counterparties) and maintaining market discipline;
(c) to protect and enhance public confidence in
the stability of the financial system in Jersey;
(d) to protect public funds, including by
minimizing reliance on extraordinary public financial support;
(e) to protect eligible depositors to the
extent that they have covered deposits; and
(f) to protect client assets.
(3) The resolution
objectives are not listed in any order of significance in paragraph (2)
and are to be balanced as appropriate in each case.
(4) A person exercising a
function under this Law shall have regard to the resolution objectives if they
are relevant to that function.
(5) In
pursuing the resolution objectives, the Authority shall seek to minimize the
cost of resolution and avoid destruction of value unless reasonable to achieve
the resolution objectives.
34 Resolution conditions
(1) Resolution action in
respect of a bank may be taken only if the Authority is satisfied that the
following conditions are met –
(a) the bank is failing or
is likely to fail;
(b) having regard to timing
and other relevant circumstances, it is not reasonably likely that any action (except
the exercise of the resolution power) will be taken by or in respect of the
bank that will prevent the failure or likely failure of the bank within a
reasonable timeframe; and
(c) the taking of a resolution
action is in the public interest of Jersey.
(2) The taking of a resolution
action shall be in the public interest of Jersey for the purposes of paragraph (1)(c)
if –
(a) it is necessary for the
achievement of, and is proportionate to, one or more of the resolution
objectives; and
(b) winding up the bank other
than under relevant insolvency proceedings would not meet the resolution objectives
referred to in sub-paragraph (a) to the same extent.
(3) The prior adoption of
an early intervention measure with regard to a bank shall not be taken as
indicative that the resolution conditions are met.
(4) Despite paragraph (1),
where a bank is a group entity, the Authority may take a resolution action in
respect of the bank if the Authority is satisfied that –
(a) although the bank does
not in isolation meet the resolution conditions, the resolution conditions are met
in relation to another group entity in the bank’s group (whether or not the
other group entities in the group also meet the resolution conditions); and
(b) the failure or likely
failure of the group entity that meets the resolution conditions would have
adverse consequences for the bank which would cause the bank to meet the
resolution conditions in the future.
35 General principles of
resolution
The Authority shall, in applying a resolution tool to a bank or
exercising a resolution power, take appropriate measures to ensure that
resolution action is taken in accordance with the following general principles
of resolution –
(a) the shareholders of a
bank in resolution shall bear first losses;
(b) the creditors of a bank
in resolution shall bear losses after the shareholders in accordance with the
ordinary priority of their claims in relevant insolvency proceedings, except as
otherwise expressly provided for in this Law or the Regulations;
(c) the management of the bank in resolution shall be replaced,
except in those cases where the retention of the management of the bank, in
whole or in part, is considered appropriate in the circumstances or necessary
for the achievement of the resolution objectives;
(d) the management of the
bank in resolution shall provide all necessary assistance for the achievement
of the resolution objectives;
(e) a person shall be made
liable, in accordance with the Law in force in Jersey, for their responsibility
for the failure of the bank;
(f) except where otherwise
provided under this Law or the Regulations, creditors of the same class shall be
treated in an equitable manner;
(g) no
creditor shall incur greater losses than would have been incurred had the bank
been wound up under relevant insolvency proceedings unless it is in the public
interest;
(h) covered deposits shall be
fully protected;
(i) resolution action shall
be taken in accordance with the resolution safeguards; and
(j) the costs of the resolution of a bank shall be minimized.
36 Conditions for application of a resolution
tool
(1) When applying a
resolution tool to a bank, the Authority shall take into account the measures
provided in the resolution plan prepared in respect of the bank unless the
Authority assesses that, in the circumstances, the resolution objectives may be
achieved more effectively by taking actions that are not provided in the
resolution plan.
(2) If the Authority
decides to apply a resolution tool to a bank and the application of the
resolution tool would result in loss being borne by the creditors or their
claims being converted, the Authority shall exercise the write down or
conversion power to convert capital instruments immediately before, or
contemporaneously to, applying the resolution tool.
(3) The Authority may apply
the resolution tools individually or in any combination, except that the asset
separation tool may only be applied in combination with another resolution
tool.
(4) Where only the sale of
business tool and the bridge bank tool are used in combination to transfer only
part of the assets, rights or liabilities of the bank in resolution, the
residual bank from which those assets, rights or liabilities have been
transferred shall be wound up under Part 7.
(5) The winding up of a
residual bank under paragraph (4) shall be done having regard, if relevant,
to the need for that entity to provide services in order to enable the
recipient of the transferred assets, rights or liabilities to carry out the
activities or services acquired by virtue of that transfer, and any other
reason that the continuation of the residual bank is necessary to achieve the
resolution objectives or comply with the general principles of resolution.
37 Manner of recovery by the
Authority of expenses
The Authority shall recover from a bank in resolution any reasonable
expenses properly incurred that have been paid out of the Fund in connection
with the application of a resolution tool or exercise of a resolution power, in
one or more of the following ways –
(a) as a deduction from any
consideration paid by a recipient to the bank in resolution, or as the case may
be, to the owners of the shares;
(b) from the bank in
resolution as a preferred creditor; or
(c) from any proceeds
generated as a result of the termination of the operation of the bridge bank or
the asset management vehicle, as a preferred creditor.
38 Alternative financing
(1) In the case of an
extraordinary situation of a systemic crisis, the Authority may seek funding
from alternative financing sources through the application of a government financial
assistance tool, if the contribution to loss absorption and recapitalization
equal to an amount not less than 8% of the total liabilities including own
funds of the bank in resolution, measured by the pre-resolution valuation, has
been made by shareholders, holders of relevant capital instruments and other
eligible liabilities through write down, conversion or otherwise.
(2) The amount referred to
in paragraph (1) may be amended by an Order made by the Minister.
(3) In this Article “systemic crisis” means a disruption in the financial
system with the potential to have serious negative consequences for Jersey’s internal
market and the real economy of Jersey.
39 Assessment by the
Commission
(1) Where there is a
requirement to notify the Commission of a change in the level of ownership of a
person by another person by virtue of the application of a stabilization tool
or the taking of other resolution action that would result in the acquisition
of a qualifying holding or holding which crosses an applicable threshold, the Commission
shall carry out a relevant assessment related to that notification in a timely
manner that does not delay the application of the stabilization tool or prevent
the taking of the other resolution action.
(2) Where the Commission has
not completed an assessment required under paragraph (1) or given any
relevant approval of a transfer or conversion by the date that the
stabilization is made effective by the Authority, the following shall apply –
(a) such a transfer or conversion shall have immediate legal effect;
(b) during the assessment
period and during any divestment period, an acquirer’s voting rights attached
to such shares shall be suspended and vested solely in the Authority, which
shall have no obligation to exercise any such voting rights and which shall
have no liability for exercising or refraining from exercising any such voting
rights;
(c) during the assessment
period and during any divestment period, the penalties and other measures for failing
to comply with the requirements for acquisitions or disposals of qualifying or
significant shareholdings under Article 14 or 25 of the
1991 Law or under any other enactment shall not apply to such a transfer
or conversion;
(d) promptly upon
completion of the assessment by the Commission, the Commission shall notify the
Authority and the acquirer in writing of whether the Commission approves or, on
the grounds referred to in Article 10 of the 1991 Law or any other
enactment, opposes such a transfer of shares to the acquirer or the acquisition
of shares by the acquirer as a result of conversion;
(e) if the Commission approves
a transfer of shares to the acquirer (or the acquisition of shares by the
acquirer as a result of conversion), then the voting rights attached to such
shares shall be deemed to be fully vested in the acquirer immediately upon
receipt by the Authority and the acquirer of such approval notice from the Commission;
and
(f) if the Commission opposes
such a transfer of shares to the acquirer (or the acquisition of shares by the
acquirer as a result of conversion), then –
(i) the voting rights
attached to such shares as provided by sub-paragraph (b) shall remain in
full force and effect,
(ii) the Authority may require
the acquirer to divest such shares within a divestment period determined by the
Authority having taken into account prevailing market conditions, and
(iii) if the acquirer does
not complete such divestment within the divestment period determined by the
Authority, then the Commission, with the consent of the Authority, may impose
on the acquirer such measures for failing to comply with the requirements for
acquisitions or disposals of qualifying or significant shareholdings under Article 14
or 25 of the 1991 Law or any other enactment.
40 Authority to have regard
to Competition (Jersey) Law 2005
The Authority shall, in exercising its powers and carrying out its
functions under this Law, have regard to, and shall comply with, the
Competition (Jersey) Law 2005[25] except where a derogation
from the Competition (Jersey) Law 2005 is required to achieve the
resolution objectives (including where the resolution objectives would not be
met if additional delay were caused by the requirement to have regard to the Competition
(Jersey) Law 2005).
41 Authority to consult with
employee representatives
The Authority shall, where appropriate in exercising the resolution
powers and applying a resolution tool in respect of a bank, inform and consult
with employee representatives of the bank’s employees.
42 Special management
(1) The Authority may
appoint a special manager to replace the management of a bank in resolution.
(2) A special manager
appointed under paragraph (1) must have the qualifications, ability and
knowledge necessary to carry out his or her functions under this Law.
(3) The term of appointment
of a special manager shall be for a period not exceeding one year, except that
the Authority may, in exceptional circumstances, renew the appointment for a
further period not exceeding one year if the Authority determines that the
conditions for appointment of a special manager continue to be met.
(4) The Authority shall, in
such manner as it considers appropriate, publish notice of the appointment of a
special manager.
(5) A special manager shall
have all the powers of the shareholders and management of the bank in
resolution, except that –
(a) the exercise of that
power shall be under the control of the Authority; and
(b) the Authority may set
limits to the action of a special manager or require that certain acts of the
special manager be subject to the Authority’s prior consent.
(6) A special manager shall
have a duty to take all measures necessary to promote the resolution objectives
and to implement resolution actions in accordance with decisions of the
Authority.
(7) The duty specified in paragraph (6)
may, where necessary, override any other duty placed upon a director under the
Companies (Jersey) Law 1991 and the bank’s constitutional documents in so
far as they are inconsistent.
(8) The
measures referred to in paragraph (6) may
include –
(a) an increase of the
bank’s capital;
(b) the reorganization of
the ownership structure of the bank;
(c) the takeover of the
bank by another bank that is financially and organizationally sound by applying
a resolution tool.
(9) In appointing a special
manager to a bank that is a group entity, the Authority shall consider whether
it is appropriate to appoint the same special manager that is appointed to
another entity in the bank’s group.
43 Authority not to be
treated as a director of a bank
Nothing in this Law shall
cause the Authority to be treated as or deemed to be a director (shadow or de facto) of a bank.
44 Pre-resolution valuation
(1) Prior to taking
resolution action or exercising a write down or conversion power in respect of
a bank, the Authority shall cause a pre-resolution valuation of the assets and
liabilities of the bank to be carried out in accordance with any standards set
or adopted under Article 48 or rely on a pre-resolution valuation carried
out by the home resolution authority or the relevant resolution authority in
relation to the bank.
(2) The Authority shall, in
accordance with an Order made under Article 49, appoint an independent
valuer to carry out a pre-resolution valuation.
(3) The objective of a pre-resolution
valuation shall be to assess the value of the assets and liabilities of a bank that
meets the resolution conditions.
(4) The purpose of a pre-resolution
valuation shall be –
(a) to inform the decision of whether the
resolution conditions or the conditions for the write down or conversion power
are met;
(b) if the resolution conditions are met, to
inform the decision on which resolution tool should be applied;
(c) if the write down or conversion
power is to be applied, to inform the decision on the extent of the
cancellation or dilution of shares and the extent of the write down or
conversion;
(d) if the bail-in tool is
to be applied, to inform the decision on the extent of the write down or
conversion of eligible liabilities;
(e) if the bridge bank tool
or asset separation tool is to be applied, to inform the decision on the assets, rights, liabilities or shares
to be transferred and the decision on the value of any consideration to be paid
to the bank in resolution or, as the case may be, to the owners of the shares;
(f) if the sale of business tool is to be
applied, to inform the decision on the assets, rights, liabilities or shares to
be transferred and to inform the Authority’s understanding of what constitutes
commercial terms for the purpose of the application of the tool; and
(g) in all cases, to ensure that any losses on
the assets of the bank are fully recognized at the moment a resolution tool is
applied or the write down or conversion power is exercised.
(5) In carrying out a pre-resolution
valuation, the person carrying out the pre-resolution valuation shall –
(a) make prudent assumptions, including as to
the rates of defaults and severity of losses;
(b) disregard any potential future provision of
extraordinary public financial support;
(c) take into account the fact that, if any
resolution tool is applied –
(i) the Authority and the
Fund may recover any reasonable expenses properly incurred from the bank in
resolution in accordance with the general principles of resolution, and
(ii) the Authority may
charge interest or fees in respect of any loans provided to the bank in
resolution.
(6) A pre-resolution valuation
shall be supplemented by the following information as appearing in the
accounting books and records of the bank –
(a) a balance sheet of the
bank as at the date of the valuation;
(b) a report on the
financial position of the bank;
(c) an analysis and
estimate of the accounting value of the assets and liabilities of the bank;
(d) an analysis and
estimate of the market value of the assets and liabilities of the bank where
required to inform a decision relating to the bridge bank tool, asset separation
tool or sale of business tool;
(e) a list of outstanding
liabilities of the bank (including any off balance sheet liabilities), with the
creditors subdivided into classes according to the priority their claims would
have under relevant insolvency proceedings;
(f) an estimate of the
amount each class of creditors and shareholders might be expected to receive if
the bank were to be wound up under relevant insolvency proceedings; and
(g) an estimate of the
amount that would be payable under the 2009 Regulations if the bank were
to be wound up under relevant insolvency proceedings.
45 Provisional valuation
(1) Where the Authority
considers that the urgency of the case makes it appropriate for resolution
action to be taken or for a write down or conversion power to be exercised in
respect of a bank before a pre-resolution valuation can be carried out by an
independent valuer appointed under Article 44(2), the Authority may cause
a provisional valuation of the assets and liabilities of the bank to be carried
out in accordance with any standards set or adopted under Article 48.
(2) Where a provisional
valuation is carried out –
(a) Article 44(3) (4),
(5) and (6) shall apply to the provisional valuation as if it were a
pre-resolution valuation and so far as it is practicable in the circumstances;
(b) the provisional valuation
must make provision in respect of reasonably foreseeable losses by the bank;
and
(c) the provisional
valuation shall be a valid basis on which a decision to exercise a resolution
power may be taken.
46 Definitive valuation
(1) Where the Authority has
caused a provisional valuation to be carried out under Article 45, the
Authority shall, in accordance with an Order made under Article 49, appoint
an independent valuer to carry out a definitive valuation of the assets and
liabilities of the bank in accordance with any standards adopted under Article 48
as soon as practicable.
(2) The purposes of the definitive
valuation are –
(a) to ensure the full extent of any losses on the assets of the bank is
recognized in the accounting records of the bank; and
(b) to inform a decision by the Authority as
to whether –
(i) additional
consideration should be paid by a bridge bank or asset management vehicle for
any property, rights, liabilities or shares transferred under a sale of
business tool, bridge bank tool or asset separation tool, or
(ii) to increase or reinstate
any liability which has been reduced or cancelled by a resolution instrument.
(3) Where a definitive valuation
is carried out, Article 44(3), (4), (5) and (6) shall apply to the
definitive valuation as if it were a pre-resolution valuation and so far as it
is practicable in the circumstances.
(4) A definitive valuation
may be carried out –
(a) separately from the
difference of treatment valuation;
(b) simultaneously with a
difference of treatment valuation; or
(c) by the same independent
valuer who carries out the difference of treatment valuation,
but the definitive valuation and the difference of treatment
valuation shall be distinct from each other.
(5) A person who
participates in any manner in a provisional valuation of a bank shall not,
regardless of the capacity in which the person participated, by reason only of
that participation be deemed to be ineligible for appointment as an independent
valuer for the purpose of carrying out a definitive valuation of that bank.
47 Consequences of a higher
valuation being produced by definitive valuation
(1) Where a definitive
valuation produces a higher valuation of the net asset value of a bank in
resolution than the provisional valuation, the
Authority may –
(a) instruct a purchaser,
bridge bank or asset management vehicle to pay additional consideration for any
assets, rights, liabilities or shares transferred under the sale of business
tool, bridge bank tool or asset separation tool; or
(b) modify any liability of
the bank in resolution which has been reduced, deferred or cancelled pursuant to
the write down or conversion power or a resolution instrument so as to increase
or reinstate that liability.
(2) A power under paragraph (1) –
(a) shall not be exercised
so as to increase the value of the liability of the bank in resolution beyond
the value it would have had if the resolution instrument which reduced,
cancelled or deferred it had not been made; and
(b) shall be exercised by
the issue by the Authority of a mandatory reduction instrument in accordance
with Article 74(1) or a supplemental resolution instrument (whether or not
that instrument contains any other provisions authorized by this paragraph or paragraph (1)).
48 Standards
(1) The Authority may set or
adopt standards for the purpose of a valuation.
(2) A valuation shall be
carried out in accordance with the standards set or adopted by the Authority
under paragraph (1).
49 Eligibility criteria for
independent valuer
The Minister may by Order specify the eligibility criteria for
appointment of a person as an independent valuer for the purposes of Article 44,
46 or 77.
50 Ancillary powers of an
independent valuer
(1) Subject to the resolution
safeguards, an independent valuer may do anything necessary or desirable for
the purposes of, or in connection with, the performance of the independent
valuer’s functions under this Law.
(2) The Authority may
confer on an independent valuer such ancillary powers as the Authority thinks
necessary for the purposes of, or in connection with, the exercise of the
independent valuer’s functions, powers or duties under this Law.
PART 6
STABILIZATION TOOLS, WRITE DOWN AND CONVERSION
POWER AND RESOLUTION SAFEGUARDS
Chapter 1 – Sale of business
tool
51 Application
of sale of business tool
(1) The Authority may apply
the sale of business tool to a bank that meets the resolution conditions by effecting
a sale of all or part of the business of the bank in resolution to one or more
purchasers that are not bridge banks by
making –
(a) one or more share
transfer instruments effecting the transfer of all or some of the shares of the
bank;
(b) one or more property
transfer instruments effecting the transfer of all or any assets, rights or
liabilities of the bank.
(2) Subject to the
resolution safeguards, the Authority may apply the sale of business tool to a bank
without –
(a) the consent of the
shareholders of the bank or any third party other than the purchaser; and
(b) complying with any
procedural requirements under the Companies (Jersey) Law 1991[26], Security Interests
(Jersey) Law 2012[27] or Security Interests
(Jersey) Law 1983[28] or the constitutional
documents of the bank other than those procedural requirements specified in
this Law, the Regulations or an Order made under this Law.
(3) The Authority shall
ensure that a transfer made by applying the sale of business tool under this Article
is made on commercial terms having regard to the circumstances.
(4) The Authority shall
take reasonable measures to obtain, on the basis of a pre-resolution valuation,
commercial terms for the transfer made under the sale of business tool under
this Article, including making arrangements for the marketing of the bank in
resolution or part of the bank’s business in an open, transparent,
non-discriminatory process, while aiming as far as possible to maximize the
sale price.
(5) Subject to Article 37,
the net proceeds of consideration paid by the purchaser on the transfer made under
the sale of business tool under this Article shall be applied for the benefit
of –
(a) the owners of the
shares, where the sale of business tool has been effected by transferring
shares issued by the bank in resolution from the holders of those shares or
instruments to the purchaser; or
(b) the bank in resolution,
where the sale of business tool has been effected by transferring some or all
of the assets or liabilities of the bank in resolution to the purchaser,
including where the bank in resolution is then subject to the bank winding up
under Part 7.
(6) When applying the sale
of business tool to a bank, the Authority may exercise the transfer power more
than once to make supplemental transfers of shares issued by the bank or, as
the case may be, assets, rights or liabilities of the bank.
(7) A transfer made under
the sale of business tool shall be subject to the resolution safeguards.
(8) The Authority shall immediately
notify the Commission or other competent authority of its non-compliance with any
procedural requirements under paragraph (2)(b).
52 Power to transfer assets,
rights, liabilities or shares transferred to the purchaser back to bank in
resolution or to original owners
Subject to the resolution safeguards, following the application of
the sale of business tool, the Authority may, with the consent of the purchaser,
transfer –
(a) the assets, rights, or
liabilities transferred to the purchaser back to the bank in resolution; or
(b) the shares transferred
to the purchaser back to their original owners,
and the bank in resolution or the original owners shall be obliged
to take back any such assets, rights or liabilities or shares.
53 Bank in resolution
entitled to exercise rights after transfer under sale of business
tool
Where a transfer under the sale of business tool is effected, the
bank in resolution shall be entitled to exercise any rights following the
transfer that it was entitled to exercise prior to the transfer.
54 Rights of purchaser under the sale of business
tool
(1) A purchaser shall
acquire the deposit-taking business and any other relevant business of a bank in
resolution (as a continuation of the deposit-taking business being conducted
prior to the transfer to the purchaser) under the sale of business tool and may
continue to operate the deposit-taking business of the bank in resolution for a
period not exceeding 6 months within which period an application for registration
under the 1991 Law, registration under the Financial Services (Jersey) Law 1998[29] or authorization that is
required under any other enactment shall be made.
(2) Where a transfer under
the sale of business tool has been effected the purchaser shall, following the
transfer, be entitled to continue to exercise any rights that the bank in
resolution was entitled to exercise prior to the transfer, including membership
rights, access to payment, clearing and settlement systems, securities
exchanges and the bank depositors compensation scheme, if the purchaser meets
the criteria for such membership or participation in such systems.
(3) Where a purchaser does
not meet the membership or participation criteria for a relevant payment,
clearing or settlement system, securities exchange or the bank depositors compensation
scheme, the rights transferred under the sale of business tool shall be exercised
for such period as may be specified by the Authority, not exceeding 24 months,
subject to renewal on application by the purchaser to the Authority.
(4) Without prejudice to
the resolution safeguards, shareholders and creditors of a bank in resolution
and other third parties whose assets, rights or liabilities are not transferred
under the sale of business tool shall not have any rights over or in relation
to the assets, rights or liabilities transferred.
(5) In paragraph (1)
“authorization” includes a licence, registration and approval.
55 Marketing of assets,
rights, liabilities or shares
(1) Subject to the
exceptions in paragraph (4) and Article 56, when applying the sale of
business tool to a bank –
(a) the Authority shall market
or make arrangements for the marketing of the assets, rights, liabilities or
shares of the bank that the Authority intends to transfer; and
(b) pools of assets, rights,
liabilities or shares of the bank may be marketed separately under sub-paragraph (a).
