اولویت طلبکاران در قانون ورشکستگی بانک‌های اروپایی: ثبات مالی و سلسله‌مراتب مطالبات

This book provides the first comprehensive treatment of creditor priority in European bank insolvency law. Following reform in the wake of the global financial crisis, EU law requires that Member States have in place bank-specific insolvency frameworks. Creditor priority – the order in which different creditors bear losses should a bank fail – differs substantially between bank-specific and general insolvency law. The bank-specific creditor priority framework aims to ensure that banks can enter insolvency proceedings without disrupting financial stability. The book provides a systematic and thorough account of the Bank Recovery and Resolution Directive and other EU legislation that governs creditor priority in bank resolution and liquidation proceedings, and their interaction with national law. The framework is analysed from several perspectives, including comparison with creditor priority in English, German and Norwegian general insolvency law. Moreover, the book places the evolution of the framework and its justifications within the broader post-crisis shifts in bank regulation, and critically examines the assumptions that underlie these developments. Finally, the book discusses how this area of law could evolve in the future. Hart Studies in Commercial and Financial Law: Volume 10 Acknowledgements Table of Contents List of Abbreviations Table of Cases Table of Legislation and Treaties 1. Introduction 1.1. Nature of the Subject 1.2. From Meta-Regulation to Technocratic Fine-Tuning 1.3. Terminology 1.4. The Structure of the Book 2. Why and How Society Seeks to Limit Bank Failures 2.1. Society's Concern with Bank Failures 2.2. The Pre-Crisis Turn Towards Meta-Regulation 2.3. The Reorientation Towards 'Technocratic Fine-Tuning' in Post-Crisis Banking Regulation 2.4. The Safety Net: Deposit Insurance, Central Bank Liquidity Support and Government Rescues 3. The Emergence of Bank-Specific Insolvency Proceedings 3.1. One Size Fits All: The General Approach to Corporate Financial Distress and Insolvency 3.2. Why are General Insolvency Proceedings Deemed Unsuitable for Banks? 3.3. Fragmentation: The Different Approaches to Bank Insolvency Prior to the Global Financial Crisis 3.4. Consensus: The Adoption of the Bank Recovery and Resolution Directive 3.5. Winding-Up Proceedings for Smaller Banks 4. Creditor Priority in General Insolvency Proceedings 4.1. Introduction 4.2. Priority in Liquidation Proceedings: The Tension between Party Autonomy and Prescriptive Rules 4.3. Creditor Priority in Modern Restructuring Proceedings 4.4. Understanding the Creditor Priority Regime of General Insolvency Law 5. Creditor Priority in the Winding-Up of Banks 5.1. Introduction 5.2. Secured Claims 5.3. Unsecured Claims 5.4. Creditor Priority in Group and Cross-Border Settings 6. Creditor Priority in Bank Resolution 6.1. Introduction 6.2. Priority Under the Different Resolution Powers 6.3. Secured Claims 6.4. Unsecured Claims 6.5. Creditor Priority in Group and Cross-Border Settings 6.6. The 'No Creditor Worse Off' Principle 7. The Rationales of Bank-Specific Creditor Priority Rules 7.1. Introduction 7.2. A Matter of Adapting General Principles to Special Circumstances? 7.3. Falling Like Dominoes: Creditor Priority and Direct Contagion 7.4. Creditor Priority and Indirect Contagion: Fire Sales and Informational Contagion 7.5. The Reorientation of Bank-Specific Creditor Priority Rules: From Party Autonomy to Prescriptive Rules 8. Administrative Law and Creditor Priority: The Case of MREL (Minimum Requirements for Own Funds and Eligible Liabilities) 8.1. How Administrative Law and Decisions Increasingly Influence Private Contracting Over Priority 8.2. Background 8.3. The First Iteration of the MREL Regime 8.4. The Emergence of a Global Consensus: Total Loss-Absorbing Capacity (TLAC) 8.5. The Revision of the MREL Regime 8.6. Who Will Invest in MREL Instruments? 9. From Meta-Regulation to Technocratic Fine-Tuning: The Phases of Creditor Priority in Bank Insolvency Proceedings 9.1. The Phases of Creditor Priority in Bank Insolvency Proceedings 9.2. Technocratic Fine-Tuning and Creditor Priority 10. What is the Future of Bank-Specific Creditor Priority Rules? 10.1. The End of Creditor Priority? 10.2. MREL and