(2) Marketing under paragraph (1)
shall be carried out in accordance with the following principles –
(a) it shall be as transparent as possible and
shall not materially misrepresent the assets, rights, liabilities or shares of
the bank in resolution, having regard to the circumstances and in particular
the need to maintain financial stability;
(b) it shall not unduly favour or discriminate
between potential purchasers;
(c) it shall be free from conflicts of
interest;
(d) it shall not confer any unfair advantage on
a potential purchaser;
(e) it shall take account of the need to effect
a rapid resolution action; and
(f) it shall aim at maximising, as far as
possible, the sale price for the shares, assets, rights or liabilities
involved.
(3) Subject to paragraph (2)(b),
the principles in paragraph (2) shall not prevent the Authority from
soliciting particular potential purchasers.
(4) The Authority may apply
the sale of business tool to a bank without complying with the requirement to market
the assets, rights, liabilities or shares of the bank under paragraph (1)(a)
if the Authority determines that compliance with the requirement to market the
bank would be likely to undermine one or more of the resolution objectives and,
in particular, the Authority considers that –
(a) there is a material
threat to the financial stability of Jersey arising from or aggravated by the
failure or likely failure of the bank in resolution; and
(b) compliance with
requirement would be likely to undermine the effectiveness of the sale of
business tool in addressing the threat referred to in sub-paragraph (a) or
achieving the resolution objectives.
56 Delay of disclosure of
information to the public on application of the sale of business tool
On application of the sale of business tool to a bank –
(a) disclosure of
information to the public which would as a matter of law be required in
relation to the sale of the bank may be delayed for the time necessary to plan
and structure the resolution of the bank; and
(b) disclosure to the
public of the marketing of a bank which would as a matter of law be required may
be delayed where all of the following conditions are met –
(i) immediate disclosure
is likely to prejudice the legitimate interests of the bank in resolution,
(ii) delay of disclosure
is not likely to mislead the public,
(iii) delay of disclosure
is in the public interest, and
(iv) the disclosure of the
marketing information entails a risk of undermining the financial stability of
the bank in resolution and the financial system in Jersey.
57 Residual bank to be wound
up
If the sale of business tool has been used to transfer systemically
important services or viable business of a bank to a private sector purchaser,
the residual bank may be wound up under relevant insolvency proceedings within
an appropriate timeframe, having regard to any need for the residual bank to
provide services or support to enable the purchaser to carry on the activities
or services acquired by the virtue of that transfer.
Chapter 2 – Bridge bank tool
58 Application of bridge
bank tool
(1) For the purposes of
this Article, the Authority shall cause to be registered a company (a “bridge
bank”) that –
(a) is wholly or partially
owned by the Authority;
(b) is controlled by the
Authority; and
(c) is created for the
purpose of receiving a transfer of the shares or business of the bank in
resolution by virtue of the utilization of such transfer power under the bridge
bank tool with a view to maintaining access to critical functions and in due
course selling the bank or its business.
(2) The Authority may apply
the bridge bank tool to a bank that meets the resolution conditions by making –
(a) one or more share
transfer instruments effecting the transfer of all or some of the shares of the
bank to a bridge bank; or
(b) one or more property
transfer instruments effecting the transfer of all or any assets, rights or liabilities
of the bank to a bridge bank.
(3) Subject to the
resolution safeguards, the Authority may apply the bridge bank tool to a bank that
meets the resolution conditions without –
(a) the consent of the
shareholders of the bank in resolution or any third party other than the bridge
bank; and
(b) complying with any procedural
requirements under the Companies (Jersey) Law 1991[30], Security Interests
(Jersey) Law 2012[31] or Security Interests
(Jersey) Law 1983[32] or the constitutional
documents of the bank other than those procedural requirements specified in
this Law or the Regulations or an Order made under this Law.
(4) The application of the
bail-in tool for the purpose of converting to equity or reducing the principal
amount of claims or debt instruments that are transferred to a bridge bank with
a view to providing capital for that bridge bank shall not interfere with the
ability of the Authority to control the bridge bank.
(5) When applying the
bridge bank tool, the Authority shall ensure that the total value of
liabilities transferred to the bridge bank does not exceed the total value of
the rights and assets transferred from the bank in resolution or provided by
other sources.
(6) Subject to Article 37,
any consideration paid by the bridge bank shall be applied for the benefit of –
(a) the owners of the
shares, where the transfer of the bridge bank has been effected by transferring
shares issued by the bank in resolution from the holders of those shares to the
bridge bank; or
(b) the bank in resolution,
where the transfer to the bridge bank has been effected by transferring some or
all of the assets or liabilities of the bank in resolution to the bridge bank.
(7) When applying the
bridge bank tool to a bank in resolution, the Authority may exercise its power
to transfer under Article 59(2) more than once to make supplemental
transfers of shares issued by the bank in resolution, or as the case may be,
assets, rights or liabilities of the bank in resolution.
59 Power to transfer assets,
rights, liabilities or shares transferred to the bridge bank back to bank or to
original owners
(1) Subject to paragraph (2),
following the application of the bridge bank tool, the Authority may –
(a) transfer assets, rights
or liabilities transferred to the bridge bank back to the bank in resolution,
or shares transferred to the bridge bank back to their original owners, and the
bank in resolution or the original owners shall take back any such assets,
rights or liabilities or shares; or
(b) transfer assets, rights, liabilities or
shares from the bridge bank to a third party.
(2) Subject to complying with any other
conditions in the instrument of transfer, the Authority may transfer assets,
rights, liabilities or shares back from the bridge bank under paragraph (1)
in any of the following circumstances –
(a) where the possibility that the specific
shares, assets, rights or liabilities will be transferred back is stated
expressly in the instrument of transfer by which the transfer was made to the
bridge bank; or
(b) where the specific shares, assets, rights
or liabilities do not in fact fall within the classes of, or meet the
conditions for transfer of, shares, assets, rights or liabilities specified in
the instrument of transfer by which the transfer to the bridge bank was made.
(3) A transfer following
the application of the bridge bank tool between –
(a) the bank in resolution or the original
owners of shares; and
(b) the bridge bank,
shall be without prejudice to the resolution safeguards.
60 Bridge bank to acquire
the deposit-taking business
A bridge bank shall acquire the deposit-taking business of a bank in
resolution as a continuation of the deposit-taking business being conducted
prior to the transfer to the bridge bank under the bridge bank tool.
61 Rights of bridge bank
(1) Where a transfer under
the bridge bank tool is effected by way of a transfer of shares in the bank in
resolution, the bank in resolution shall, following the transfer, be entitled
to exercise any rights that it was entitled to exercise prior to the transfer.
(2) Where a transfer under
the bridge bank tool has been effected by way of a transfer of assets rights
and liabilities, the bridge bank shall, following the transfer, be entitled to exercise
any rights that the bank in resolution was entitled to exercise prior to the
transfer, including membership rights, access to payment, clearing and
settlement systems, securities exchanges and the bank depositors compensation scheme,
if the bridge bank meets the criteria for such membership or participation in
such systems.
(3) Where a bridge bank does
not meet the membership or participation criteria for a relevant payment,
clearing or settlement system, securities exchange or the bank depositors compensation
scheme, the rights transferred under the bridge bank tool shall be exercised
for such period as may be specified by the Authority, not exceeding 24 months,
subject to renewal on application by the bridge bank to the Authority.
(4) Without prejudice to
the resolution safeguards, shareholders and creditors of the bank in resolution
and other third parties whose assets, rights or liabilities are not transferred
to the bridge bank under the bridge bank tool shall not have any rights over or
in relation to the assets, rights or liabilities transferred to the bridge bank
or its management.
(5) A bridge bank or its management shall not be liable in damages
to its shareholders or creditors for anything done or omitted in the discharge
or purported discharge of any functions under this Law unless it is shown that
the act or omission was in bad faith.
62 Operation of bridge bank
(1) The Authority shall
ensure that the operation of a bridge bank complies with the following
requirements –
(a) the contents of a bridge bank’s
constitutional documents are approved by the Authority;
(b) subject to the bridge bank’s ownership
structure, the Authority appoints or approves the bridge bank’s management body;
(c) the Authority approves the remuneration of
the members of the bridge bank’s management body and determines their
appropriate responsibilities;
(d) the Authority approves the strategy and
risk profile of the bridge bank; and
(e) the
bridge bank is –
(i) registered under the 1991 Law to undertake deposit-taking
business,
(ii) registered under the Financial Services (Jersey) Law 1998[33], or
(iii) authorized under any other relevant
enactment to undertake such other relevant financial services business as is
necessary,
in order to carry out the activities or services that it acquires
by virtue of a transfer made under the bridge bank tool in accordance with the
resolution powers and the
bridge bank complies with the requirements under those enactments.
(2) Despite
paragraph (1)(e), where necessary to meet the resolution objectives, the bridge
bank may be established, and authorized by the Commission, to carry out the
activities or services that it acquires by virtue of a transfer made under the
bridge bank tool for a period not exceeding 6 months without complying
with the requirements set out in paragraph (1)(e).
(3) The Authority may submit a request to the Commission to permit the
bridge bank to carry on the activities referred to in paragraph (1)(e) beyond
the period referred to in paragraph (2) without complying with the
requirements set out in paragraph (1)(e).
(4) If the Commission decides to grant a permission under paragraph (3),
it shall indicate the additional period for which the requirements set out in in
paragraph (1)(e) are waived.
(5) Notwithstanding any
restrictions imposed under the Competition (Jersey) Law 2005[34], the management of the
bridge bank shall operate the bridge bank with a view to maintaining access to
critical functions and selling the bridge bank, or its assets, rights or
liabilities, to one or more private sector purchasers when conditions are
appropriate and within the time limit set out in paragraph (8) or any extension
granted under paragraph (9), as the case may be.
(6) The Authority shall determine that the bridge bank is no longer
a bridge bank if any of the following outcomes occur, whichever occurs first –
(a) the bridge bank merges with another entity;
(b) the bridge bank ceases to meet the
requirements of a bridge bank set out at paragraph (1);
(c) the sale of all or substantially all of the
bridge bank’s assets, rights and liabilities to a third party;
(d) the bridge bank’s assets are completely
wound down and its liabilities are completely discharged;
(e) the expiry of the two-year time limit set out in
paragraph (8) or any extension granted under paragraph (9), as the
case may be.
(7) Where the Authority
seeks to sell the bridge bank or its assets, rights or liabilities, the Authority
shall market the bridge bank or assets, rights or liabilities openly and transparently,
and the sale shall not materially misrepresent assets, rights or liabilities or
unduly favour or discriminate between potential purchasers and must be made on
commercial terms having regard to the circumstances.
(8) Where none of the outcomes referred to in paragraph (6)(a),
(b), (c) or (d) apply, the Authority shall terminate the operation of the
bridge bank as soon as possible and in any event 2 years after the date on
which the last transfer from a bank in resolution was made to the bridge bank under
the bridge bank tool.
(9) The Authority may extend
the time limit for termination of the bridge bank under paragraph (8) for
one or more additional one year periods where such an extension –
(a) supports an outcome referred to in paragraph (6)(a),
(b), (c) or (d); or
(b) is necessary to ensure the continuity of
essential banking or financial services.
(10) The Authority must give
reasons for any decision to extend the period for termination of the bridge
bank, and a detailed assessment of the situation including the market
conditions and outlook, that justifies the extension.
(11) Where the operations of
a bridge bank have been terminated as a result of the sale of all or
substantially all of its assets, rights or liabilities, or as a result of the
expiry of the time limit set out in paragraph (8) or any extension granted
under paragraph (9), the bridge bank shall be wound up in accordance with Part 7.
(12) Subject to Article 37,
any proceeds generated as a result of the termination of the operation of the
bridge bank shall be applied for the benefit of the shareholders of the bridge
bank.
(13) In this Article “authorized”
includes, licensed, registered and approved.
Chapter 3 – Asset separation
tool
63 Application of asset
separation tool
(1) The Authority may apply
the asset separation tool to a bank in resolution by making a property transfer
instrument effecting the transfer of the assets, rights or liabilities of –
(a) the bank in resolution;
or
(b) a bridge bank to which
assets, rights or liabilities have been transferred under the bridge bank tool,
to an asset management vehicle.
(2) For the purposes of the
transfer referred to in paragraph (1), the Authority may make one or more
instruments of transfer.
(3) Where assets, rights or
liabilities of a bank in resolution are transferred to an asset management
vehicle by application of the asset separation tool, the Authority may make one
or more supplementary instruments of transfer transferring any of those assets,
rights or liabilities to one or more other asset management vehicles.
(4) Subject to the
resolution safeguards, the Authority may apply the asset separation tool to a
bank in resolution without –
(a) the consent of the
shareholders of the bank in resolution or any third party; and
(b) complying with any
procedural requirements under the Companies (Jersey) Law 1991[35], Security Interests
(Jersey) Law 2012[36] or Security Interests
(Jersey) Law 1983[37] or the constitutional
documents of the bank other than those procedural requirements specified in
this Law or the Regulations or an Order made under this Law.
(5) An asset management
vehicle shall manage the assets transferred to it under paragraph (1) with
a view to maximizing their value through eventual sale or orderly liquidation.
(6) The Authority may only
apply the asset separation tool to a bank in resolution if –
(a) the situation of the
particular market for the assets of the bank in resolution is of such a nature
that the liquidation of those assets under relevant insolvency proceedings could
have an adverse effect on one or more financial markets;
(b) such a transfer is
necessary to ensure the proper functioning of the bank in resolution or bridge
bank; or
(c) such a transfer is
necessary to maximize liquidation proceeds.
(7) Subject to Article 37,
any consideration paid by the asset management vehicle in the form of debt
issued by the asset management vehicle in respect of the assets, rights or
liabilities acquired directly from the bank in resolution shall be applied for
the benefit of the bank in resolution.
(8) Where a bridge bank
tool has been applied to a bank in resolution, an asset management vehicle may,
subsequent to the application of the bridge bank tool, acquire assets, rights or
liabilities from the bridge bank.
(9) The Authority may transfer
assets, rights or liabilities from the bank in resolution to one or more asset
management vehicles more than once, and transfer assets, rights or liabilities
back from one or more asset management vehicles to the bank in resolution if
any of the circumstances in paragraph (11) apply.
(10) Where the Authority
transfers assets, rights or liabilities back to the bank in resolution under paragraph (9),
the bank in resolution shall take back any such assets, rights or liabilities.
(11) The
Authority may, subject to complying with any other conditions in the instrument
of transfer, transfer assets, rights or liabilities back from the asset
management vehicle to the bank in resolution in any of the following
circumstances –
(a) where the possibility
that the specific assets, rights or liabilities will be transferred back is
stated expressly in the instrument of transfer by which the transfer was made;
or
(b) where the specific
assets, rights or liabilities do not in fact fall within the classes of, or
meet the conditions for transfer of assets, rights or liabilities specified in
the instrument of transfer by which the transfer was made.
(12) A transfer between the
bank in resolution and the asset management vehicle shall be without prejudice
to the resolution safeguard for partial transfers under Article 80.
(13) Without prejudice to
the resolution safeguards, shareholders or creditors of the bank in resolution
and other third parties whose assets, rights or liabilities are not transferred
to the asset management vehicle shall not have any rights over or in relation
to the assets, rights or liabilities transferred to the asset management
vehicle or its management.
(14) An
asset management vehicle or its management shall not be liable in damages to
the bank in resolution or its shareholders or creditors for anything done or
omitted in the discharge or purported discharge of any functions under this Law
unless it is shown that the act or omission was in bad faith.
64 Operation of asset
management vehicle
The Authority shall ensure that the operation of an asset management
vehicle complies with the following requirements –
(a) the contents of an
asset management vehicle’s constitutional documents are approved by the
Authority;
(b) subject to the asset
management vehicle’s ownership structure, the Authority appoints or approves
the asset management vehicle’s management body;
(c) the Authority approves
the remuneration of the members of the management body of the asset management
vehicle and determines their appropriate responsibilities; and
(d) the Authority approves
the strategy and risk profile of the asset management vehicle.
Chapter 4 – Bail-in tool
65 Application
of bail-in tool
(1) The Authority may apply
the bail-in tool to meet the resolution objectives, in accordance with the
general principles of resolution, for any of the following purposes –
(a) to recapitalize a bank that
meets the resolution conditions to the extent sufficient to restore the bank’s ability
to –
(i) satisfy
the Commission that it is a fit and proper person to be
registered to undertake deposit-taking business in accordance with Article 10(3)(a)
of the 1991 Law, and
(ii) continue to carry out
the activities for which the bank is registered under the 1991 Law, registered
under the Financial Services (Jersey) Law 1998[38] or authorized under any
other enactment to undertake other financial services business, and to sustain
sufficient market confidence in the bank; or
(b) in accordance with Article 74,
to exercise the Authority’s write down or conversion power to convert to equity
or reduce the principal amount of claims or debt instruments that are
transferred –
(i) to
a bridge bank with a view to providing capital for the bridge bank, or
(ii) under
the sale of business tool or the asset separation tool.
(2) The Authority may, in
order to apply the bail-in tool to a bank under paragraph (1), make one or
more resolution instruments.
(3) The Authority may apply
the bail-in tool for the purposes referred to in paragraph (1)(a) only if
there is a reasonable prospect that the application of the bail-in tool
together with any other relevant measures will, in addition to achieving the
relevant resolution objectives, restore the bank to financial soundness and
long-term viability.
(4) Where there is no such
reasonable prospect as referred to in to paragraph (3), the Authority may apply
the bail-in tool for the purposes referred to in paragraph (1)(b) together
with sale of business tool, bridge bank tool or asset separation tool.
(5) The Authority may apply
the bail-in tool to a bank under paragraph (1), while respecting, in each
case, the legal form of the bank or while changing the legal form of the bank if
the Authority is of the view that changing the legal form is necessary to
achieve the resolution objectives.
(6) The bail-in tool may be
applied in respect of any liability of a bank that is not excluded from the
scope of the bail-in tool under paragraph (7) or (8).
(7) The Authority shall not
exercise the write down or conversion power in relation to the following
liabilities whether they are governed by the law of Jersey or by the law of
another jurisdiction –
(a) covered deposits;
(b) secured liabilities
including covered bonds and liabilities in the form of financial instruments
used for hedging purposes which form an integral part of the cover pool and
which according to Jersey law are secured in a way similar to covered bonds;
(c) any liabilities that
arise by virtue of the holding by the bank of client assets including client
assets held on behalf of a recognized fund (within the meaning of Article 1
of the Collective Investment Funds (Jersey) Law 1988[39]) or an AIF (within the
meaning of the Alternative Investment Funds (Jersey) Regulations 2012[40]), if such client assets are
protected under Jersey law relating to insolvency.
(d) any liabilities that
arise by virtue of a fiduciary relationship between the bank (as fiduciary) and
another person (as beneficiary) if such beneficiary’s interests are protected
under Jersey law relating to insolvency;
(e) liabilities to a credit
institution, excluding entities that are part of the same group, with an
original maturity of less than 7 days;
(f) liabilities with a
remaining maturity of less than 7 days, owed to payment and securities
settlement systems or their participants and arising from the participation in any
such system; or
(g) liabilities to any one
of the following –
(i) an
employee, in relation to accrued salary, or other fixed remuneration, except
for the variable component of remuneration that is not regulated by a
collective bargaining agreement,
(ii) a
commercial or trade creditor arising from the provision to the bank in
resolution of goods and services that are critical to the daily functioning of
its operations, including information technology services, utilities and
rental, servicing and upkeep of premises,
(iii) tax
and social security services in Jersey, or
(iv) Jersey Bank Depositors Compensation Board.
(8) In exceptional
circumstances, where the bail-in tool is applied, the Authority may exclude or
partially exclude certain liabilities from the application of the write down or
conversion powers where –
(a) it
is not possible to bail-in that liability within a reasonable time despite the
good faith efforts of the Authority;
(b) the
exclusion is strictly necessary and is proportionate to achieve the continuity
of critical functions and core business lines in a manner that maintains the
ability of the bank in resolution to continue key operations, services and
transactions;
(c) the
exclusion is strictly necessary and proportionate to avoid giving rise to
widespread contagion, in particular as regards eligible deposits which would
severely disrupt the functioning of financial markets, including financial
market infrastructures, in a manner that could cause broader financial
instability; or
(d) the
application of the bail-in tool to those liabilities would cause a destruction of
value such that the losses borne by other creditors would be higher than if
those liabilities were excluded from bail-in.
(9) Where
the Authority decides to exclude or partially exclude an eligible liability or
class of eligible liabilities under paragraph (8), the level of write down
or conversion applied to other eligible liabilities may be increased to take
account of such exclusions, if the level of write down or conversion applied to
other eligible liabilities complies with the general principle of resolution
specified in Article 35(g).
(10) Where
the Authority decides to exclude or partially exclude an eligible liability or
class of eligible liabilities under paragraph (8) and the losses that
would have been borne by those liabilities have not been passed on fully to
other creditors, a contribution may, subject to paragraph (11), be made
out of the Fund to the bank in resolution to do any of the following –
(a) cover
any losses which have not been absorbed by eligible liabilities and restore the
net asset value of the bank in resolution to zero in accordance with Article 66(1)(a);
and
(b) purchase
shares in the bank in resolution to recapitalize the bank in accordance with Article 66(1)(b).
(11) A
contribution may be made from the Fund under paragraph (10) only where –
(a) a
contribution to loss absorption and recapitalization equal to an amount not
less than 8% of the total liabilities including own funds of the bank in
resolution, measured by the pre-resolution valuation, has been made by the
shareholders, the holders of relevant capital instruments and other eligible
liabilities through write down, conversion or otherwise; and
(b) the
contribution from the Fund does not exceed 5% of the total liabilities
including own funds of the bank in resolution, measured by the pre-resolution
valuation or provisional valuation, as the case may be.
(12) In
extraordinary circumstances, where the bail-in tool is applied the Authority
may seek further funding from alternative financing sources.
(13) In
exercising its discretion under paragraph (8), the Authority shall give
due consideration to –
(a) the
principle that losses shall be borne first by shareholders and next, in general,
by creditors of the bank in resolution in order of preference;
(b) the
level of loss absorbing capacity that would remain in the bank in resolution if
the liability or class of liabilities were excluded; and
(c) the
need to maintain adequate resources for resolution financing.
(14) In
this Article –
“authorized” includes, licensed, registered and approved;
“credit institution” means a bank or an entity that is carrying on deposit-taking
business (whether or not incorporated, or carrying on business, in Jersey).
66 Assessment of amount of bail-in
(1) In
applying the bail-in tool under Article 65, the Authority shall assess for
the purposes of paragraph (2), on the basis of the pre-resolution valuation,
the aggregate of –
(a) where
relevant, the amount by which eligible liabilities must be written down to
ensure that the net asset value of the bank in resolution is equal to zero; and
(b) where
relevant, the amount by which eligible liabilities must be converted into
shares or other types of capital instruments to restore the Common Equity Tier 1
capital ratio of either –
(i) the
bank in resolution, or
(ii) the
bridge bank.
(2) The
assessment referred to in paragraph (1) shall establish the amount by which
eligible liabilities need to be written down and converted in order –
(a) to
restore the Common Equity Tier 1 capital ratio of the bank in resolution
or, where applicable, establish the ratio of the bridge bank, taking into
account any contribution of capital by the Fund under Article 22(5)(d)(iv);
(b) to
sustain sufficient market confidence in the bank in resolution or the bridge
bank; and
(c) to
enable the bank in resolution or the bridge bank to continue to satisfy the
Commission, for at least one year, that it is a fit and
proper person to be registered to carry on deposit-taking business in
accordance with Article 10(3)(a) of the 1991 Law.
(3) Where
the Authority intends to apply the asset separation tool together with the
bail-in tool to a bank in resolution, the amount by which eligible liabilities
need to be reduced shall take into account a prudent estimate of the capital
needs of the asset management vehicle as appropriate.
(4) Where
capital has been written down in accordance with the write down or conversion
power, and the bail-in tool has been applied, and the level of write down based
on the pre-resolution valuation is found to exceed requirements when assessed
against the definitive valuation, a write up mechanism may be applied to
reimburse creditors and then shareholders to the extent necessary.
67 Treatment of shareholders in bail-in or write down or conversion
(1) When applying the
bail-in tool or the write down or conversion power, the Authority shall take,
in respect of shareholders of the bank in resolution, one or both of the
following actions –
(a) cancel
existing shares or transfer them to creditors that have been bailed-in;
(b) provided
that, in accordance with the pre-resolution valuation (or provisional
valuation, if applicable), the bank in resolution has a positive net value, dilute
existing shareholders as a result of the conversion into shares using the write
down or conversion power of –
(i) relevant
capital instruments, or
(ii) eligible
liabilities,
issued by the bank in resolution.
(2) The
Authority shall take the actions referred to in paragraph (1) in respect
of shareholders where the shares were issued or conferred in the following
circumstances –
(a) pursuant
to the conversion of debt instruments to shares in accordance with the
contractual terms of the original debt on the occurrence of an event that
preceded or occurred at the same time as the assessment by the Authority that
the bank met the resolution conditions; or
(b) pursuant
to the conversion of relevant capital instruments to Common Equity Tier 1
instruments under the write down or conversion power.
(3) In
considering which action to take in accordance with paragraph (1), the
Authority shall have regard to –
(a) the
pre-resolution valuation (or provisional valuation, if applicable);
(b) the
amount by which the Authority has assessed that Common Equity Tier 1 items
must be reduced and relevant capital instruments must be written down or
converted pursuant to the write down or conversion power; and
(c) the aggregate amount
assessed by the Authority under Article 66(1).
68 Sequence
of write down or conversion
(1) Subject
to any exclusions set out in Article 65(7) and (8), the Authority, in
exercising the write down or conversion power when applying the bail-in tool, shall
meet the following requirements –
(a) the
Authority shall reduce the Common Equity Tier 1 items in accordance with Article 74(6);
(b) if
the total reduction under sub-paragraph (a) is less than the sum of the
amounts referred to in Article 67(3)(b) and (c), the Authority shall reduce
the principal amount of Additional Tier 1 instruments to the extent
required and to the extent of their capacity;
(c) if
the total reduction pursuant to sub-paragraphs (a) and (b) is less
than the sum of the amounts referred to in Article 67(3)(b) and (c),
the Authority shall reduce the principal amount of Tier 2 instruments to
the extent required and to the extent of their capacity;
(d) if
the total reduction of shares and relevant capital instruments pursuant to sub-paragraphs (a),
(b) and (c) is less than the sum of the amounts referred to in Article 67(3)(b)
and (c), the Authority shall reduce to the extent required the principal
amount of subordinated debt that is not Additional Tier 1 or Tier 2
capital in accordance with the priority of claims that would apply if the bank were
to be wound up under relevant insolvency proceedings,
in conjunction with the write down pursuant to sub-paragraphs (a), (b) and (c)
to produce the sum of the amounts referred to in Article 67(3)(b)
and (c); or
(e) if
the total reduction of shares, relevant capital instruments and eligible
liabilities pursuant to sub-paragraphs (a) to (d) is less than the sum of
the amounts referred in Article 67(3)(b) and (c), the Authority shall
reduce to the extent required the principal amount of, or outstanding amount
payable in respect of, the rest of eligible liabilities in accordance with the priority
of claims that would apply if the bank were to be wound up under relevant insolvency proceedings,
including the ranking of deposits provided for in Article 30, pursuant to
the bail-in tool, in conjunction with the write down pursuant to sub-paragraphs (a)
to (d) to produce the sum of the amounts referred to in Article 67(3)(b)
and (c).
(2) When applying the write down or conversion power,
the Authority shall allocate the losses represented by the sum of the amounts
referred to in Article 67(3)(b) and (c) equally between shares and
eligible liabilities of the same rank by reducing the principal amount of, or
outstanding amount payable in respect of, those shares and eligible liabilities
to the same extent pro rata to their value, except where a different allocation
of losses amongst liabilities of the same rank is allowed in the circumstances
specified in Article 65(8).
(3) Paragraph (2)
shall not prevent liabilities which have been excluded from bail-in in
accordance with Article 65(7) and (8) from receiving more favourable
treatment than eligible liabilities which are of the same rank in a bank winding up.
(4) Before
applying the write down or conversion power, the Authority shall convert or
reduce the principal amount on instruments referred to in paragraph (1)(b),
(c) and (d) when those instruments contain the following terms and have not
been fully converted –
(a) terms
that provide for the principal amount of the instrument to be reduced on the
occurrence of any event that refers to the financial situation, solvency or
levels of own funds of the bank; or
(b) terms
that provide for the conversion of the instrument to shares on the occurrence
of any such event.
(5) Where
the principal amount of an instrument has been reduced, but not reduced to
zero, in accordance with terms referred to in paragraph (4)(a), before the
application of the bail-in tool under paragraph (1), the Authority shall apply
the write down or conversion power to the residual amount of that principal amount
in accordance with paragraph (1).
(6) In
deciding on whether liabilities are to be written down or converted into
equity, the Authority shall not convert one class of liabilities while a class
of liabilities that is subordinated to that class remains substantially unconverted
into equity or not written down, unless otherwise permitted under Article 65(7)
and (8).
69 Derivatives
(1) The
Authority shall exercise the write down or conversion power in relation to a
liability arising from a derivative contract only upon or after closing-out that
derivate contract.
(2) The
Authority may terminate and close out any derivative contract upon a bank’s entry
into resolution for the purpose of the entry into resolution.
(3) Where
a derivative contract has been excluded from the application of the bail-in
tool pursuant to Article 65(8), the Authority shall not be under any obligation
to terminate or close out the derivative contract.
(4) Where
a derivative contract is subject to a netting arrangement, the value of the
liability for the purposes of the pre-resolution valuation (or provisional
valuation, if applicable) shall be determined on a net basis in accordance with
the terms of the netting arrangement.
(5) The
Authority shall determine the value of liabilities arising from derivative
contracts in accordance with –
(a) appropriate
methodologies for determining the value of classes of derivative contracts,
including contracts that are subject to netting arrangements;
(b) principles
for establishing the relevant point in time at which the value of a derivative
position shall be established; and
(c) appropriate
methodologies for comparing the destruction of value that would arise from the
close out and bail-in of derivative contracts with the amount of losses that
would be borne by derivative contracts in bail-in.
(6) When
the write down or conversion power is used, the Authority may apply a different
conversion rate to different classes of capital instruments and liabilities in
accordance with one or both of the following principles –
(a) the conversion rate shall represent appropriate compensation to the
affected creditor for any loss incurred by virtue of the exercise of the write
down or conversion power;
(b) when different
conversion rates are applied, the conversion rate applicable to liabilities
that rank higher under this Law shall be higher than the conversion rate
applicable to subordinated liabilities.
70 Business reorganization plan
(1) Where the bail-in tool
has been used, the Authority shall ensure that a business reorganization plan
is drawn up and implemented in accordance with this Article.
(2) The
implementation of a business reorganization plan may include the appointment by
the Authority of persons (pursuant to its resolution power to take control over
a bank in resolution under Article 29(1)(b)) for the purpose of drawing up
and implementing the business reorganization plan.
(3) Within one month after
the application of the bail-in tool to a bank, the management of the bank shall
draw up and submit to the Authority a business reorganization plan setting out
measures to restore the long-term viability of the bank within a reasonable
period, on the basis of realistic assumptions as to the economic and financial
market conditions under which the bank will operate.
(4) Where a group
resolution has been carried out, including where a foreign resolution
instrument has been made, a group level business reorganization plan may be
accepted by the Authority for the purpose of this Article.
(5) In exceptional
circumstances, and if it is necessary for meeting the resolution objectives,
the Authority may extend the period in paragraph (3).
(6) A
business reorganization plan shall contain at least the following –
(a) a detailed diagnosis of
the factors and problems that caused the bank to fail or to be likely to fail
and the circumstances that led to its difficulties;
(b) a description of the
measures aiming to restore the long-term viability of the bank that are to be
adopted; and
(c) a timescale for
the implementation of those measures.
(7) Measures
aiming to restore the long-term viability of the bank under paragraph (6) may
include –
(a) the
reorganization of the activities of the bank;
(b) changes
to the operational systems and infrastructure within the bank;
(c) the
withdrawal from loss-making activities;
(d) the
restructuring of existing activities that can be made competitive; and
(e) the
sale of assets or business lines.
(8) Within
one month of the submission of the business reorganization plan, the Authority together
with the Commission, shall assess the likelihood that the business
reorganization plan, if implemented, will restore the long-term viability of
the bank.
(9) If
on assessment under paragraph (8), the Authority and the Commission are satisfied
that the business reorganization plan will restore the long-term viability of
the bank, the Authority shall approve the plan.
(10) If
on assessment the Authority or Commission are not satisfied that the business
reorganization plan is likely to restore the long-term viability of the bank,
the Authority, in agreement with the Commission shall notify the management of
its concerns and require the amendment of the business reorganization plan in a
way that will address those concerns.
(11) Within
2 weeks of receiving a notification by the Authority under paragraph (10),
the management of the bank shall submit an amended business reorganization plan
to the Authority.
(12) The
Authority, together with the Commission, shall assess the amended business
reorganization plan submitted under paragraph (11) and the Authority, in
agreement with the Commission shall notify the management of the bank, within
one week of the assessment of the amended business reorganization plan, as to whether
the Authority is satisfied that the amended business reorganization plan
addresses the concerns notified or whether further amendment is required.
(13) The
management of the bank shall implement the business reorganization plan and shall
submit a report to the Authority at least every 6 months on the progress
of the implementation of the business reorganization plan until such time as
the Authority may determine.
(14) A
business reorganization plan may be further amended following its initial
implementation if the Authority is of the view that changes to the plan are
required to achieve the long-term viability of the bank.
71 Ancillary provisions relating to bail-in
(1) Where
the Authority exercises the write down or conversion power, such write down or
conversion shall take effect and be immediately binding on the bank in
resolution and affected creditors and shareholders of the bank in resolution.
(2) The
Authority may complete or cause the completion of all administrative and
procedural tasks necessary to give effect to the write down or conversion power
including –
(a) the
amendment of all relevant registers;
(b) the
delisting or removal from trading of shares or debt instruments;
(c) the
listing or admission to trading of new shares; and
(d) the
relisting or readmission of any debt instruments which have been written down,
without the requirement for a prospectus if a prospectus would in normal
circumstances be required.
(3) Where
the Authority reduces to zero the principal amount of, or outstanding amount
payable in respect of, a liability by means of the write down or conversion power,
that liability and any obligations or claims arising in relation to it that are
not accrued at the time when the power is exercised shall be discharged for all
purposes, and shall not be provable in any subsequent proceedings in relation
to the bank in resolution or any successor entity in any subsequent winding up.
(4) Where
the Authority reduces in part, but not in full, the principal amount of, or
outstanding amount payable in respect of, a liability by means of the write
down or conversion power –
(a) such
liability shall be discharged to the extent of the amount reduced; and
(b) the
relevant instrument or agreement that created the original liability shall
continue to apply in relation to the residual principal amount or outstanding
amount payable in respect of the liability, subject to any modification of the
amount of interest payable to reflect the reduction of the principal amount,
and any further modification of the terms that the Authority might make by
means of the write down or conversion power.
(5) Procedural
impediments to the conversion of liabilities to shares by virtue of their instruments
of incorporation or the law of Jersey (other than this Law), including
pre-emption rights for shareholders or requirements for the consent of
shareholders to an increase in capital, shall not prevent the application of a stabilization
tool, in particular the write down or conversion power.
72 Contractual recognition
of bail-in
(1) Subject
to paragraph (3), a bank shall include in its contractual documents a
contractual term by which the creditor or party to an agreement creating an
eligible liability recognizes that that liability may be subject to the write
down or conversion power and agrees to be bound by any reduction of the
principal or outstanding amount due, conversion or cancellation that is
effected by the exercise of that power by the Authority, if such liability is –
(a) not excluded under Article 65(7);
(b) not a covered deposit;
(c) governed by the law of a
jurisdiction other than Jersey; and
(d) issued or entered into
after the date on which this Law comes into force or where entered into or
issued prior to the date on which this Law comes into force, the bank has the
ability to amend the contract after the date of entry into force of this Law to
include such a contractual term.
(2) Subject
to paragraph (3), the Authority may specify contractual terms which the
bank shall include in its contractual documents in relation to other
liabilities.
(3) Paragraph (1)(a)
shall not apply where the Authority determines that the liability referred to
in paragraph (1) can be subject to write down or conversion powers by the resolution
authority of another jurisdiction or pursuant to a binding agreement concluded
with that other jurisdiction.
(4) A
failure to include the terms as are referred to under paragraph (1) shall
not prevent the Authority from exercising the write down or conversion power in
relation to that liability.
(5) A bank that fails to comply with paragraph (1) shall be guilty
of an offence and liable to a fine of level 3 on the standard scale.
(6) The Authority may waive
the requirements set out in paragraph (1) in respect of a bank.
Chapter 5 – Government
financial assistance tool
73 Application of government
financial assistance tool
(1) Subject to paragraph (2),
the Authority, acting in agreement with and under the direction of the Minister,
may apply the government financial assistance tool to a bank by providing
extraordinary public financial support to the bank in accordance with paragraph (3)
for the purpose of resolving the bank, including by intervening directly to
avoid its winding up, with a view to meeting the resolution objectives.
(2) The Authority may only
apply the government financial assistance tool in respect of a bank –
(a) as a last resort after
having assessed and exploited the other stabilization tools to the maximum
extent practicable whilst maintaining financial stability; and
(b) if the resolution
conditions are met, and the Minister and the Authority both determine that
either or both of the following conditions are met –
(i) the application of the
other resolution tools would not suffice to avoid significant adverse effect on
the financial system in Jersey, or
(ii) the application of
the other resolution tools would not suffice to protect the public interest
where extraordinary liquidity assistance has already been given to the bank.
(3) The Authority may apply
the government assistance financial tool to a bank by –
(a) while complying with the Companies (Jersey) Law 1991[41], participating in the recapitalization of a bank in resolution by
providing capital in exchange for the Common Equity Tier 1 instruments,
Additional Tier 1 instruments or Tier 2 instruments if the Authority
ensures –
(i) to the extent that its
shareholding of the bank permits, that the bank is managed on a commercial and
professional basis, and
(ii) that its holding in
the bank is transferred to the private sector as soon as commercial and
financial circumstances allow; or
(b) taking the bank in
resolution into temporary public ownership, if the bank is managed on a
commercial and professional basis and that it is transferred to the private
sector as soon as commercial and financial circumstances allow.
(4) For the purposes of
taking a bank into temporary public ownership under paragraph (3), the Authority
may make one or more share transfer orders in which the transferee is –
(a) nominee of the
Authority; or
(b) a company wholly owned
by the Authority.
Chapter 6 – Write down and
conversion power
74 Write down or
conversion power
(1) Subject to paragraph (2), the
Authority shall have the power to issue a mandatory reduction instrument to
write down or convert relevant capital instruments or other liabilities of a
bank in resolution into shares of the bank including the power –
(a) to reduce (including to zero) the principal amount of, or
outstanding amount due, in respect of eligible liabilities of a bank in
resolution;
(b) to cancel the debt instruments issued by a bank in resolution
except secured liabilities;
(c) to reduce, including reducing to zero, the nominal amount of
shares of a bank in resolution and to cancel such shares;
(d) to require a bank in resolution to issue new shares or other
capital instruments, including preference shares and contingent convertible
instruments.
(2) The Authority may only
exercise the write down or conversion power after carrying out a pre-resolution
valuation (or a provisional valuation, if applicable).
(3) For the purpose of paragraph (2),
a pre-resolution valuation or a provisional valuation, as the case may be,
shall form the basis of the calculation of the write down to be applied to the
relevant capital instruments in order to absorb losses and the level of
conversion to be applied to the relevant capital instruments in order to
recapitalize the bank.
(4) The Authority may
exercise the write down or conversion power –
(a) independently of a
resolution action; or
(b) in combination with a
resolution action, where the resolution conditions are met.
(5) The Authority may exercise
the write down or conversion power in accordance with this Article without
delay in relation to relevant capital instruments issued by a bank in
resolution, when one or more of the following circumstances apply –
(a) the determination has
been made that the resolution conditions have been met, before any resolution
action has been taken;
(b) the Authority
determines that unless the write down or conversion power is exercised in
relation to relevant capital instruments, the bank will no longer be viable;
(c) in the case of relevant
capital instruments issued by a bank that is a subsidiary, and where those relevant
capital instruments are recognized for the purposes of meeting any minimum
requirement for own funds and eligible liabilities set under Article 26,
the Authority determines that unless the write down or conversion power is
exercised the bank’s group would no longer be viable;
(d) in the case of relevant
capital instruments issued by a bank that is a parent, and where those relevant
capital instruments are recognized for the purposes of meeting any minimum
requirement for own funds and eligible liabilities set under Article 26,
the Authority determines that unless the write down or conversion power is
exercised the bank’s group would no longer be viable; or
(e) government financial
assistance is required by the bank except in the circumstances set out in Article 2(e).
(6) In complying with the
requirements under paragraph (5), the Authority shall exercise the write
down or conversion power in accordance with the priority of claims that would
apply if the bank in resolution were to be wound up under relevant insolvency
proceedings, in a way that produces the following results –
(a) Common
Equity Tier 1 items are reduced first in proportion to the losses and to
the extent of their capacity and the Authority takes one or both of the actions
specified in Article 67(1) in respect of the holders of Common Equity Tier 1
instruments;
(b) the
principal amount of Additional Tier 1 instruments is written down or
converted into Common Equity Tier 1 instruments or both, to the extent
required to achieve the resolution objectives or to the extent of the capacity
of the relevant capital instruments, whichever is lower; and
(c) the principal amount of
Tier 2 instruments is written down or converted into Common Equity Tier 1
instruments or both, to the extent required to achieve the resolution
objectives or to the extent of the capacity of the relevant capital
instruments, whichever is lower.
(7) Where the principal
amount of a relevant capital instrument is written down –
(a) the reduction of that
principal amount shall be permanent, subject to any write up in accordance with
Article 66(4);
(b) no liability to the
holder of the relevant capital instrument shall remain under or in connection
with that amount of the instrument which has been written down, except for any
liability already accrued and any liability for damages that may arise as a
result of an appeal against the exercise of the write down or conversion power
(but this shall not prevent the provision of Common Equity Tier 1
instruments to a holder of relevant capital instruments in accordance with paragraph (8));
(c) no compensation is paid
to any holder of the relevant capital instruments other than in accordance with
paragraph (8).
(8) In
order to effect a conversion of relevant capital instruments under paragraph (6)(b),
the Authority or Commission may require banks to issue Common Equity Tier 1
instruments to the holders of the relevant capital instruments and the relevant
capital instruments may only be converted where the following conditions are
met –
(a) those Common Equity Tier 1
instruments are issued by the bank with the agreement of the Authority or Commission;
(b) those Common Equity Tier 1
instruments are issued prior to any issuance of shares by that bank for the
purposes of provision of own funds by a public authority;
(c) those Common Equity Tier 1
instruments are awarded and transferred without delay following the exercise of
the write down or conversion power; and
(d) the conversion rate
that determines the number of Common Equity Tier 1 instruments that are
provided in respect of each relevant capital instrument complies with the
principles set out in Article 69(6).
Chapter 7 – Default Event Provisions
75 Default event provisions
(1) The
following shall be disregarded in determining whether a default event provision
applies –
(a) a crisis prevention
measure, crisis management measure or recognized foreign resolution action
taken in relation to a bank in resolution (or any member of the bank’s group);
and
(b) the occurrence of any
event directly linked to the application of such measure or action,
if the substantive obligations under the contract or other agreement
(which provides the default event provision), including payment and delivery
obligations and the provision of collateral, continue to be performed.
(2) Paragraph (1) applies
where a contract or other agreement –
(a) is entered into by a
bank or foreign bank;
(b) is entered into by a
subsidiary undertaking of a bank or foreign bank, whose obligations are
guaranteed by another group entity in the bank’s group or foreign bank’s group;
or
(c) is entered into by another
group entity in the bank’s group or foreign bank’s group,
and the substantive obligations provided for in the contract or
agreement (including payment and delivery obligations and provision of
collateral) continue to be performed.
(3) A resolution instrument
or share transfer order may make provision for paragraph (4) or (5) to
apply in circumstances where paragraph (1) would not apply.
(4) If this paragraph
applies, the resolution instrument or share transfer order shall be disregarded
in determining whether a default event provision applies.
(5) If this paragraph applies,
the resolution instrument or share transfer order shall be disregarded in
determining whether a default event provision applies except so far as the
resolution instrument or share transfer order provides otherwise.
(6) A reference in paragraph (3),
(4) or (5) to a resolution instrument or share transfer order is a
reference to –
(a) the making of the
resolution instrument or share transfer order;
(b) anything to be done under
the resolution instrument or share transfer order or is to be, or may be, done
under the resolution instrument or share transfer order; and
(c) any action or decision
taken or made under this Law or another enactment in so far as it resulted in,
or was connected to, the making of the resolution instrument or share transfer
order.
(7) A provision in a
resolution instrument or share transfer order under paragraph (6) may
apply paragraph (4) or (5) –
(a) generally or only for
specified purposes, cases or circumstances; or
(b) differently for
different purposes, cases or circumstances.
(8) A thing is not done under
a resolution instrument or a share transfer order for the purposes of paragraph (6)(b)
merely by virtue of being done under a contract or other agreement, rights or
obligations which have been affected by the resolution instrument or share
transfer order.
(9) In this Article –
“default event provision” means a
provision of a contract or other agreement –
(a) that has the effect
that if a specified event or situation arises –
(i) the agreement is
terminated, modified, replaced or suspended,
(ii) rights or duties
under the agreement are terminated, modified, replaced or suspended,
(iii) a right accrues to
terminate, modify or replace the agreement,
(iv) a right accrues to
terminate, modify or replace rights or duties under the agreement,
(v) a set-off or netting
right accrues under the contract,
(vi) a sum becomes payable
or ceases to be payable,
(vii) delivery of anything
becomes due or ceases to be due,
(viii) a right to claim a
payment or delivery accrues, changes or lapses,
(ix) any other right
accrues, changes or lapses, or
(x) an interest is created,
changes or lapses; or
(b) that has the effect that a provision of the
contract or agreement –
(i) takes effect only if a
specified event occurs or does not occur,
(ii) takes effect only if
a specified situation arises or does not arise,
(iii) has effect only for
so long as a specified event does not occur,
(iv) has effect only while
a specified situation lasts,
(v) applies differently if
a specified event occurs,
(vi) applies differently if
a specified situation occurs, or
(vii) applies differently
while a specified situation lasts;
“specified”, in relation to a contract or other agreement,
resolution instrument or share transfer order, means specified in the contract or
other agreement, resolution instrument or share transfer order.
Chapter 8 – Resolution Safeguards
76 Treatment of shareholders in the case of
partial transfers and application of the bail-in tool
Where
one or more of the resolution tools have been applied –
(a) except where sub-paragraph (b)
applies, where the Authority transfers only part of the assets, rights and
liabilities of the bank in resolution, the shareholders and creditors whose
claims have not been transferred shall receive in satisfaction of their claims
at least as much as they would have received if the bank in resolution had been
wound up under relevant insolvency proceedings at the time when the decision
was taken to stabilize the bank; and
(b) where the Authority applies the bail-in tool, the shareholders
and creditors whose claims have been written down or converted to equity shall
not incur greater losses than they would have incurred if the bank in
resolution had been wound up under relevant insolvency proceedings immediately
at the time when the decision was taken to stabilize it.
77 Difference of treatment valuation
(1) For the purpose of assessing whether shareholders and creditors
would have received better treatment if a bank in resolution had been wound up
under relevant insolvency proceedings, the Authority shall, in accordance with
an Order made under Article 49, appoint an independent valuer to carry out
a valuation as soon as practicable after the application of a resolution
action.
(2) A difference of treatment valuation shall be distinct from any
pre-resolution valuation carried out under Article 44, provisional
valuation carried out under Article 45 or definitive valuation carried out
under Article 46.
(3) A difference of treatment valuation shall determine –
(a) the treatment that shareholders, creditors and the Jersey Bank Depositors
Compensation Board would have received if relevant insolvency proceedings in respect of the bank in resolution had
commenced at the time when the decision was taken to stabilize the bank;
(b) the actual treatment that shareholders, creditors and the Jersey
Bank Depositors Compensation Board have received;
(c) whether there is any difference between the treatments referred
to in sub-paragraphs (a) and (b).
(4) A difference of treatment valuation shall –
(a) assume that relevant
insolvency proceedings in
respect of the bank in resolution would have commenced on the date on which the
decision was taken to stabilize it;
(b) assume that the bank in resolution would have been liquidated in
full on the date referred to in sub-paragraph (a);
(c) assume that the stabilization action has not been effected; and
(d) disregard any provision of extraordinary public financial support
to the bank in resolution.
(5) A difference of treatment valuation shall be carried out in
accordance with standards set or adopted by the Authority under Article 48.
78 Safeguard for shareholders and creditors
If the difference of
treatment valuation determines that any shareholder or creditor would incur greater
losses than it would incur in a winding up under relevant insolvency
proceedings contrary to the general principle of resolution under Article 35(g), the shareholder or creditor shall be entitled to the payment of
the difference as compensation from the Fund.
79 Procedural requirements
after creation of a resolution instrument or share transfer order
(1) As soon as is reasonably practicable after
the creation of a resolution instrument or a share transfer order by which a
resolution action is taken (including a foreign resolution instrument), the Authority
shall publish or procure the publication of a copy of the resolution instrument
or share transfer order or a notice summarizing the key terms of the resolution
instrument or share transfer order by the following means –
(a) by sending it to –
(i) the bank in resolution,
(ii) the Commission,
(iii) the Minister,
(iv) the Jersey Bank Depositors Compensation Board, and
(v) the Viscount;
(b) by publishing it on the website of –
(i) the Commission,
(ii) the States, and
(iii) the bank in resolution;
(c) by publishing it –
(i) in the Jersey Gazette, and
(ii) in any other national or international newspaper or other
publication which in the opinion of the Authority would maximise the likelihood
of the resolution instrument or share transfer instrument coming to the
attention of affected persons;
(d) by requesting that the Minister lay a copy before the States
Assembly (and the Minister shall lay such copy before the States Assembly at
the earliest opportunity); and
(e) if securities issued by the bank in resolution have been
admitted to trading on a regulated market, by means of a relevant regulatory
information service.
(2) In paragraph (1) “relevant regulatory information service”
means a service approved by the Authority to disseminate
information in accordance with this Law.
80 Safeguard for partial transfers
(1) Where the
Authority –
(a) transfers some but not
all of the assets, rights or liabilities of a bank in resolution to another
entity or, in the application of a resolution tool, from a bridge bank or asset
management vehicle to another person; or
(b) exercises the power under
Article 29(1)(p),
the arrangements specified
in paragraph (2) and the counterparties of such arrangements shall, subject to paragraph (4), be protected.
(2) The arrangements
protected under paragraph (1) are as
follows –
(a) security arrangements, under which a person has by way of
security an actual or contingent interest in the assets or rights that are
subject to transfer, irrespective of whether that interest is secured by
specific assets or rights or by way of a floating charge or similar
arrangement;
(b) title transfer financial collateral arrangements under which
collateral to secure or cover the performance of specified obligations is
provided by a transfer of full ownership of assets from the collateral provider
to the collateral taker, on terms providing for the collateral taker to
transfer assets if those specified obligations are performed;
(c) set-off arrangements under which 2 or more claims or obligations
owed between the bank in resolution and a counterparty can be set off against
each other;
(d) netting arrangements;
(e) covered bonds; or
(f) structured finance
arrangements, including securitisations and instruments used for hedging
purposes which form an integral part of the cover pool and which according to
Jersey law are secured in a way similar to the covered bonds which involve the
granting and holding of security by a party to the arrangement or a trustee,
agent or nominee.
(3) Paragraph (2) shall apply irrespective of the number of
parties involved in the arrangements or whether the arrangements –
(a) are created by contract, trusts or other means, or arise
automatically by operation of law; or
(b) arise under or are governed in whole or in part by the law of
another jurisdiction.
(4) The form and extent of protection that is appropriate for the
classes of arrangements specified in paragraph (2) shall be as provided in
Article 81, 82, 83, 84, or 85, as the case may be.
81 Protection for security arrangements
To protect liabilities
secured under security arrangements referred to in Article 80(2)(a), the
following shall not be permitted –
(a) the transfer of assets against which a liability is secured,
unless that liability and the benefit of the security are also transferred;
(b) the transfer of a secured liability, unless the benefit of the
security is also transferred;
(c) the transfer of the benefit of the security, unless the secured
liability is also transferred; or
(d) the modification or termination of a security arrangement
through the exercise of ancillary powers, if the effect of that modification or
termination is that the liability ceases to be secured.
82 Protection for title transfer financial
collateral, set-off and netting arrangements
To protect title transfer
financial collateral arrangements referred to in Article 80(2)(b), set-off
arrangements referred to in Article 80(2)(c) and netting arrangements
referred to in Article 80(2)(d), the transfer of some, but not all, of the
rights and liabilities that are protected under any such arrangement between
the bank in resolution and another person, and the modification or termination
of rights and liabilities that are protected under any such arrangement through
the exercise of ancillary powers, shall not be permitted.
83 Protection for structured finance
arrangements and covered bonds
To protect structured finance arrangements and covered bonds referred to in Article 80(2)(e) and (f), the
following shall not be permitted –
(a) the transfer of some, but not all, of the assets, rights and
liabilities which constitute or form part of a structured finance arrangement
or covered bond; or
(b) the termination or modification, through the exercise of
ancillary powers, of the assets, rights and liabilities which constitute or
form part of a structured finance arrangement or covered bond,
to which the bank in
resolution is party.
84 Transfer or modification of covered
deposits and other assets, rights or liabilities
Despite Articles 81,
82 and 83, where necessary to ensure availability of the covered deposits, the
Authority may –
(a) transfer covered deposits which are part of any of the
arrangements referred to in those Articles without transferring other assets,
rights or liabilities that are part of the same arrangements; or
(b) transfer, modify or terminate the assets, rights or liabilities referred
to in paragraph (a) without transferring the covered deposits.
85 Protection of payment, clearing and
settlement systems: partial transfers
The application of a
resolution tool shall not prejudice the operation of payment, clearing and
settlement systems where the Authority –
(a) transfers some but not all of the assets, rights or liabilities
of a bank in resolution to another entity; or
(b) exercises its resolution power under Article 29(1)(p).
Chapter 9 –
Miscellaneous
86 International obligations
(1) The
Authority shall not exercise a resolution power in respect of a bank if the Minister,
Commission or Attorney General serves a notice on the Authority stating that the
exercise of that resolution power would be likely to contravene an international
obligation of the United Kingdom or Jersey.
(2) The Authority may request that the Minister, Commission or Attorney
General serves an international obligation notice on the Authority where the
Authority believes that it is at risk of exercising a resolution power that may
contravene an international obligation of the United Kingdom or Jersey.
(3) An international obligation notice –
(a) shall be in writing;
(b) shall state the reasons that the Minister, Commission or Attorney
General (as the case may be) believes that the exercise of a resolution power
would cause Jersey to contravene an international obligation of the United
Kingdom or Jersey;
(c) shall state any actions that the Authority must take or must not
take in order to comply with an international obligation of the United Kingdom
or Jersey; and
(b) may be withdrawn (generally, partially or conditionally).
(4) If the Authority receives an international obligation notice,
the Authority shall consider the alternative courses of action that achieve the
resolution objectives but shall avoid the objections on which the international
obligations notice is based.
87 No requirement for advice
or opinion on technical area
Nothing in Article 86(1) or (2)
shall require the Minister, Commission, Attorney General or Authority or any other
person to give advice or an opinion on a technical area that is outside of that
person’s scope, jurisdiction or technical expertise.
88 Post resolution report
(1) The Authority shall submit
a report to the Minister with respect to any resolution action taken in respect
of a bank no more than 12 months after the resolution action has been
concluded.
(2) A report under paragraph (1)
shall include –
(a) a summary of the
financial information relating to the resolution of the bank, including the
findings of each of the valuations carried out, in particular, outlining the
findings of the valuations in relation to the position of creditors, the general
principle of resolution under Article 35(g) and
the resolution safeguard under Article 78;
(b) an outline of the other
information available to the Authority based upon which it made the decision to
take a resolution action;
(c) if relevant, a review
of the quality of the information under sub-paragraph (a) or (b);
(d) an outline of relevant
information which has subsequently come into the possession of the Authority
highlighting the extent to which that information has changed from the
information which formed the basis of its decision to take a resolution action;
(e) a review of the
decision to take a resolution action, including an assessment of the extent to
which the information which has subsequently come into the possession of the
Authority might have led the Authority to have made a different decision had
that information been in its possession at the time that the decision was made;
(f) an assessment of the
effect of the resolution action and the extent to which that effect is
consistent with the intended effect of the resolution action;
(g) an assessment of
lessons learned, including practical hurdles encountered and any fundamental
deficiencies identified as a result of the resolution action; and
(h) proposals, if any, for
any changes to address the lessons learned.
(3) The Minister shall lay
before the States a copy of report submitted to him or her under paragraph (1)
as soon as practicable after it is submitted.
89 Recognition of foreign
resolution actions
(1) Subject to the approval
of the Minister and to paragraph (2), where the Authority is notified of a
foreign resolution action in respect of a foreign bank, the Authority shall make
an instrument –
(a) recognizing the foreign
resolution action;
(b) refusing to recognize
the foreign resolution action; or
(c) recognizing part of the
foreign action and refusing to recognize the remainder of the foreign resolution
action.
(2) The Authority may refuse
to recognize a foreign resolution action (or any part of it) if it is satisfied
that one or more of the following conditions are met –
(a) such recognition would
have an adverse effect on financial stability in Jersey;
(b) the taking of a resolution
action by the Authority in relation to a branch located in Jersey of a foreign
bank is necessary to achieve one or more of the resolution objectives;
(c) under the foreign
resolution action, creditors (including, in particular, depositors) located or
payable in Jersey would not, by reason of being located in Jersey, receive the
same treatment, and have similar legal rights, as creditors (including
depositors) who are located or payable in the foreign jurisdiction concerned;
(d) recognition of, and
taking action in support of, the foreign resolution action (or the relevant part
of the foreign resolution action) would have material fiscal implications for
Jersey; or
(e) such recognition would
be unlawful under Article 7(1) of the Human Rights (Jersey) Law 2000[42].
(3) The recognition of a
foreign resolution action (or any part of it) shall not prejudice the winding
up of a bank under a bank winding up order unless the winding up of the bank conflicts
with the recognized foreign resolution action, in which case the recognized
foreign resolution action shall take precedence.
(4) Where a foreign
resolution instrument has been made by the Authority under this Article which
recognizes a foreign resolution (or part of the foreign resolution action),
such foreign resolution action (or part of the foreign resolution action) shall
produce the same legal effects in Jersey as it would have produced had it been
made under the law of Jersey.
(5) For the purposes of
supporting, or giving full effect to, a recognized foreign resolution action,
the Authority may exercise one or more stabilization tools, or one or more
stabilization powers.
(6) The Authority may make a
foreign resolution instrument which has effect in respect of a bank which is a subsidiary
of a foreign bank which recognizes a group resolution action whether or not it
carries out certain resolution actions under this Law on the entity in Jersey.
(7) A foreign resolution
instrument may include incidental, consequential or transitional provisions
which may be general or for specified purposes, cases or circumstances and may
make different provision for different purposes, cases or circumstances.
(8) As soon as reasonably
practicable after the making of a foreign resolution instrument under this
Article, the requirements of the foreign resolution instrument shall be
complied with by the Authority.
(9) Any decision (including
appropriate rationale for such decision) to refuse to recognize a foreign
resolution action, to recognize a foreign resolution action only in part or to
take independent actions to resolve a bank which is a subsidiary of a foreign
bank, shall be communicated by the Authority clearly to the group concerned and
to the resolution authority in the group’s home jurisdiction (and relevant
jurisdiction, if appropriate).
PART 7
BANK WINDING UP
90 Grounds for application
for bank winding up order
(1) An application for an
order for the winding up of a bank may be made under Article 91 in respect
of a bank on any of the following grounds which will be considered by the Court
in determining the application in accordance with Articles 95 and 96 –
(a) the bank is unable, or
likely to become unable, to pay its debts;
(b) the winding up of the bank
would be in the public interest; or
(c) the winding up of the bank
would be fair.
(2) In paragraph (1)
“fair” means just and equitable.
91 Application for bank winding up order
(1) An application for a bank
winding up order may be made to the Court by –
(a) the Authority;
(b) the Commission;
(c) the Minister; or
(d) a bank or any
shareholder or creditor of the bank.
(2) An
application for a bank winding up order under paragraph (1) –
(a) shall
be made in the form prescribed;
(b) shall be accompanied by
an affidavit of a representative of the applicant setting out the grounds for
the application;
(c) may, where relevant, be
accompanied by an affidavit of a representative of the Commission giving the
opinion of the Commission in relation to the bank continuing, or failing to continue,
to satisfy the Commission that it is a fit and proper person to be registered
to undertake deposit-taking business in accordance with Article 10(3)(a)
of the 1991 Law; and
(d) shall nominate one or
more persons to be appointed as a bank liquidator of the bank being wound up.
92 Notice of application
Where an application for a bank winding up order is made under Article 91,
the applicant shall, not less than 48 hours before the making of the
application, give notice of the application to –
(a) the Authority (if the
Authority is not the applicant);
(b) the bank;
(c) the Commission (if the
Commission is not the applicant);
(d) the Minister (if the
Minister is not the applicant);
(e) the Jersey Bank Depositors
Compensation Board; and
(f) the Viscount.
93 Right to be heard in proceedings for a bank
winding up order
The following persons shall have the right to be heard (or to make
representations) at the proceedings for the granting of a bank winding up order –
(a) the applicant;
(b) the Authority;
(c) the Commission;
(d) the Minister;
(e) the Viscount;
(f) the Jersey Bank Depositors
Compensation Board;
(g) the bank or any shareholder
of the bank; and
(h) upon application to the
Court and with leave of the Court, other interested parties.
94 Restriction on bankruptcy
or winding up proceedings etc.
(1) Despite
any other rule of law to the contrary –
(a) the
right to take any proceedings in bankruptcy against a bank other than
proceedings to wind up a bank under this Part is barred; and
(b) the right to wind up a
bank under Article 155 of the Companies (Jersey) Law 1991[43] is barred.
(2) The Court shall not grant
a bank winding up order on the application of a bank or any shareholder or
creditor of a bank unless with the consent of the Authority.
95 Decision of the Court
If an application for a bank winding up order is made to the Court
in accordance with this Part, the Court may –
(a) in accordance with Articles 96
and 97, grant the application and make the bank winding up order;
(b) adjourn the application
(either sine die or to a specified date) on
such terms as it deems fit; or
(c) dismiss the application.
96 Bank winding up order
(1) The Court
may grant an application for a bank winding up order made to the Court in
accordance with this Part and make a bank winding order –
(a) if
the Court is satisfied that –
(i) the
ground specified in Article 90(1)(a) or 90(1)(c) applies, and
(ii) having
regard to the timing and other relevant circumstances, it is not reasonably
likely (ignoring the stabilization powers), that any action will be taken by or
in respect of a bank that will prevent its failure or likely failure; or
(b) if
the Court is satisfied that the ground specified in Article 90(1)(b)
applies.
(2) If an
application is made to the Court by the Authority for a bank winding up order
in accordance with this Part, the Court may grant the application and make a
bank winding order if the Court is satisfied that –
(a) the
ground referred to in Article 90(1)(a) applies;
(b) the
Authority has or intends to make a property transfer instrument in respect of a
bank under the sale of business tool or bridge bank tool; and
(c) the
residual bank is unable to pay its debts as they fall due or would become so as
a result of the property transfer instrument that the Authority intends to make.
97 Contents of bank winding
up order
A bank winding up order –
(a) shall name the persons
appointed as the bank liquidator in accordance with Article 98;
(b) shall specify the
powers of the bank liquidator set out in Article 104 and specify which of
those powers –
(i) may be exercised by
the bank liquidator without further reference to the Court or the bank
liquidation committee,
(ii) may only be exercised
by the bank liquidator with the prior sanction of the bank liquidation
committee, and
(iii) may only be exercised
by the bank liquidator with the prior sanction of the Court.
(c) may direct
the manner in which the winding up of the bank is to be conducted (to the
extent that such direction is required in addition to the provisions of this
Law);
(d) shall
specify matters which must be reported to the bank
liquidation committee by the bank liquidator, including how often such matters
must be reported on; and
(e) may make
such provisions as the Court sees fit including such provisions to ensure that
the winding up of the bank is conducted in an orderly manner.
98 Appointment of bank liquidator
(1) The Court may, in
accordance with this Article, upon a nomination being made in an application
under Article 91, appoint the Viscount as the bank liquidator or 2 or more
persons as bank liquidators and may, upon reason being given, remove a person
appointed as a bank liquidator in a bank winding up and may appoint another.
(2) A person shall not be appointed
as a bank liquidator unless that person has consented to such appointment.
(3) Subject
to paragraph (5), a person is not qualified for appointment as a bank
liquidator unless the person is an individual who is –
(a) a
member of –
(i) the
Institute of Chartered Accountants in England and Wales,
(ii) the
Institute of Chartered Accountants of Scotland,
(iii) the
Institute of Chartered Accountants in Ireland, or
(iv) the Association of Chartered
Certified Accountants;
(b) a licensed insolvency
practitioner in England and Wales, Scotland or Northern Ireland; or
(c) appointed by the Court
to act as an insolvency practitioner in respect of an application made under Article 91.
(4) The
Viscount is by virtue of the Viscount’s office qualified for appointment as a
bank liquidator.
(5) A
person is disqualified from appointment as a bank liquidator if the person is –
(a) an
officer, employee or auditor of the bank, or a partner or employee of such a
person; or
(b) a
person against whom an order under Article 78 of the Companies (Jersey)
Law 1991[44] is
in force.
(6) A
person is disqualified from appointment as a bank liquidator if the person
is disqualified under paragraph (5) for appointment as a liquidator of any
subsidiary or holding company of the bank or a subsidiary of the bank’s holding
company.
(7) A bank liquidator shall
vacate office if the bank liquidator ceases to be a person qualified to act as
a bank liquidator.
(8) A person who acts as a
bank liquidator when not qualified to do so shall be guilty of an offence and
shall be liable to imprisonment for a term of 2 years and to a fine.
99 Objectives of a bank
liquidator in exercising his or her duties
(1) In exercising his or her duties under this
Law, the objectives of a bank liquidator shall be –
(a) to work with the Jersey
Bank Depositors Compensation Board to ensure that as soon as reasonably
practicable each eligible depositor –
(i) has the relevant account transferred to
another bank, or
(ii) receives payment from (or on behalf of)
the Depositors Compensation Fund or from the bank liquidator acting as the bank,
if applicable, or from the deposit guarantee scheme of another jurisdiction in
which the bank has a branch, as applicable;
(b) in circumstances where
part of the business of the bank has been sold using the sale of business tool,
or transferred to a bridge bank using the bridge bank tool, to support the
transferee by ensuring the provision of such services and facilities by the
residual bank as are required to enable the transferee, in the opinion of the
Authority, to operate the transferred business effectively; and
(c) to wind up the affairs
of the bank so as to achieve the best result for the bank’s creditors as a
whole.
(2) For the purposes of paragraph (1)(c),
“so as to achieve the best result for the bank’s creditors as a whole” shall
not necessarily be construed as meaning that the bank must be wound up quickly
for the benefit of its creditors.
(3) The objective –
(a) in paragraph (1)(a)
shall take precedence over the objectives in paragraph (1)(b) and (c); and
(b) the objective in paragraph (1)(b)
shall take precedence over the objective in paragraph (1)(c),
but the bank liquidator shall be under a duty to begin working towards
all of the objectives, so far as practicable, immediately upon appointment.
100 Persons appointed as bank liquidator
to act jointly and severally
Where 2 or more bank liquidators are appointed in respect of a bank
under Article 98, the powers and obligations granted to or imposed on a bank
liquidator under this Part shall be exercisable by them jointly and severally
such that they may act together or one may act without the other (and by doing
so will bind the other) in the exercise of their powers and obligations.
101 Bank liquidation committee
(1) On the making of a bank
winding up order, a bank liquidation committee shall be established, for the
purpose of ensuring that the bank liquidator properly exercises the functions
of a bank liquidator in accordance with this Part.
(2) The bank liquidation
committee shall comprise members who shall be representatives each nominated by
and representing one of the following –
(a) the Authority (who
shall be the chairman);
(b) the Commission;
(c) the Jersey Bank
Depositors Compensation Board; and
(d) the Minister.
(3) A body nominating a member as its
representative on the bank liquidation committee under paragraph (2) may
replace its member at any time or nominate a
person to be an alternate member to attend, in place of the member, meetings of
the bank liquidation committee if that member is for any reason unable to
attend.
(4) When attending meetings
of the bank liquidation committee, an alternate member shall for all purposes
be deemed to be a member of the bank liquidation committee.
(5) The bank
liquidator shall report to the bank liquidation committee about any matter as the
Court directs in the bank winding up order –
(a) on request;
(b) which the bank
liquidator thinks is likely to be of interest to the bank liquidation committee;
or
(c) generally, at such
intervals as may be agreed between the bank liquidator and the bank liquidation
committee.
(6) A meeting of the bank liquidation committee
may be summoned –
(a) by any member of the
bank liquidation committee; or
(b) by the bank liquidator,
and in any event a meeting shall be held at least every 28 days
from the date of the winding up order until the final meeting of the bank liquidation
committee under Article 141.
(7) At a meeting of the
bank liquidation committee –
(a) at least 2 members
including a representative each of the Authority and Minister shall form a
quorum;
(b) the chairman shall
preside;
(c) each member shall have
one vote on each matter for deliberation;
(d) in the event of an
equality in the votes the chairman shall have a casting vote; and
(e) a member shall be
treated as being present in a meeting of the bank liquidation committee if,
during the meeting, either by way of telephone, a live television link, or
video link or otherwise, the member is able to hear all the other members in
the meeting and to be heard by all the other members in the meeting.
(8) The bank liquidation committee may –
(a) seek advice from the Viscount relating to the
winding up of a bank;
(b) co-opt the Viscount to attend a meeting of
the bank liquidation committee to give advice to the bank liquidation committee
on any matter relating to its functions but the Viscount shall not have the
right to vote at the meeting; or
(c) co-opt a person to attend a meeting of the
bank liquidation committee to give advice to the bank liquidation committee on
any mater relating to its functions but such person shall not have the right to
vote at the meeting.
(9) As soon as reasonably practicable after its
establishment, the bank liquidation committee shall recommend the bank
liquidator to pursue –
(a) the objective specified
in Article 99(1)(a)(i);
(b) the objective specified
in Article 99(1)(a)(ii); or
(c) the objective specified
in Article 99(1)(a)(i) for a specified class of case and the objective specified
in Article 99(1)(a)(ii) for another.
(10) In making a
recommendation under paragraph (9), the bank liquidation committee shall consider –
(a) the desirability of
achieving the objective specified in Article 99(1)(a)(i) or (ii) as
quickly as possible;
(b) the need for the
provision of services and facilities in circumstances where the objective specified
in Article 99(1)(b) is relevant; and
(c) the objective specified
in Article 99(1)(c).
(11) If the bank liquidation
committee thinks that the bank liquidator is failing to comply with the bank
liquidation committee’s recommendation made under paragraph (9), the bank
liquidation committee may apply to the Court for directions seeking
confirmation, reversal or modification of the acts or decisions of the bank
liquidator and the Court may make such consequential order as it thinks fit.
(12) If the bank liquidation
committee has not made a recommendation under paragraph (9), the bank
liquidator may apply to the Court under paragraph (19) and the Court may,
in particular, give a direction, in lieu of a recommendation, if the bank
liquidation committee fails to make a recommendation within a period set by the
Court.
(13) The bank liquidator shall –
(a) keep the bank
liquidation committee informed of progress towards the objective specified in Article 99(1)(a)(i)
or (ii);
(b) notify the bank
liquidation committee when, in the bank liquidator’s opinion, the objective
specified in Article 99(1)(a)(i) or (ii) has been achieved entirely
so far as reasonably practicable, as the case may be;
(c) keep the bank
liquidation committee appraised of the ongoing provision of services and
facilities in accordance with the objective specified in Article 99(1)(b) and
seek to agree an appropriate timeline for the continuation, winding down or
transfer to a third party of the maintenance and provision of such services and
facilities;
(d) notify the bank
liquidation committee when, in the bank liquidator’s opinion, the objective
specified in Article 99(1)(b) is no longer relevant because –
(i) the services and facilities which were
previously being provided to the transferee in accordance with the objective
specified in Article 99(1)(b) are no longer required by the transferee, or
(ii) the provision of the services and
facilities referred to in clause (i) has been transferred to a third party;
and
(e) report to the bank
liquidation committee in respect of any other matters which were specified by the
Court in the bank winding up order under Article 97(d).
(14) The bank liquidation
committee shall oversee –
(a) each of the matters specified
in paragraph (13); and
(b) the bank liquidator
generally.
(15) As soon as reasonably
practicable after receiving a notification under paragraph (13)(b), the
bank liquidation committee shall –
(a) pass a resolution that the
objective specified in Article 99(1)(a)(i) or (ii) has been achieved
entirely or so far as reasonably practicable, as the case may be; or
(b) apply to the Court for
confirmation, reversal or modification of the acts or decisions of the bank
liquidator with respect to the objectives specified in Article 99(1)(a)
and the Court may make such consequential order as it thinks fit.
(16) As soon as reasonably practicable
after receiving a notification under paragraph (13)(d), the bank
liquidation committee shall –
(a) pass a resolution that
the objective specified in Article 99(1)(b) is no longer relevant because
of the reasons set out at paragraph (13)(d); or
(b) apply to the Court for
confirmation, reversal or modification of the acts or decisions of the bank
liquidator with respect to the objective specified in Article 99(1)(b),
and the Court may make such consequential order as it thinks fit.
(17) Where a bank
liquidation committee passes a resolution under paragraph (15)(a) –
(a) the bank liquidator shall
summon a meeting of creditors;
(b) subject to sub-paragraph (c),
the meeting of creditors shall elect an individual as a new member of the bank
liquidation committee to represent the interests of creditors; and
(c) the person representing
the Jersey Bank Depositors Compensation Board may, if that person considers it fit,
resign from the bank liquidation committee (in which case, a new member may be
elected under sub-paragraph (b)).
(18) Where a bank
liquidation committee passes a resolution under paragraph (16)(a), the
bank liquidator shall summon a meeting of creditors and –
(a) the meeting may elect
such number of additional individuals as the meeting sees fit as new members of
the bank liquidation committee to represent the interests of creditors; and
(b) the representatives of
the Authority, Commission, Minister and Viscount may, if they each individually
consider fit, resign from the bank liquidation committee.
(19) A person aggrieved by
any action of the bank liquidation committee before it has passed a resolution under
paragraph (15)(a) may apply to the Court, and the Court may make any order
as it thinks fit (including an order for the repayment of money).
(20) The Court may (whether
on an application under paragraph (19), on the application of the bank
liquidator or otherwise) make an order that the bank liquidation committee is
to be treated as having passed a resolution under paragraph (15)(a).
(21) If a bank liquidation
committee fails to comply with paragraph (15) or (16), the bank
liquidator shall apply to the Court –
(a) for an order under paragraph (19);
or
(b) for directions seeking
confirmation, reversal or modification of the acts or decisions of the bank
liquidation committee, and the Court may make such order as it thinks fit.
102 Commencement and taking
effect of bank winding up order
A bank winding up order shall commence and take effect from the date
that the bank winding up order is made.
103 Effects of bank winding up order
(1) A bank winding up order shall have the following general effects –
(a) in the circumstances where the objective in Article 99(1)(b)
is relevant, the bank liquidator shall, at the request of the Authority, enter
into an agreement for the residual bank to provide services or facilities to
the transferee, and –
(i) in pursuing the objective in Article 99(1)(b), the bank liquidator
shall have regard to the terms of that or any other agreement entered into
between the residual bank and the transferee,
(ii) the bank liquidator shall avoid action that is likely to
prejudice performance by the residual bank of its obligations in accordance
with the terms referred to in clause (i),
(iii) the bank liquidator shall seek to ensure
that an agreement referred to in clause (i) provides for consideration to
be paid at market rate, although this shall not prevent the bank liquidator
from entering into an agreement on any terms that the bank liquidator thinks
necessary in pursuit of the objective in Article 99(1)(b),
(iv) if in doubt about the effect of the terms referred to in this
paragraph or their interplay with the bank winding up in general, the bank
liquidator may apply to the Court for directions, and
(v) the transferee may apply to the Court for directions about any
dispute or disagreement with the residual bank;
(b) a lien or other right to retain possession of a record of the bank
shall be unenforceable to the extent that its enforcement would deny possession
of the record to the bank liquidator;
(c) all the powers of the directors of the bank shall cease, except
so far as the liquidation committee sanction their continuance;
(d) no action shall be taken or proceeded with against the bank or
its property except by leave of the Court and subject to such terms as the
Court may impose;
(e) despite anything to the contrary in the Judgments (Reciprocal
Enforcement) (Jersey) Law 1960[45], no application shall be made for a judgment, against the bank, to
be registered
in the Court under that Law and if made, shall not be
registered or enforceable under that Law;
(f) no execution in Jersey of any existing judgment in Jersey or outside
Jersey against the bank shall be made;
(g) the corporate state and capacity of the bank shall continue
until the bank is dissolved;
(h) subject to paragraph (3), any transfer of shares, not being
a transfer made to or with the sanction of the bank liquidator, and any
alteration in the status of the bank’s shareholders made after the commencement
of the bank winding up order shall, unless the Court otherwise orders, be void;
(i) any disposition of the bank’s property made after the
commencement of the bank winding up order shall, unless the Court otherwise
orders, be void, excluding any disposition made with the consent of the bank
liquidator; and
(j) any attachment, sequestration, distress or execution put in
force against the estate or effects of the bank after the commencement of the
bank winding up order, shall be void.
(2) Paragraph (1)(b) shall not apply to a lien on a document
that gives a title to property and is held as such.
(3) Paragraph (1)(h) shall not prohibit any
transfer of shares made pursuant to a power under the Security Interests (Jersey)
Law 1983[46] or Part 7 of the
Security Interests (Jersey) Law 2012[47], even if such transfer is
not made to, or with the sanction of, the bank liquidator.
104 Powers of bank liquidator
Subject to Article 97(b), the bank
liquidator, with the approval of the Court or the bank liquidation committee as
specified in the bank winding up order, shall have the power –
(a) to do anything
reasonably necessary or expedient for the pursuit of the objectives specified
in Article 99;
(b) to call a meeting of
creditors;
(c) to publish such notices
as the bank liquidator deems necessary or expedient with a view to inviting
claims;
(d) to require the bank or
any of its officers, employees or auditors to provide the bank liquidator with
such information, including by inspection of books, papers and records, and to
give such other assistance to the bank liquidator, as the bank liquidator may
reasonably require for the purposes of carrying out his or her functions in
relation to the bank winding up;
(e) to require directors,
senior managers and officers, and former directors, former senior managers and
former officers of the bank to make a statement as to the affairs of the bank
and, if requested, to verify the same by affidavit;
(f) to apply the rules
referred to in Article 111;
(g) to pay a class of
creditors in full (even if any other class is not repaid in full) and
compromise any claim by or against the bank;
(h) to comply with a
request of the Jersey Bank Depositors Compensation Board for the provision of
information and to provide any information to the Jersey Bank Depositors
Compensation Board which the bank liquidator thinks might be useful for the
purpose of cooperating in pursuit of the objectives specified in Article 99(1)(a);
(i) to exercise any of the
powers of the bank as may be required for its orderly winding up, including but
not limited to carrying on its business (including continuing to provide
services and advice to clients), transferring its business to another legal
person, the making of payments, assigning rights and interests, borrowing,
charging assets, incurring liabilities in the ordinary course of its business,
settling litigation issues faced by the bank, and progressing litigation in
which the bank is the pursuer;
(j) in circumstances where
Article 99(1)(b) is relevant, to support the transferee by continuing to
supply such services and facilities as are required to enable the transferee,
in the opinion of the Authority, to operate the transferred business
effectively;
(k) to continue any other
regulated activities undertaken by the bank and its subsidiary entities in
conjunction with any existing professional advisers and employees of the bank
as the bank liquidator considers appropriate for the bank’s orderly winding up,
having regard to the views and actions of the participants or clients of such
activities and to the views of the Commission and any other interested party;
(l) to exercise all such
powers as would ordinarily be exercisable by the directors of any regulated
subsidiary entities or asset management entities of the bank being wound up,
for the purposes of enabling such entity to continue managing or advising,
acting as general partner, trustee, custodian or investment adviser of, or
carrying on any other financial services business in respect of, any
investments or regulated activities as the bank liquidator considers
appropriate for the bank’s orderly winding up;
(m) in consultation with the
Commission and the Joint Financial Crimes Unit of the States Police Force, to
investigate such matters that might be to the benefit of the creditors or
shareholders, or in the public interest, subject to applying to the Court for
directions if a conflict of interest arises, as set out at Article 108(1);
(n) to settle a list of
contributories (and the list of contributories is prima facie evidence of the
persons named in it to be contributories);
(o) on application to, and
with the approval of the Court, to order that a contributory identified in the
list under paragraph (n) shall pay any money due from the contributory (or
from the estate of the person who the contributory represents) to the bank, excluding
any money payable by him or her or the estate by virtue of any call (without
prejudice to any right of set-off available to the contributory, excluding any money
due to him or her as a member of the bank in respect of any dividend or profit);
(p) to make calls;
(q) to summon a general
meeting of the bank for the purpose of obtaining its sanction by special
resolution or for any other purpose the bank liquidator may think fit;
(r) to disclaim onerous
property under Articles 105 and 106 as the bank liquidator may think fit;
(s) to charge the bank
liquidator’s remuneration, and any costs, charges and expenses properly
incurred in a bank winding up, out of the bank’s assets in accordance with Article 108(7);
(t) to engage such
professional advisers as the bank liquidator may deem appropriate or necessary
and for the cost and expenses for using such advisers to be payable in
accordance with Article 108(7);
(u) to
employ, retain, pay and manage employees of the bank;
(v) to effect and maintain
insurances in respect of the business and property of the bank;
(w) to do all such things
(including the carrying out of works) as may be necessary for the realisation
of the property of the bank;
(x) to make any payment
which is necessary or incidental to the performance of the bank liquidator’s
functions;
(y) to apply to the Court for the determination of a question
arising in the bank winding up, or for the Court to exercise any of its powers
in relation to the bank winding up;
(z) to apply to the Court
for additional powers or amendment of the bank liquidator’s powers and for the sanctioning
or ratification of any of his or her acts or omissions;
(aa) to transfer trust
property of a trust held by the bank in its capacity as trustee of the trust to
another trustee appointed and substituted as trustee of that trust in
accordance with the applicable law and the trust instrument;
(ab) to exercise all such powers
as would ordinarily be exercisable by the directors and employees of the bank
to continue the regulated activities of the bank as the bank liquidator
considers appropriate including the making of applications to the Commission in
respect of those regulated activities; and
(ac) to exercise any other powers
conferred on a bank liquidator under this Law.
105 Power to disclaim onerous property
(1) For the purpose of this Article “onerous property” means –
(a) movable property;
(b) a contract lease;
(c) immovable property if it is situated outside Jersey,
that is unsaleable or not
readily saleable or is such that it may give rise to a liability to pay money
or perform any other onerous act, and includes an unprofitable contract.
(2) The bank liquidator may, within 6 months after the
commencement of a bank winding up order, by the giving of notice signed by him
or her and referring to this Article and Article 107 to each person who is
interested in or under any liability in respect of the property disclaimed,
disclaim on behalf of the bank any onerous property of the bank.
(3) A disclaimer under this Article shall –
(a) operate so as to determine, as from the date of the disclaimer,
the rights, interests and liabilities of the bank in or in respect of the property
disclaimed; and
(b) discharge the bank from
all liability in respect of the property as from the date of the commencement
of the bank winding up order,
but shall not, except so
far as necessary for the purpose of releasing the bank from liability, affect
the rights or liabilities of any other person.
(4) A person sustaining loss or damage in consequence of the
operation of a disclaimer under this Article shall be deemed to be a creditor
of the bank to the extent of the loss or damage and accordingly may prove for
the loss or damage in the winding up.
106 Disclaimer of contract leases
(1) The disclaimer of a contract lease under Article 105 does
not take effect unless a copy of the disclaimer has been served (so far as the bank
liquidator is aware of their addresses) on every person claiming under the bank
as a hypothecary creditor or under lessee and either –
(a) no application under Article 107 has been made with respect
to the contract lease before the end of the period of 14 days beginning
with the day on which the last notice under this paragraph was served; or
(b) where an application referred to in sub-paragraph (1) has
been made, the Court directs that the disclaimer is to have effect.
(2) Where the Court gives a direction under paragraph (1)(b) it
may also, instead of or in addition to any order it makes under Article 107,
make such orders with respect to fixtures, tenant’s improvements and other
matters arising out of the lease as it thinks fit.
107 Powers of Court in respect of disclaimed
property
(1) This Article applies where the bank liquidator of a bank has
disclaimed property under Article 105.
(2) An application may be made to the Court under this Article by –
(a) any person who claims an interest in the disclaimed property
(which term shall be taken to include, in the case of the disclaimer of a
contract lease, a person claiming under the bank as a hypothecary creditor or
an under lessee); or
(b) any person who is under any liability in respect of the disclaimed
property (which term shall be taken to include a guarantor), not being a
liability discharged by the disclaimer.
(3) Subject to paragraph (4), the Court may, on an application
under this Article, make an order on such terms as it thinks fit for the vesting
of the disclaimed property in, or for its delivery to –
(a) a person entitled to it or a trustee for such a person; or
(b) a person subject to a liability mentioned in paragraph (2)(b)
or a trustee for such a person.
(4) The Court shall not make an order by virtue of paragraph (3)(b)
except where it appears to the Court that it would be just to do so for the
purpose of compensating the person subject to the liability in respect of the
disclaimer.
(5) The effect of an order under this Article shall be taken into
account in assessing for the purpose of Article 105(4) the extent of loss
or damage sustained by a person in consequence of the disclaimer.
108 General provisions relating to bank winding up
(1) A
bank liquidator may at any time apply to the Court for further
directions upon giving notice to all interested parties and, in
particular, a bank liquidator may apply to the Court for directions if the bank
liquidator finds himself or herself in a position of conflict in the course of
a bank winding up as between the interests of (in no particular order of
priority) –
(a) the creditors;
(b) the shareholders;
(c) the depositors;
(d) the investors in any
investment business activities, or the settlors or beneficiaries of any trust
company business activities, conducted by the bank or its subsidiaries;
(e) the States;
(f) the Depositors
Compensation Fund;
(g) the Commission;
(h) the Joint Financial
Crimes Unit of the States Police Force; or
(i) any other interested
parties.
(2) A bank winding up order
shall be delivered by the bank liquidator to the Registrar within 14 days
after it is made, and the Registrar shall record the bank winding up order in
the file of the bank so that it may be publicly accessible when he or she
receives it.
(3) Where a bank liquidator
fails to comply with the requirement to deliver a bank winding up order to the Registrar
within 14 days, the bank liquidator shall be guilty of an offence.
(4) In
circumstances where the objective specified in Article 99(1)(b) is applicable,
the bank winding up order shall provide guidance in relation to the extent of
the support that the liquidator must give to the transferee.
(5) The objective specified in Article 99(1)(b) shall cease to
apply where the Authority notifies the bank liquidator that the residual bank
is no longer required in connection with the sale of business tool or the
bridge bank tool.
(6) If the bank liquidator is of the view that the objective
specified in Article 99(1)(b) has ceased, the bank liquidator may apply to
Court for directions, and the Court may direct the Authority to notify the bank
liquidator that the residual bank is no longer required.
(7) A bank liquidator shall receive such
remuneration, and costs, charges and expenses properly incurred in a bank
winding up, as is agreed between the bank liquidator and the liquidation
committee or, failing agreement between the bank liquidator and the bank
liquidation committee, as is fixed by the Court.
(8) All
monies (including social security, pensions and redundancy payments) due and
payable to employees of the bank being wound up, in respect of services so
rendered after the commencement of the bank winding up order in accordance with
their respective contracts of employment as varied, with effect from the date
of the bank winding up order, shall be deemed to be expenses of the bank winding
up and shall be paid by the bank liquidator as it thinks fit.
109 Termination of office of
bank liquidator
(1) A bank liquidator
appointed by a bank winding up order shall remain in office until vacating
office –
(a) by resigning under paragraph (2);
(b) by
being removed by the Court under paragraph (3)(a) or by the creditors of
the bank under paragraph (4);
(c) on disqualification
under paragraph (5);
(d) on being replaced;
(e) on completing the final
dissolution of the bank under Article 141;
(f) if the bank liquidator
is unable by reason of illness or other reason to fulfil his or her duties
under this Law for more than 3 months; or
(g) on his or her death.
(2) A
bank liquidator may resign by giving one months’ notice to the Court.
(3) The applicant for the
bank winding up order, or the liquidation committee, may at any time apply to the
Court for, and the Court may at any time make an order –
(a) for
the removal of a bank liquidator (and, if appropriate, the appointment of
another bank liquidator); or
(b) if a vacancy occurs, by
death, resignation or otherwise, in the office of a liquidator, to fill the
vacancy.
(4) A
bank liquidator may be removed by resolution of the creditors if the following
conditions are met –
(a) the bank liquidation committee has passed a resolution under Article 101(15)(a);
(b) the notice given to the creditors of the meeting includes notice
of intention to move a resolution for the removal of one or more bank
liquidators; and
(c) the applicant for the bank winding up order and the bank
liquidation committee –
(i) receive notice of the meeting, and
(ii) are given an opportunity to make representations to it,
and a bank liquidator who
is so removed under this paragraph shall be released from his duties under this
Law with effect from the time at which the Court is informed of his or her
removal.
(5) A bank liquidator shall be deemed to have vacated his or her
office immediately if he or she ceases to be qualified to hold the office.
(6) A person who gives or agrees to give to any person any valuable
benefit with a view to securing his or her own appointment or nomination, or to
securing or preventing the appointment or nomination of some person other than
himself or herself, as the bank’s liquidator, shall be guilty of an offence and liable to imprisonment for a term of
2 years and to a fine.
110 Notification by bank liquidator of resignation etc.
(1) A bank liquidator who resigns, is removed or for any other
reason vacates office shall, within 14 days after the resignation, removal
or vacation of office give notice thereof, signed by the bank liquidator, to
the Registrar and the applicant for the bank winding up order.
(2) A bank liquidator who fails to comply with paragraph (1) shall
be guilty of an offence and liable to a fine.
111 Application of the law relating to désastre
Subject to this Law, in a
bank winding up the same rules prevail with regard to the time and manner of
proving debts, to the admission and rejection of proofs of debts and to setting
off debts as are in force for the time being with respect to persons against
whom a declaration has been made under the Bankruptcy (Désastre) (Jersey) Law 1990[48], with the substitution of references to the bank winding up for
references to the désastre and references to
the bank liquidator for references to the Viscount.
112 Bank liquidator to pay debts and adjust
rights of contributories
The bank liquidator shall
pay the bank’s debts and adjust the rights of the contributories among the
contributories.
113 Rescission of contracts by the Court
(1) On the application of a person who is, as against the bank
liquidator, entitled to the benefit or subject to the burden of a contract made
with the bank, the Court may make an order rescinding the contract on such
terms as to payment by or to either party of damages for the non-performance of
the contract, or otherwise as the Court thinks just.
(2) Any damages payable to a person under the order made under paragraph (1)
may be proved by the person as a debt in the bank winding up.
114 Transactions
at an undervalue
(1) If a bank has at a relevant time in accordance with paragraph (8)
entered into a transaction with a person at an undervalue, the Court may, on
the application of the bank liquidator in a bank winding up, make such an order
as the Court thinks fit for restoring the position to what it would have been
if the bank had not entered into the transaction.
(2) The Court shall not make an order under paragraph (1) if it
is satisfied –
(a) that the bank entered into the transaction in good faith for the
purpose of carrying on its business; and
(b) that, at the time it entered into the transaction, there were
reasonable grounds for believing that the transaction would be of benefit to
the bank.
(3) Without prejudice to the generality of paragraph (1) but subject
to paragraph (5), an order made under paragraph (1) may do all or any
of the following things, namely –
(a) require property transferred as part of the transaction to be
vested in the bank;
(b) require property to be so vested if it represents in a person’s
hands the application either of the proceeds of sale of property so transferred
or of money so transferred;
(c) release or discharge (in whole or in part) security given by the
bank;
(d) require a person to pay, in respect of a benefit received by him
or her from the bank, such sum to the bank as the Court directs;
(e) provide for a surety or guarantor, whose obligation to a person
was released or discharged (in whole or in part) under the transaction, to be
under such new or revived obligation to that person as the Court thinks
appropriate;
(f) provide –
(i) for security to be provided for the discharge of an obligation
imposed by or arising under the order,
(ii) for the obligation to be secured on any property, and
(iii) for the security to have the same priority
as the security released or discharged (in whole or in part) under the
transaction;
(g) provide for the extent to which a person –
(i) whose property is vested in the bank by the order, or
(ii) on whom an obligation is imposed by the order,
is to be able to prove in
the bank winding up for debts or other liabilities that arose from, or were
released or discharged (in whole or in part) under or by, the transaction.
(4) Except to the extent provided by paragraph (5), an order
made under paragraph (1) may affect the property of, or impose an
obligation on, any person, whether or not he or she is the person with whom the
bank entered into the transaction.
(5) An order made under paragraph (1) –
(a) shall not prejudice an interest in property that was acquired
from a person other than the bank and was acquired in good faith and for value,
or prejudice any interest deriving from such an interest; and
(b) shall not require a person who in good faith and for value
received a benefit from the transaction to pay a sum to the bank, except where
the person was a party to the transaction.
(6) In considering for the purposes of this Article whether a person
has acted in good faith, the Court may take into consideration –
(a) whether the person was aware –
(i) that the bank had entered into a transaction at an undervalue,
and
(ii) that the bank was insolvent or would, as a likely result of
entering into the transaction, become insolvent; and
(b) whether the person was an associate of or was connected with
either the bank or the person with whom the bank had entered into the
transaction.
(7) For the purposes of this Article, a bank enters into a
transaction with a person at an undervalue if –
(a) it makes a gift to that person;
(b) it enters into a transaction with that person –
(i) on terms for which there is no cause,
or
(ii) for a cause the value of which,
in money or money’s worth, is significantly less than the value, in money or
money’s worth, of the cause provided by the
bank.
(8) Subject to paragraphs (9) and (10), the time at which a
bank entered into a transaction at an undervalue is a relevant time for the
purpose of paragraph (1) if the transaction was entered into during the
period of 5 years immediately preceding the date of commencement of the bank
winding up order.
(9) The time to which paragraph (8) refers is not a relevant
time unless –
(a) the bank was insolvent when it entered into the transaction; or
(b) the bank became insolvent as a result of the transaction.
(10) If the transaction at an undervalue was entered into with a
person connected with the bank or with an associate of the bank, paragraph (9)
does not apply and the time to which paragraph (8) refers is a relevant
time unless it is proved that –
(a) the bank was not insolvent when it entered into the transaction;
and
(b) the bank did not become insolvent as a result of the
transaction.
115 Giving
of preferences
(1) If a bank has at a relevant time given a preference to a person,
the Court may, on the application of the bank liquidator in a bank winding up,
make such an order as the Court thinks fit for restoring the position to what
it would have been if the preference had not been given.
(2) Without prejudice to the generality of paragraph (1), but
subject to paragraph (4), an order made under paragraph (1) may do
all or any of the following things, namely –
(a) require property to be transferred in connection with the giving
of the preference to be vested in the bank;
(b) require property to be vested in the bank if it represents in
any person’s hands the application either of the proceeds of sale of property
so transferred or of money so transferred;
(c) release or discharge (in whole or in part) security given by the
bank;
(d) require a person to pay in respect of a benefit received by him
or her from the bank such sum to the bank as the Court directs;
(e) provide for a surety or guarantor, whose obligation to a person
was released or discharged (in whole or in part) by the giving of the
preference, to be under such new or revived obligation to that person as the
Court thinks appropriate;
(f) provide –
(i) for security to be provided for the discharge of any obligation
imposed by or arising under the order,
(ii) for such an obligation to be secured on any property, and
(iii) for the security to have the same priority
as the security released or discharged (in whole or in part) by the giving of
the preference;
(g) provide for the extent to which a person –
(i) whose property is vested by the order in the bank, or
(ii) on whom obligations are imposed by the order,
is to be able to prove in
the winding up of the bank for debts or other liabilities that arose from, or
were released or discharged (in whole or in part) under or by the giving of the
preference.
(3) Except as provided by paragraph (4), an order made under paragraph (1)
may affect the property of, or impose an obligation on, any person whether or
not he or she is the person to whom the preference was given.
(4) An order made under paragraph (1) shall not –
(a) prejudice an interest in property that was acquired from a
person other than the bank and was acquired in good faith and for value, or
prejudice any interest deriving from such an interest; or
(b) require a person who in good faith and for value received a
benefit from the preference to pay a sum to the bank, except where the payment
is in respect of a preference given to that person at a time when he or she was
a creditor of the bank.
(5) In considering for the purpose of this Article whether a person
has acted in good faith, the Court may take into consideration –
(a) whether the person had notice –
(i) of the circumstances that amounted to the giving of the
preference by the bank, and
(ii) of the fact that the bank was insolvent or would, as a likely
result of giving the preference, become insolvent; and
(b) whether the person was an associate of or was connected with
either the bank or the person to whom the bank gave the preference.
(6) For the purposes of this Article, a bank gives a preference to a
person if –
(a) the person is a creditor of the bank or a surety or guarantor
for a debt or other liability of the bank; and
(b) the bank –
(i) does anything, or
(ii) suffers anything to be done,
that has the effect of putting
the person into a position which, in the event of the winding up of the bank, would
be better than the position he or she would have been in if that thing had not
been done.
(7) The Court shall not make an order under this Article in respect
of a preference given to a person unless the bank, when giving the preference,
was influenced in deciding to give the preference by a desire to put the person
into a position which, in the event of the winding up of the bank, would be
better than the position in which the person would be if the preference had not
been given.
(8) A bank that gave a preference to a person who was, at the time
the preference was given, an associate of or connected with the bank (otherwise
than by reason only of being the bank’s employee) shall be presumed, unless the
contrary is shown, to have been influenced in deciding to give the preference
by the desire mentioned in paragraph (7).
(9) Subject to paragraphs (10) and (11), the time at which a
bank gives a preference is a relevant time for the purpose of paragraph (1)
if the preference was given during the period of 12 months immediately
preceding the commencement of the bank winding up order.
(10) The time to which paragraph (9) refers is not a relevant
time unless –
(a) the bank was insolvent at the time the preference was given; or
(b) the bank became insolvent as a result of giving the preference.
(11) If the preference was given to a person connected with the bank
or to an associate of the bank, paragraph (10) does not apply and the time
to which paragraph (9) refers is a relevant time unless it is proved that –
(a) the bank was not insolvent at the time the preference was given;
and
(b) the bank did not become insolvent as a result of the preference
being given.
116 Definitions
relating to transactions at an undervalue and preferences
(1) For the purposes of Articles 114 and 115, a person is
connected with a bank if –
(a) he or she is a director of the bank;
(b) he or she is an associate of a director of the bank; or
(c) he or she is an associate of the bank.
(2) For the purposes of Articles 114 and 115 and of this
Article –
(a) a person is an associate of an individual if that person is the
individual’s husband or wife or civil partner, or is a relative, or the husband
or wife or civil partner of a relative, of the individual or of the
individual’s husband or wife or civil partner;
(b) a person is an associate of any person with whom he or she is in
partnership, and of the husband or wife or civil partner or a relative of any
individual with whom he or she is in partnership;
(c) a person is an associate of any person whom he or she employs or
by whom he or she is employed;
(d) a person in his or her capacity as a trustee of a trust is an
associate of another person if –
(i) the beneficiaries of the trust include that other person or an
associate of that other person, or
(ii) the terms of the trust confer a power that may be exercised for
the benefit of that other person or an associate of that other person;
(e) a bank is an associate of another bank –
(i) if the same person has control of both banks, or a person has
control of one bank and either persons who are his or her associates, or he or
she and persons who are his or her associates, have control of the other bank,
or
(ii) if each bank is controlled by a group of 2 or more persons and
the groups either consist of the same persons or could be regarded as
consisting of the same persons by treating (in one or more cases) a member of
either group as replaced by a person of whom he or she is an associate;
(f) a bank is an associate of another person if that person has
control of the bank or if that person and persons who are his or her associates
together have control of the bank; and
(g) a provision that a person is an associate of another person
shall be taken to mean that they are associates of each other.
(3) For the purposes of this Article, a person is a relative of an
individual if he or she is that individual’s brother, sister, uncle, aunt,
nephew, niece, lineal ancestor or lineal descendant, for which purpose –
(a) any relationship of the half-blood shall be treated as a
relationship of the whole blood and the stepchild or adopted child of a person
as his or her child; and
(b) an illegitimate child shall be treated as the legitimate child
of his or her mother and reputed father.
(4) References in this Article to a husband or wife or civil partner
include a former husband or wife or civil partner and a reputed husband or wife
or civil partner.
(5) For the purposes of this Article, a director or other officer of
a bank shall be treated as employed by the bank.
(6) For the purposes of this Article, a person shall be taken as
having control of a bank if –
(a) the directors of the bank or of another person that has control
of it (or any of them) are accustomed to act in accordance with his or her
directions or instructions; or
(b) he or she is entitled –
(i) to exercise, or
(ii) to control the exercise of,
more than one third of the
voting power at any general meeting of the bank or of another person which has
control of it,
and where 2 or more persons
together satisfy either of the above conditions, they shall be taken as having
control of the bank.
117 Responsibility
of persons for wrongful trading
(1) Subject to paragraph (3), if in the course of a bank
winding up it appears that paragraph (2) applies in relation to a person
who is or has been a director of the bank, the Court on the application of the bank
liquidator may, if the Court thinks it proper to do so, order that that person shall
be personally responsible, without any limitation of liability, for all or any
of the debts or other liabilities of the bank arising after the time referred
to in paragraph (2).
(2) This paragraph applies in relation to a person if at a time
before the date of commencement of the bank winding up order that person as a
director of the bank –
(a) knew that there was no reasonable prospect that the bank would
avoid insolvency proceedings; or
(b) on the facts known to him or her was reckless as to whether the
bank would avoid such insolvency proceedings.
(3) The Court shall not make an order under paragraph (1) with
respect to a person if it is satisfied that after either condition specified in
paragraph (2) was first satisfied in relation to him or her the person
took reasonable steps with a view to minimising the potential loss to the
bank’s creditors.
(4) On the hearing of an application under this Article, the bank liquidator
may himself or herself give evidence or call witnesses.
118 Responsibility
for fraudulent trading
(1) If, in the course of a bank winding up, it appears that any
business of the bank has been carried on with intent to defraud creditors of
the bank or creditors of another person, or for a fraudulent purpose, the Court
may, on the application of the bank liquidator, order that persons who were
knowingly parties to the carrying on of the business in that manner are to be
liable to make such contributions to the bank’s assets as the Court thinks
proper.
(2) On the hearing of the application, the bank liquidator may
himself or herself give evidence or call witnesses.
(3) Where the Court makes an order under this Article or Article 117,
it may give such further directions as it thinks proper for giving effect to
the order.
(4) Where the Court makes an order under this Article or Article 117
in relation to a person who is a creditor of the bank, it may direct that the
whole or part of a debt owed by the bank to that person and any interest
thereon shall rank in priority after all other debts owed by the bank and after
any interest on those debts.
(5) This Article and Article 117 have effect whether or not that
the person concerned may be criminally liable in respect of matters on the
ground of which the order under paragraph (1) is to be made.
119 Extortionate
credit transactions
(1) This Article applies in a bank winding up where the bank is, or
has been, a party to a transaction for, or involving, the provision of credit
to the bank.
(2) The Court may, on the application of the bank liquidator, make
an order with respect to the transaction referred to in paragraph (1) if
the transaction –
(a) is or was extortionate; and
(b) was entered into in the period of 3 years ending with the
commencement of the bank winding up order.
(3) For the purposes of this Article, a transaction is extortionate
if, having regard to the risk accepted by the person providing the credit –
(a) the terms of it are such as to require grossly exorbitant
payments to be made (whether unconditionally or in certain contingencies) in
respect of the provision of the credit; or
(b) it otherwise grossly contravened ordinary principles of fair
dealing.
(4) It shall be presumed, unless the contrary is proved, that a
transaction with respect to which an application is made under this Article is
or, as the case may be, was extortionate.
(5) An order under this Article with respect to a transaction may
contain one or more of the following as the Court thinks fit –
(a) a provision setting aside the whole or part of an obligation
created by the transaction;
(b) a provision otherwise varying the terms of the transaction or
varying the terms on which a security for the purposes of the transaction is
held;
(c) a provision requiring a person who is or was a party to the
transaction to pay to the bank liquidator sums paid to that person, by virtue
of the transaction, by the bank;
(d) a provision requiring a person to surrender to the bank
liquidator property held by that person as security for the purposes of the
transaction;
(e) a provision directing accounts to be taken between any persons.
120 Delivery
and seizure of property
(1) Where a person has in his or her possession or control property
or records to which a bank appears in a bank winding up to be entitled, the bank
liquidator may require that person forthwith (or within a period which bank
liquidator may direct) to pay, deliver, convey, surrender or transfer the
property or records to the bank liquidator.
(2) Where –
(a) the bank liquidator seizes or disposes of property that is not
property of the bank; and
(b) at the time of seizure or disposal the bank liquidator has
reasonable grounds to believe, that he or she is entitled (whether in pursuance
of an order of the Court or otherwise) to seize or dispose of that property,
the bank liquidator –
(i) is not liable to any person in respect of loss or damage
resulting from the seizure or disposal except in so far as the loss or damage
is caused by the negligence of the bank liquidator, and
(ii) has a lien on the property, or the proceeds of its sale, for
expenses incurred in connection with the seizure or disposal.
121 Liability
in respect of purchase or redemption of shares
(1) This Article applies where a bank is being wound up in a bank winding
up and –
(a) it has within 12 months before the commencement of the
winding up made a payment under Article 55 or Article 57 of the
Companies (Jersey) Law 1991[49] in respect of the redemption or purchase of its own shares;
(b) the payment was not made lawfully; and
(c) the aggregate realisable value of the bank’s assets and the
amount paid by way of contribution to its assets (apart from this Article) is
not sufficient for the payment of its liabilities and the expenses of the bank winding
up.
(2) In this Article, the amount of a payment that has not been made
lawfully for the purpose of the redemption or purchase is referred to as the
“relevant payment”.
(3) Subject to paragraphs (5) and (6), the Court on the
application of the bank liquidator may order –
(a) a person from whom the shares were redeemed or purchased; or
(b) a director,
to contribute in accordance
with this Article to the bank’s assets so as to enable the insufficiency to be
met.
(4) A person from whom any shares were redeemed or purchased may be
ordered to contribute an amount not exceeding so much of the relevant payment
as was made in respect of his or her shares.
(5) A person from whom shares were redeemed or purchased shall not
be ordered to contribute under this Article unless the Court is satisfied that,
when he or she received payment for his or her shares –
(a) he or she knew; or
(b) he or she ought to have concluded from the facts known to him or
her,
that immediately after the
relevant payment was made the bank would be unable to discharge its liabilities
as they fell due, and that the realisable value of the bank’s assets would be
less than the aggregate of its liabilities.
(6) A director who has expressed an opinion under Article 55(9)
of the Companies (Jersey) Law 1991[50] may be ordered, jointly and severally with any other person who is
liable to contribute under this Article, to contribute an amount not exceeding
the relevant payment, unless the Court is satisfied that the director had
grounds for the opinion expressed.
(7) Where a person has contributed an amount under this Article, the
Court may direct any other person who is jointly and severally liable to
contribute under this Article to pay to him or her such amount as the Court
thinks just and reasonable.
(8) Article 131 does not apply in relation to liability
accruing by virtue of this Article.
122 Resolutions
passed at adjourned meetings
Any resolution passed at an
adjourned meeting of a bank’s creditors shall be treated for all purposes as
having been passed on the date on which it was in fact passed, and not as
having been passed on any earlier date.
123 Duty
to co-operate with bank liquidator
(1) In a bank winding up each of the persons mentioned in paragraph (2)
shall –
(a) give the bank liquidator information concerning the bank and its
promotion, formation, business, dealings, affairs or property which the bank
liquidator may, at any time after the commencement of the bank winding up
order, reasonably require;
(b) attend on the bank liquidator at reasonable times and on
reasonable notice when requested to do so; and
(c) notify the bank liquidator in writing of any change of his or
her address, employment, or name.
(2) The persons referred to in paragraph (1) are –
(a) those who are, or have at any time been, officers of the bank or
the secretary to the bank;
(b) those who have taken part in the formation of the bank at any
time within 12 months before the commencement of the bank winding up order;
(c) those who are in the employment of the bank, or have been in its
employment within those 12 months, and are in the bank liquidator’s opinion
capable of giving information which the bank liquidator requires; and
(d) those who are, or within those 12 months have been,
officers of, or in the employment of, a body corporate that is, or within those
12 months was, secretary to the bank and who are in the bank liquidator’s
opinion capable of giving information which the bank liquidator requires.
(3) For the purposes of paragraph (2) “employment” shall be
construed in accordance with the Employment (Jersey) Law 2003[51].
(4) A person who, without reasonable excuse, fails to comply with an
obligation imposed by paragraph (1), is guilty of an offence and shall be
liable to imprisonment for a term of 6 months and to a fine.
124 Bank
liquidator to report possible misconduct
(1) The bank liquidator shall take the action specified in paragraph (2)
if it appears to the bank liquidator in the course of a bank winding up –
(a) that the bank has committed a criminal offence;
(b) that a person has committed a criminal offence in relation to
the bank being wound up; or
(c) in the case of a director, that for any reason (whether in
relation to the bank being wound up, or to a holding bank of the bank being
wound up or to any subsidiary of such a holding bank) his or her conduct has
been such that an order should be sought against him or her under Article 78
of the Companies (Jersey) Law 1991[52].
(2) The bank liquidator shall –
(a) forthwith report the matter to the Attorney General; and
(b) furnish the Attorney General with information and give the Attorney
General access to, and facilities for inspecting and taking copies of,
documents (being information or documents in the possession or under the
control of the bank liquidator and relating to the matter) as the Attorney General
requires.
(3) Where a report is made to the Attorney General under paragraph (2),
the Attorney General may refer the matter to the Minister or the Commission for
further enquiry.
(4) Upon a matter being referred to the Minister or the Commission
under paragraph (3), the Minister or the Commission, as the case may be –
(a) shall investigate the matter; and
(b) for the purpose of the investigation may exercise any of the
powers that are exercisable by inspectors appointed under Article 128 of
the Companies (Jersey) Law 1991[53] to investigate a bank’s affairs.
(5) If it appears to the Court in the course of a bank winding up –
(a) that the bank has committed a criminal offence;
(b) that a person has committed a criminal offence in relation to
the bank being wound up; or
(c) in the case of a director of the bank being wound up, that for
any reason (whether in relation to the bank being wound up, or to a holding
bank of the bank being wound up or of any subsidiary of such a holding bank)
his or her conduct has been such as to raise a question whether an order should
be sought against him or her under Article 78 of the Companies (Jersey) Law 1991[54],
and that no report with
respect to the matter has been made by the bank liquidator to the Attorney General
under paragraph (2), the Court may (on the application of a person
interested in the winding up or of its own motion) direct the bank liquidator
to make such a report.
125 Obligations
arising under Article 124
(1) For the purpose of an investigation by the Minister or the
Commission under Article 124, an obligation imposed on a person by a
provision of the Companies (Jersey) Law 1991[55] to produce documents or give information to, or otherwise to
assist, inspectors appointed as mentioned in that Law is to be regarded as an
obligation similarly to assist the Minister in his or her, or the Commission in
its, investigation under Article 124.
(2) For the purposes of the investigation under
Article 124, the Minister or the Commission may examine on oath any such
person as is mentioned in paragraph (1), and may administer an oath
accordingly.
(3) An
answer given by a person to a question put to him or her in exercise of the
powers conferred by this Article may not be used in evidence against him or her
in any criminal proceedings except –
(a) proceedings
in which the person is charged with knowingly or recklessly making a false
statement in the course of being examined on oath under paragraph (2);
(b) proceedings
under Article 166; or
(c) proceedings
for contempt of court under Article 149(2).
(4) Where criminal proceedings are instituted by the Attorney General
following a report or reference under Article 124, the bank liquidator and
every officer, employee and agent of the bank past and present (other than the
defendant) shall give the Attorney General any assistance in connection with
the prosecution which he or she is reasonably able to give.
(5) In paragraph (4) “agent” includes a banker, advocate or solicitor
of the bank and a person employed by, or providing a service to, the bank as
auditor, whether or not that person is an officer of the bank.
(6) If a person fails to give assistance as required by paragraph (4),
the Court may, on the application of the Attorney General –
(a) direct the person to comply with that paragraph; and
(b) if the application is made with respect to a bank liquidator,
direct that the costs shall be borne by the bank liquidator personally unless
it appears that the failure to comply was due to the fact that the bank
liquidator did not have sufficient assets of the bank in his or her hands to
enable him or her to do so.
126 Distribution of bank’s property
(1) In a bank winding up
the order of priority for satisfaction of the liabilities of a bank shall be as
provided in Article 30.
(2) Unless the constitutional
documents of the bank otherwise provide, any remaining property of the bank shall
be distributed among the shareholders according to their rights and interests
in the bank.
(3) Despite the paragraphs (1) and (2),
if, in the course of a bank winding up the bank liquidator is satisfied that
the bank’s assets will be sufficient to ensure that –
(a) the costs, charges and
expenses properly incurred in the bank winding up and any other resolution
actions may be paid; and
(b) the claims of all
creditors (including any interest owing on debt) may be satisfied,
the
bank liquidator may, before or after meeting some or all of those costs,
charges and expenses and satisfying some or all of the claims of the creditors,
distribute to the members of the bank, proportional to their rights or
interests, or otherwise as provided by the bank’s constitutional documents, so
much of the bank’s assets as shall not be required to meet those costs,
charges, expenses and claims.
(4) The Court may fix a
time or times within which creditors of the bank are to prove their debts or
claims or to be excluded from the benefit of any distribution made before those
debts are proved.
127 Interest on debts
(1) In a bank winding up
interest shall be payable in accordance with this Article on any debt proved in
the bank winding up, including so much of any such debt as represents interest
on the remainder.
(2) Any surplus remaining
after the payment of the debts proved in the bank winding up shall, before
being applied for any other purpose, be applied in paying interest on those
debts in respect of the periods during which they have been outstanding since
the commencement of the bank winding up order in respect of the bank.
(3) All interest payable under
this Article shall rank equally, whether or not the debts on which it is
payable rank equally.
(4) The interest payable
under this Article in respect of any debt shall be whichever is the greater of –
(a) the interest calculated
in accordance with the Interest on Debts and Damages (Jersey) Law 1996[56]; and
(b) the interest calculated
in accordance with the rate applicable to that debt apart from the bank winding
up.
128 Enforcement of liquidator’s duty to make
returns, etc.
(1) If, in a bank winding up,
the bank liquidator defaults in delivering a document or in giving any notice
which the bank liquidator is by law required to deliver or give, and the
defaulting bank liquidator fails to make good the default within 14 days
after the service on the bank liquidator of a notice requiring the bank
liquidator to do so, paragraphs (2), (3) and (4) shall apply.
(2) On an application made
by a creditor or contributory of the bank, or by the Registrar, the Court may make
an order directing the bank liquidator to make good the default within the time
specified in the order.
(3) The Court’s order may
provide that costs of an application made under paragraph (2) and costs incidental
to the application shall be borne, in whole or in part, by the bank liquidator
personally.
(4) Nothing in this Article
shall prejudice the operation of any enactment imposing penalties on a bank liquidator
in respect of a default mentioned in such an enactment.
129 References to the Court
(1) A bank liquidator may apply
to the Court for a determination of any question arising in a bank winding up,
or for the Court to exercise any of its powers in relation to a bank winding
up.
(2) The Court, if satisfied
that it will be just and beneficial to do so, may accede wholly or partially to
an application under paragraph (1) on such terms and conditions as it
thinks fit, or make such other order on the application as it thinks just.
(3) The Court may exercise
all or any of the powers that would have been exercisable by it or by the
Viscount if a declaration had been made in relation to a company under the Bankruptcy
(Désastre) (Jersey) Law 1990[57].
130 Notification that the bank
is in liquidation
(1) Every invoice, order
for goods or services or communication issued by or on behalf of a bank that is
being wound up, or by the bank liquidator, being a document on or in which the
name of the bank appears, shall contain a statement that the bank is in liquidation.
(2) In the event of failure
to comply with paragraph (1), the bank, a person acting by or on behalf of
the bank or the bank liquidator shall be guilty of an offence and liable to a
fine.
131 Liability as contributories of present and
past members
(1) Except as otherwise provided by this
Article, where a bank is wound up, each present and past member of the bank is
liable to contribute to its assets to an amount sufficient for payment of its
liabilities, the expenses of the winding up, and for the adjustment of the
rights of the contributories among themselves.
(2) A past member of a bank
of a particular class is not, as a member of that class, liable to contribute –
(a) unless it appears to the Court that the
present members of that class are unable to satisfy the contributions required
to be made by them as such members;
(b) if he or she ceased to be a member of that
class for 12 months or more before the commencement of the winding up; or
(c) in respect of a liability of the bank contracted
after he or she ceased to be a member of that class.
(3) A past or present
guarantor member of a bank is not liable in that capacity to contribute unless
it appears to the Court that the past and present members in their capacity as
the holders of limited shares are unable to satisfy the contributions required
to be made by them as such members.
(4) A past or present
member of a bank in his or her capacity as the holder of an unlimited share is
not liable to contribute unless it appears to the Court that the past and
present members in their capacities as the holders of limited shares or as
guarantor members are unable to satisfy the contributions required to be made
by them as such members.
(5) A contribution shall
not be required from a past or present member of a bank, as such a member,
exceeding –
(a) any amount unpaid on
any limited shares in respect of which he or he is liable; or
(b) the amount undertaken
to be contributed by him or her to the assets of the bank if it were to be
wound up.
(6) A sum due to a member
of the bank, in his or her capacity as a member, by way of dividends, profits
or otherwise is not in a case of competition between himself or herself and any
other creditor who is not a member of the bank, a liability of the bank payable
to that member, but any such sum may be taken into account for the purpose of
the final adjustment of the rights of the contributors among themselves.
(7) In this Article
“member” shall be construed in accordance with Article 25 of the Companies
(Jersey) Law 1991[58].
132 Retention and disposal of records
(1) When a bank has been wound up and dissolved, its records and
those of a bank liquidator and bank liquidation committee shall be retained by
the bank, bank liquidator or bank liquidation committee or a person to whom the
records have been committed for a period of at least 10 years after the
bank’s dissolution.
(2) After 10 years from the bank’s dissolution no
responsibility rests on the bank, a bank liquidator, the bank liquidation
committee or a person to whom the custody of the records has been committed, by
reason of any record not being forthcoming to a person claiming to be
interested in it.
(3) A person who contravenes paragraph (1) shall be guilty of
an offence and liable to a fine of level 3 on the standard scale.
133 Disclosure of information by bank liquidator
(1) A bank liquidator may
only use information relating to the bank being wound up, its customers and its
creditors for the purpose of achieving the objectives specified in Article 99(1)
and, in the pursuit of those objectives, the bank liquidator may disclose such
information to a person or entity as appropriate, including a purchaser or
potential purchaser of all or part of the business of the bank, the Minister,
the Commission, the Jersey Bank Depositors Compensation Board, professional
advisers, and as otherwise may be permitted by the Data Protection (Jersey) Law 2005[59].
(2) A bank liquidator shall
seek the approval of the bank liquidation committee to disclose information
referred to in paragraph (1) for any purpose other than a purpose referred
to in paragraph (1), unless the disclosure of such information is
routinely required to facilitate the ongoing conduct of business and the provision
of services to depositors.
134 Inspection of bank’s books
etc. by court order
(1) The Court may at any
time after making a bank winding up order, make such order for inspection of
the bank’s books and papers by creditors and contributories as the Court thinks
just and any books and papers in the bank’s possession shall thereby be made
available for inspection by creditors and contributories accordingly, but not
further or otherwise.
(2) Nothing in this Article
shall exclude or restrict any statutory rights of a Minister or a public authority
in Jersey or any person acting under such authority.
135 Bank’s books to be evidence
Where a bank is being wound up, all books and papers of the bank and
of the bank liquidator are treated, as between the contributories of the bank, as
prima facie evidence of the truth of all matters purporting to be recorded in
them.
136 Information as to pending liquidations
(1) If
a bank winding up is not concluded within one year after its commencement, the
bank liquidator shall, at such intervals as may be specified by the Court,
until the bank winding up is concluded, send to the Registrar a progress report
with respect to the position of the bank winding up, and the Registrar shall record
such progress reports in the register.
(2) A bank liquidator who fails to comply with paragraph (1)
shall guilty of an offence and liable to a fine of level 3 on the standard
scale.
137 Meetings to ascertain
wishes of creditors or contributories
Subject to the objectives specified in Article 99(1)(a), as to
all matters relating to a bank winding up, the Court shall have regard to the
wishes of the creditors or contributories (as proved to it by any sufficient
evidence), and –
(a) if it thinks fit, for
the purpose of ascertaining those wishes, direct meetings of the creditors or
contributories to be called, held and conducted in such manner as the Court
directs, and appoint a person to act as chairman of any such meeting and report
the result of it to the Court;
(b) in the case of
creditors, have regard to the value of each creditor’s debt; and
(c) in the case of
contributories, have regard the number of votes conferred on each contributory.
138 Power of bank liquidator to
act in respect of subsidiary
Where the bank liquidator exercises his or her power to act in
respect of a subsidiary of a bank being wound up which is, by virtue of the
insolvency of the bank being wound up, also insolvent, all of the provisions of
this Part shall also apply to that subsidiary.
139 Order for Jersey insolvency
law to apply
The Minister may by Order provide for any rule of law relating to
insolvency to be applied to a bank winding up.
140 Termination of bank winding up
(1) The bank liquidator may, with the authorization of the
shareholders of the bank by special resolution, apply to the Court for an order
terminating the bank winding up order if the bank liquidator is satisfied that
the grounds for the application under Article 90 are no longer met.
(2) The Authority, the Commission, the Minister and the Viscount and
upon notice to the court, other interested parties, shall have a right to be
heard (or to make representations) at the proceedings for the termination of
the bank winding up order.
(3) The Court shall in determining an application for the
termination of bank winding up order have regard to such matters as it thinks
fit including –
(a) whether or not –
(i) the bank has received any contribution from any present or past
member pursuant to Article 131, or
(ii) the bank has, for the purposes of the bank
winding up, distributed any of its assets among its shareholders; and
(b) the views of the Authority, the Commission and the Minister.
(4) The Court shall refuse the application
unless it is satisfied that –
(a) the bank is able to discharge its liabilities in full as they
fall due;
(b) the termination of the bank winding up order is in the public
interest;
(c) the termination of the
bank winding up order has been approved by the bank liquidation committee; and
(d) the applicant for the
bank winding up order approves of the termination of the bank winding up order.
(5) Subject to paragraph (4),
the Court may make an order granting or refusing the termination of the bank
winding up order and may make such other order as the Court thinks fit.
(6) Upon the termination of
a bank winding up order any bank liquidator appointed for the purpose of the
bank winding up shall cease to hold that office.
(7) The termination of a bank
winding up order shall not affect the validity of anything done by any bank
liquidator, director or other person, or by operation of law, before its
termination.
141 Final dissolution
(1) As soon as the affairs
of a bank are fully wound up, the bank liquidator shall make up an account and
final report of the bank winding up, showing how it has been conducted and how
the bank’s property has been disposed of.
(2) The bank liquidator
shall send a copy of the report under paragraph (1) to –
(a) the bank liquidation
committee;
(b) the Authority;
(c) the Commission;
(d) the Minister;
(e) the Viscount; and
(f) the Jersey Bank Depositors
Compensation Board,
and a copy of the report shall be made available to members,
creditors and contributories on request.
(3) The bank liquidator
shall upon sending a copy of the report to the bank liquidation committee under
paragraph (2), summon a final meeting of the bank liquidation committee.
(4) At the final meeting under
paragraph (3), the bank liquidation committee shall –
(a) consider the report;
and
(b) decide whether to
approve its contents.
(5) If the bank liquidation
committee approves the report under paragraph (4), the bank liquidator shall
forthwith apply to the Court for an order for the dissolution of the bank.
(6) If the bank liquidation
committee does not approve the report under paragraph (4), the bank
liquidator shall address the concerns of the bank liquidation committee and
submit the report to the bank liquidation committee again but, if the report is
again not approved, the bank liquidator may, despite such disapproval, apply to
the Court for an order for approval of the report, and for dissolution of the
bank.
(7) The bank liquidator
shall give the creditors of the bank not less than 21 days’ notice of the
Court hearing of the application for dissolution under paragraph (5), or
approval and dissolution under paragraph (6), accompanied by a copy of the
bank liquidator’s report.
(8) Within 7 days
after the making of an order by the Court in respect of an application made
under paragraph (5) or (6), the bank liquidator shall deliver to the Registrar
the relevant Act of Court for registration.
(9) If the bank liquidator
fails to comply with paragraph (7) the bank liquidator shall be guilty of
an offence and liable to a fine.
(10) The Registrar, on
receiving the order under paragraph (8), shall register the order in the
file of the bank so that it may be publicly accessible.
(11) At the end of the
period of 3 months beginning with the day of registration of the order,
the bank shall be dissolved and shall cease to exist.
(12) Upon the dissolution of
a bank under this Article, any bank liquidator appointed for the purpose of the
bank winding up shall cease to hold that office.
(13) The dissolution of a
bank under this Article shall not affect the validity of anything duly done by
any bank liquidator, director or other person, or by operation of law, before
its dissolution.
142 Assistance for foreign authorities in
insolvency matters
(1) The Court may, to the
extent that it thinks fit, assist a court, resolution authority, bank regulator
or bank liquidator of a relevant foreign jurisdiction, in matters relating to
insolvency.
(2) For the purposes of paragraph (1),
a request from a court of a relevant foreign jurisdiction for assistance shall
be sufficient authority for the court to exercise, in relation to the matters
to which the request relates, any jurisdiction which it or the requesting court
could exercise in relation to these matters if they otherwise fell within its
jurisdiction.
(3) In exercising its
discretion for the purposes of this Article the Court shall have regard in
particular to the rules of private international law.
(4) In granting assistance
under this Article, the Court shall have regard to the general principles of
resolution, the resolution objectives, the objectives specified in Article 99
and any other principles under this Law.
(5) In this this Article
“relevant foreign jurisdiction” means –
(a) the home jurisdiction
and relevant jurisdiction of a foreign bank; and
(b) such other country or
territory as may be prescribed.
PART 8
INVESTIGATIONS
143 Appointment of inspectors
(1) The
Authority may appoint one or more competent persons to investigate the affairs
of a bank and to report on the bank as the Authority may direct.
(2) This
Article applies whether or not the bank is in resolution or being wound up.
144 Powers of inspector
(1) If an
inspector thinks it is necessary for the purposes of his or her investigation
to investigate also the affairs of another entity which is or at any relevant
time has been the bank’s subsidiary or holding company, or a subsidiary of its
holding company or a holding company of its subsidiary, the inspector shall
have the power to do so, and the inspector shall also report on the affairs of
the other entity so far as the inspector thinks that the results of
investigation of its affairs are relevant to the investigation of the affairs
of the bank.
(2) An inspector
may, at any time in the course of his or her investigation, without the
necessity of making an interim report, inform the Authority and the Attorney General
of matters coming to the inspector’s knowledge as a result of the investigation
tending to show that an offence has been committed.
145 Production of records and
evidence to inspector
(1) If an inspector considers
that any person is or may be in possession of information relating to a matter
which the inspector believes to be relevant to the investigation, the inspector
may require the person –
(a) to
produce and make available to the inspector all records in the person’s custody
or power relating to that matter;
(b) at
reasonable times and on reasonable notice, to attend before the inspector; and
(c) otherwise
to give the inspector all assistance in connection with the investigation which
the person is reasonably able to give,
and it is that person’s duty to comply
with the requirement.
(2) An inspector
may for the purposes of the investigation examine on oath any such person as is
mentioned in paragraph (1), and may administer an oath accordingly.
(3) Despite
any other provision in this or any other enactment to the contrary, an answer given by a person to a question put to him or her in exercise
of the powers conferred by this Article may not be used in evidence against him
or her in any criminal proceedings except –
(a) proceedings
for contempt of court under Article 149(2); or
(b) proceedings under Article 166.
146 Power
of inspector to call for directors’ bank accounts
If an inspector has reasonable grounds for believing that a
director, or past director, of the bank or other person whose affairs the
inspector is investigating maintains or has maintained a bank account –
(a) of any description,
whether alone or jointly with another person and whether in Jersey or elsewhere;
and
(b) into or out of which
there has been paid money which has been in any way connected with an act or
omission, or series of acts or omissions, which constitutes misconduct (whether
fraudulent or not) on the part of that director towards the bank or other
person or its members,
the inspector may require the director to produce and make available
to the inspector all records in the director’s possession or under the
director’s control relating to that bank account.
147 Authority for search
(1) An inspector
may, for the purpose of an investigation into the affairs of a bank, apply to
the Bailiff for a warrant under this Article in relation to premises specified
in the application.
(2) If
the Bailiff is satisfied that the conditions in paragraph (3) are
fulfilled the Bailiff may issue a warrant authorizing a police officer and any
other person named in the warrant to enter the premises specified in the
warrant (using such force as is reasonably necessary for the purpose) and to
search those premises.
(3) The
conditions referred to in paragraph (2) are –
(a) that
there are reasonable grounds for suspecting that there is on the premises
material (whether or not it can be particularized) which is likely to be of
substantial value (whether by itself or together with other material) to the
investigation for the purpose of which the application is made; and
(b) that
the investigation for the purpose of which the application is made might be
seriously prejudiced unless immediate entry can be secured to the premises.
(4) Where
a person has entered premises in the execution of a warrant issued under paragraph (2),
the person may seize and retain any material, other than items subject to legal
professional privilege, which is likely to be of substantial value (whether by
itself or together with other material) to the investigation for the purpose of
which the warrant was issued.
(5) In
this Article, “premises” includes any place, and in particular includes –
(a) any
vehicle, vessel, aircraft or hovercraft;
(b) any
offshore installation; and
(c) any
tent or movable structure.
148 Obstruction
Any person who wilfully obstructs any
person acting in the execution of a warrant issued under Article 147 shall
be guilty of an offence and liable to imprisonment for a term of 2 years and
to a fine.
149 Failure
to co-operate with inspectors
(1) If
any person –
(a) fails
to comply with a requirement under Article 145 or 146; or
(b) refuses
to answer any question put to the person by an inspector for the purpose of the
investigation,
the inspector may certify the refusal in writing to the Court.
(2) The
Court may, upon a refusal being certified under paragraph (1), inquire
into the case and, after hearing any witness who may be produced against or on
behalf of the alleged offender and any statement in defence, punish the
offender as if the offender had been guilty of contempt of the Court and order
him or her to comply.
150 Inspector’s reports
(1) An
inspector may, and if so directed by the Authority shall –
(a) make
interim reports; and
(b) on
conclusion of his or her investigation make a final report,
to the Authority as the case may be.
(2) The Authority
may –
(a) forward
a copy of any report made by an inspector in relation to a bank to the bank’s
registered office;
(b) furnish
a copy of the report on request and on payment of the prescribed or published
fee to –
(i) any member of the bank which is the
subject of the report,
(ii) any person whose conduct is referred to in
the report,
(iii) the auditors of the bank which is the
subject of the report,
(iv) the applicant for the investigation,
(v) a relevant resolution authority, or
(vi) any person whose financial interests appear
to the Minister or the Commission to be affected by the matters dealt with in
the report, whether as a creditor of the company or as a body corporate, or
otherwise; and
(c) cause
the report to be printed and published in such form and in such manner as it considers appropriate.
(3) In
this Article, “relevant resolution authority” means an authority discharging in
a country or territory outside Jersey any function that is the same as, or
similar to, a function of the Authority.
151 Expenses
of investigating a bank’s affairs
The expenses of and incidental to an
investigation by an inspector shall be defrayed in the first instance by the
Authority, but the bank shall be liable to make repayment to the Authority.
152 Inspectors’ report to be
evidence
(1) A
copy of a report of an inspector certified by the Authority to be a true copy,
is admissible in legal proceedings as evidence of the opinion of the inspector
in relation to a matter contained in the report.
(2) A
document purporting to be a certificate mentioned in paragraph (1) shall
be received in evidence and be deemed to be such a certificate unless the
contrary is proved.
153 Privileged
information
Nothing in this Part requires the
disclosure or production, to the Authority or to an inspector, by a person of
information or records which the person would in an action in the Court be
entitled to refuse to disclose or produce on the grounds of legal professional
privilege in proceedings in the Court except, if the person is a lawyer, the
name and address of his or her client.
PART 9
RESTRICTION ON DISCLOSURE OF INFORMATION
154 Restricted
information
(1) Except
as provided by Article 133, Part 8 and the subsequent provisions of
this Part, a person who –
(a) under this Law receives
information relating to the business or other affairs of any person; or
(b) obtains any such
information directly or indirectly from a person who has received it under sub-paragraph (a),
shall
not disclose the information without the consent of the person to whom it
relates and (if different) the person from whom it was received.
(2) This
Article shall not apply to information which at the time of the disclosure is
or has already been made available to the public from other sources or to
information in the form of a summary or collection of information so framed as
not to enable information relating to any particular person to be ascertained
from it.
(3) A
person who discloses information in contravention of this Article shall be
guilty of an offence and liable to imprisonment for a term of 2 years and
to a fine.
155 Disclosure
for facilitating discharge of functions of the
Authority and
specified persons
(1) Article 154
does not preclude the disclosure of information by or to any person in any case
in which such disclosure is for the purpose of enabling or assisting any of the
following –
(a) the Authority, or any person acting on their
behalf;
(b) a person appointed under an enactment by any of the
following –
(i) the
Authority,
(ii) the
Court, on the application of the Authority,
(iii) a
Minister, where that Minister and the Authority are each specified in that
enactment as having power to appoint that person,
to discharge the
Authority’s functions or that person’s functions under this Law or under any
other enactment.
(2) Article 154
does not preclude the disclosure of information by the Authority to the auditor
of –
(a) a bank;
(b) a former bank; or
(c) a person who appears to the Authority
to be acting
or to have acted in contravention of Article 8 of the 1991 Law,
if it appears to the Authority that disclosing the information would
be in the interests of depositors or potential depositors.
(3) Subject to paragraphs (4) to (6),
Article 154 does not preclude the disclosure of information by the Authority
to any of the following organizations or bodies –
(a) the
ESAs;
(b) ERSB;
or
(c) a
supervisor of a securities market.
(4) The Authority
shall not disclose information under paragraph (3) unless satisfied that –
(a) the purpose of the disclosure is to assist
the relevant organization or person to whom it is disclosed, in the exercise of
any of its functions; and
(b) that organization or person will treat the
disclosed information with appropriate confidentiality.
(5) In
deciding whether to disclose information under paragraph (3), the
Authority may take the following factors (among others) into account –
(a) whether corresponding disclosure of information would be
given by the relevant organization or person, if such information were
requested by the Authority;
(b) whether the case concerns the possible breach of a law,
or other requirement, which has no close parallel in Jersey;
(c) the seriousness of the case and its importance in Jersey;
(d) whether the information could be obtained by other means;
and
(e) whether it is otherwise appropriate in the public
interest to disclose the information.
(6) The Authority
may refuse to disclose information under paragraph (3) unless the relevant
organization or person undertakes to make such contribution towards the costs
of the disclosure as the Authority considers appropriate.
(7) In paragraph (3) “ESAs” and “ESRB”
have the meaning given by Article 1 of the 1991 Law.
156 Disclosure
for facilitating discharge of functions by other authorities
(1) Article 154
does not preclude the disclosure of information by the Authority to –
(a) the
Commission;
(b) the
Viscount;
(c) the
Minister;
(d) the
Comptroller and Auditor General for the purpose of enabling or assisting the
carrying out of any of the Comptroller and Auditor General’s functions in
relation to the Authority; or
(e) any
person for the purpose of enabling or assisting that person to exercise that
person’s statutory functions in relation to any person or class of person in
respect of whom the Authority has or had statutory functions.
(2) In paragraph (1)(e), “statutory
functions” means functions conferred by or under an enactment on any person
including any ancillary functions related thereto, for such purposes as may be
prescribed or specified (as the case may be) under that enactment.
(3) Article 154
does not preclude the disclosure of information for the purpose of enabling or
assisting a resolution authority to exercise any of its functions.
(4) Without
prejudice to the generality of paragraph (1)(e), Article 154 does not
preclude the disclosure of information by the Authority to the Office of the
Financial Services Ombudsman or to an Ombudsman, within the meaning of the
Financial Services Ombudsman (Jersey) Law 2014[60] for the purpose of enabling or assisting that
Office or Ombudsman to exercise any function under that Law.
157 Other permitted disclosures
(1) Article 154
does not preclude the disclosure of information –
(a) with a view to the
investigation of a suspected offence or the institution of, or otherwise for
the purposes of, any criminal proceedings, whether under this Law or not; or
(b) in connection with any
other proceedings arising out of this Law.
(2) Article 154
does not preclude the disclosure by the Authority to the Attorney General or to
a police officer of –
(a) information obtained by
virtue of Article 155 or 156; or
(b) information in the
possession of the Authority as to any matter in relation to which the powers
conferred by Article 155 or 156 are
exercisable.
(3) Information
disclosed under paragraph (2) may only be disclosed by the Attorney General
or a police officer for the purposes of an investigation into a suspected
offence in Jersey or a prosecution in Jersey or, at the discretion of the
Attorney General, a suspected offence or prosecution in a country or territory
outside Jersey.
(4) Article 154
does not preclude the disclosure of information by the Authority to any person
responsible for a compensation scheme in relation to one or more deposit-taking
businesses (whether in Jersey or in a country or territory outside Jersey) if –
(a) it
appears to the Authority that disclosing the information would enable or assist
the recipient of the information or the Authority to discharge its functions;
and
(b) the
recipient of the information gives to the Authority prior to disclosure a
written undertaking that the information will not be further disclosed without
the prior consent of the Authority.
(5) Article 154
does not preclude the disclosure of information by the Authority to any person
acting on behalf of an international body or organization where that body’s or
organization’s functions include the assessment of Jersey’s compliance with
international standards relating to regulation of the financial sector and the
disclosure is for the purpose of enabling or assisting that body or
organization to discharge those functions.
(6) Article 154
does not preclude the disclosure of information by –
(a) the
Authority;
(b) a
person appointed under an enactment by any of the following –
(i) the
Authority,
(ii) the
Court, on the application of the Authority,
(iii) a
Minister, where that Minister and the Authority are each specified in that
enactment as having power to appoint that person,
to any person or body responsible for
setting standards of conduct for any profession where that person or body has
powers to discipline persons who fail to meet those standards if it appears to
the Authority or the appointed person that disclosing the information would
enable or assist the person or body responsible for setting standards to
discharge its functions in relation to a person who fails, or is alleged to
have failed, to meet those standards.
(7) No information shall be
disclosed under or by virtue of paragraph (5) or (6) or Article 155(1)(a)
or (3), Article 156(1)(b), (c) or (d) or (2) or Article 160 unless
the Authority or person, as the case requires, making the disclosure (‘the
disclosing party’) is satisfied that the person or body to whom or which the
disclosure is made complies with or will comply with any conditions to which
the disclosing party may, in its discretion, subject such disclosure.
158 Regulation making power to amend disclosure
provisions
The States may by Regulations amend Articles 155,
156 or 157 by –
(a) adding further persons
or bodies to or by whom disclosure may be made and specifying in each case the
purpose for which disclosure of information may be made; and
(b) amending the
circumstances in which disclosure may be made to or by any person or body
specified in those Articles, including the purposes for which and conditions in
which such disclosure may be made.
159 Information supplied to the Authority by resolution
authority
Articles 154 to 157 apply
also to information supplied to the Authority for the purposes of its functions
under this Law by a resolution authority in the
jurisdiction in which a bank operates branches or subsidiaries.
160 Co-operation
with resolution authority
The Authority shall, if it considers it appropriate
to do so, negotiate over and enter into binding and non-binding framework
co-operation agreements with a resolution authority in another jurisdiction in
which a bank’s group conducts business, whether through separate entities,
subsidiaries or branches in such other jurisdiction or through subsidiaries or
branches in Jersey of an entity incorporated in such other jurisdiction.
161 Public statement
(1) The Authority
may issue a public statement concerning a bank if it appears to the Authority to
be desirable to issue the statement in the best interests of persons who have
transacted or may transact deposit-taking business with the bank or in the best
interests of the public.
(2) If
the Authority proposes to issue a public statement under paragraph (1),
the Authority shall, subject to paragraphs (3) and Article 162, serve
notice on the bank.
(3) A
notice under paragraph (2) shall –
(a) give
the reasons for issuing the statement;
(b) give
the proposed date of issue of the statement;
(c) contain
a copy of the statement;
(d) give
particulars of the right of appeal under Article 163 in respect of the
statement; and
(e) if the statement is
issued, in accordance with a decision under Article 162(3), before the day
specified in Article 162(1) in relation to the statement, give the reasons
for issuing it before that day.
(4) Paragraph (3)
shall not require the Authority –
(a) to
specify any reason that would in the Authority’s opinion involve the disclosure
of confidential information the disclosure of which would be prejudicial to a
third party; or
(b) to
specify the same reasons, or reasons in the same manner, in the case of notices
to different persons about the same matter.
162 Notice period
(1) The Authority
shall not issue a public statement under Article 161 before the expiration
of 14 days following the date of the service of the notice under Article 161(2).
(2) Paragraph (1)
shall not apply if the bank in the public statement agrees with the Authority that
the statement may be issued on a date earlier than the date that would apply
under that paragraph and the statement is in fact issued on or after the
earlier date.
(3) Paragraph (1)
shall not apply if –
(a) the
Authority decides on reasonable grounds that the interests of –
(i) persons
who have transacted or may transact deposit-taking business with the bank, or
(ii) the
public,
in the issue of the public statement on a
date earlier than the date that would apply under that paragraph outweighs the
detriment to the persons identified in the public statement, being the
detriment attributable to the issue of the public statement on the earlier date;
and
(b) the
public statement is in fact issued on or after the earlier date.
(4) In
making a decision under paragraph (3), the Authority is not prevented from
choosing as the date of issue of a public statement the date of service (if
any) of notice of the public statement.
(5) If an
appeal is made to the Court under Article 163(1), and the Court orders
that the public statement shall not be issued before any specified date or
event, the Authority shall not issue the public statement before the date or
event so specified.
(6) In a
case to which paragraph (1) applies, if an appeal is made under Article 163
to the Court against a decision to issue a public statement, the Authority shall
not issue the public statement before the day on which that appeal is
determined by the Court or withdrawn.
163 Appeals and orders about public statements
(1) A person aggrieved by a
decision of the Authority –
(a) to issue a public
statement under Article 161; or
(b) under Article 162(3),
may appeal to the Court, in accordance with this Article, against
the decision.
(2) An appeal under paragraph (1)(a)
may be made only on the ground that the decision of the Authority was
unreasonable having regard to all the circumstances of the case.
(3) An appeal under this
Article shall be lodged with the Court no later than –
(a) if notice is served on
the bank under Article 161(2) in relation to the public statement, the day
that is one month after the date of the last such service on the bank in
relation to the public statement; or
(b) if no such notice is
served on the bank, the day that is one month after the issue of the public
statement.
(4) Nothing
in paragraph (3) prevents the lodging of an appeal before a notice is
served or a public statement is issued.
(5) On an
appeal under this Article, the Court may make such interim or final order as it
thinks fit, including an order that the Authority shall not issue the public
statement or, if the public statement has been issued, that the Authority shall
issue a further public statement to the effect set out in the order or shall stop
making the statement available to the public.
PART 10
MISCELLANEOUS
164 References to the Court
(1) The Authority
may apply to the Court for the determination of a question arising in relation
to the taking of a resolution action.
(2) The
Court, if satisfied that it will be just and beneficial to do so, may accede
wholly or partially to the application on such terms and conditions as it
thinks fit, or make such other order on the application as it thinks just.
(3) An
order made under paragraph (2) may specify that the Authority may apply a
resolution tool, exercise a resolution power or take a resolution action
specified in the Order.
165 Service of notices
(1) No notice or other
document required or authorized by this Law to be given to the Authority shall
be regarded as so given until it is received.
(2) Subject to paragraph (1),
any notice or other document required or authorized by or under these
Regulations to be given to the Authority may be given by facsimile, electronic
transmission or by any similar means that produces a document containing the
text of the communication in legible form or is capable of doing so.
(3) Any notice, direction
or other document required or authorized by or under this Law to be given to or
served on any person other than the Authority may be given or served on the
person –
(a) by delivering it to the
person;
(b) by leaving it at the
person’s proper address;
(c) by sending it by post
to the person at that address; or
(d) by sending it to the
person at that address by facsimile, electronic transmission or other similar
means that produce a document containing the text of the communication in
legible form or is capable of doing so.
(4) Any
such notice, direction or other document may –
(a) in the case of a company incorporated in
Jersey, be served by being delivered to its registered office or principal
office; or
(b) in the case of a partnership, company
incorporated outside Jersey or unincorporated association, be given to or
served on a person who is a principal person in relation to it, or on the
secretary or other similar officer of the partnership, company or association
or any person who purports to act in any such capacity, by whatever name
called, or on the person having the control or management of the partnership
business, as the case may be, or by being served on the latter person or
delivered to the latter person’s registered office or principal office.
(5) For
the purposes of this Article and of Article 7 of the Interpretation
(Jersey) Law 1954[61] in
its application to this Article, the proper address of any person to or on whom
a notice, direction or other document is to be given or served by post shall be
the person’s last known address, except that –
(a) in the case of a company incorporated in
Jersey, or its secretary, clerk or other similar officer or person, it shall be
the address of the registered office or principal office of the company in
Jersey; or
(b) in the case of a partnership, or a person
who is a principal person in relation to a partnership, it shall be that of its
principal office in Jersey.
(6) If
the person to or on whom any notice, direction or other document referred to in
paragraph (3) is to be given or served has notified the Authority of an
address within Jersey, other than the person’s proper address within the
meaning of paragraph (5), as the one at which the person or someone on the
person’s behalf will accept service of documents of the same description as
that notice, direction or other document, that address is for the purposes of
this Article and Article 7 of the Interpretation (Jersey) Law 1954[62]
the person’s proper address.
166 False
or misleading information
(1) A
person who makes a statement in any document, material, evidence or information
which is required to be provided to the Authority or to any person entitled to
the information under this Law that, at the time and in the light of the
circumstances under which it is made, is false or misleading with respect to
any material fact, or that omits to state any material fact the omission of
which makes the statement false or misleading, shall be guilty of an offence
and liable to imprisonment for a term of 2 years and to a fine.
(2) A
person shall not be guilty of the offence if the person did not know that the
statement was false or misleading and with the exercise of all due diligence
could not have known that the statement was false or misleading.
167 Criminal liability of
partners, directors and other officers
(1) Where an offence under
this Law committed by a limited liability partnership, a separate limited
partnership, any other partnership having separate legal personality or a body
corporate is proved to have been committed with the consent or connivance of –
(a) a person who is a
partner of the partnership, or director, manager, secretary or other similar
officer of the body corporate; or
(b) any person purporting
to act in any such capacity,
the person is also guilty of the offence and liable in the same
manner as the partnership or body corporate to the penalty provided for that
offence.
(2) Where the affairs of a
body corporate are managed by its members, paragraph (1) applies in
relation to acts and defaults of a member in connection with the member’s
functions of management as if he or she were a director of the body corporate.
168 Appeal
(1) A person aggrieved by –
(a) a decision of the Authority to take a crisis prevention measure;
or
(b) a decision under this Law of –
(i) the Authority, other than a decision referred to in sub-paragraph (a)
or Article 163,
(ii) the Commission, or
(iii) any other person exercising a function or
power under this Law,
may, within 28 days of
the decision being made, appeal to the Court in accordance with this Article
against the decision.
(2) An appeal under paragraph (1) may be made only on the
ground that the decision of the Authority, the Commission or other person was
unreasonable having regard to all the circumstances of the case.
(3) The right of appeal under paragraph (1)(a)
shall be subject to the following –
(a) the lodging of an appeal under paragraph (1)(a)
shall not automatically suspend the effects of the decision against which the
appeal is made; and
(b) the decision of the Authority to take a
crisis prevention measure shall be immediately enforceable and shall give rise
to a rebuttable presumption that a suspension of its enforcement would be
against the public interest.
(4) Where the decision against which an appeal
is made is a crisis management measure, the right of appeal under paragraph (1)(b)
shall be subject to the following –
(a) the lodging of an appeal shall not suspend
the effects of the decision; and
(b) the only remedy available shall be limited
to compensation for the loss suffered by the applicant
as a result of the decision to act.
(5) On an appeal under this Article, the Court
may make such interim or final order as it thinks fit.
(6) Where it is necessary to protect the interests of third parties
acting in good faith who have acquired shares, assets, rights or liabilities of
a bank in resolution by virtue the application of a resolution tool or the
exercise of a resolution power by the Authority, the revocation of a decision
of the Authority shall not affect any subsequent administrative acts or
transactions concluded by the Authority which were based on the revoked
decision and in that case the remedies for wrongful decision or action by the
Authority shall be limited to compensation for the loss suffered by the
applicant as a result of the decision to act.
169 Limitation of liability of the Commission
(1) The Commission, any member of the Commission or any person who
is, or is acting as, an officer, employee or agent of the Commission or who is
performing any duty or exercising any power on behalf of the Commission or
under the control of the Commission shall not be liable in damages for anything
done or omitted in the discharge or purported discharge of any function under,
or authorized by or under, this Law unless it is shown that the act or omission
was in bad faith.
(2) The limitation of liability under paragraph (1) does not
apply so as to prevent an award of damages made in respect of an act on the
ground that the act was unlawful as a result of Article 7(1) of the Human
Rights (Jersey) Law 2000[63].
170 Rules of Court
The power to make Rules
of Court under the Royal Court (Jersey) Law 1948[64] shall include a power to make Rules for the purposes of this Law.
171 Customary law
The rules of customary
law applicable to a bank shall apply to a bank except in so far as they are
inconsistent with the express provisions of this Law.
172 Regulations
The States may by Regulations –
(a) make such other
provision as the States think fit for the purposes of carrying this Law into
effect;
(b) amend Part 5 or 6;
(c) create offences, and
specify penalties for such offences not exceeding imprisonment for 2 years
and a fine; or
(d) make such
consequential, incidental, supplementary and transitional provision as may
appear to be necessary or expedient, including provision making amendments to
any other enactment as appear to the States to be expedient –
(i) for the general
purposes, or any particular purpose, of this Law,
(ii) in consequence of any
provision made by or under this Law, or
(iii) for giving full
effect to this Law or any provision of it.
173 Orders
(1) The Minister may by
Order –
(a) prescribe any matter
which is to be prescribed under this Law;
(b) amend Part 1 or Article 5,
22(6), 30, 65(7) or (11) or 111;
(c) amend the Schedule 1
or Schedule 2; or
(d) prescribe resolution
safeguards in addition to those provided under Articles 76 to 85.
(2) An Order made under
this Law may make different provision for different cases and contain such
incidental, supplemental and transitional provisions as appear to the Minister
to be necessary or expedient.
(3) The Minister shall
consult the Authority and the Commission before making any Orders under this
Law.
174 Amendments of Interpretation (Jersey) Law 1954
In Article 8 of the Interpretation (Jersey) Law 1954[65] in the definition
“bankrupt” –
(a) in paragraph (d) the word “or” shall
be deleted;
(b) at the end of paragraph (e) for the
comma there shall be substituted the word “; or”
(c) after paragraph (e) there shall be inserted the following paragraph –
“(f) in the case of a bank, the making of a bank
winding up order under the Bank (Recovery and Resolution) (Jersey) Law 2017[66].”.
175 Amendments
of Banking Business (Jersey) Law 1991
In the Banking Business
(Jersey) Law 1991[67] –
(a) in Article 2(1) –
(i) after the words “means a sum of money”
there shall be inserted the words “(including a sum of money subject to bail-in)”,
(ii) in paragraph (a) after the words
“with or without interests” there shall be inserted the words “(including
negative interest)”;
(b) for Article 48D there shall be
substituted the following Article –
“48D Transfer
of deposit-taking business and any other business
(1) The Schedule may have effect to regulate any transfer of deposit-taking
business and any other business carried on by a registered person, whether or
not that other business is integral to the deposit-taking business.
(2) The Minister may by
Order amend the Schedule.”;
(c) in the Schedule –
(i) in the heading after the words “DEPOSIT-TAKING
BUSINESS” there shall be inserted the words “AND
ANY OTHER BUSINESS”,
(ii) for paragraph (1) there shall be substituted the following
paragraph –
“1. Where it is proposed to
carry out a scheme under which the whole or part of the deposit-taking business
and any other business carried on, or to be carried on, in or from within
Jersey by a person (the ‘transferor’) is to be transferred to another body
whether incorporated or not (the ‘transferee’) the transferor or the transferee
may apply to the Court for an order sanctioning the scheme.”,
(iii) in paragraph 4(b) after the words
“every member” there shall be inserted the words “and employee”,
(iv) for paragraph 7 there shall be substituted the following
paragraph –
“7. The Court shall not
make an order sanctioning the scheme unless it is satisfied that the transferee
is, or immediately after the making of the order will be, authorized (to the
extent required in Jersey or the jurisdiction in or from which it will carry on
the business) to carry on the deposit-taking business and any other business to
be transferred under the scheme.”,
(v) in paragraph 14, in the definition “liabilities” after the
word “duties” there shall be inserted the words “(including duties as an
employer, fiduciary or trustee)”.
176 Amendment of the Bankruptcy
(Désastre) (Jersey) Law 1990
In the Bankruptcy (Désastre) (Jersey) Law 1990[68] –
(a) in Article 3, in paragraph (1)(c)(iii)
the words “the Banking Business (Jersey) Law 1991 or” shall be deleted;
(b) in Article 4,
after paragraph (2) there shall be inserted the following paragraph –
“(3) Notwithstanding Article 3 or paragraph (1), an application
for a declaration may not be made if Article 94 of the Bank (Recovery and
Resolution) (Jersey) Law 2017[69] applies.”;
(c) Article 32(1)(aa) shall
be repealed.
177 Amendment of the Companies (Jersey) Law 1991
In the Companies (Jersey) Law 1991[70] –
(a) in Article 155, after
paragraph (6) there shall be inserted the following paragraph –
“(7) Notwithstanding paragraph (1), a company may not be wound up
under this Article if Article 94 of the Bank (Recovery and Resolution)
(Jersey) Law 2017[71] applies.”;
(b) in Article 157 –
(i) the paragraph number “(1)”
shall be added at the beginning,
(ii) after paragraph (1)
there shall be inserted the following paragraph –
“(2) Notwithstanding paragraph (1), a company may not be wound up
under this Chapter if Article 94 of the Bank (Recovery and Resolution)
(Jersey) Law 2017[72] applies.”.
178 Citation and commencement
This
Law may be cited as the Bank (Recovery and Resolution) (Jersey) Law 2017 and
shall come into force on such day or days as the States
may by Act appoint.
l.-m. hart
Deputy Greffier of the
States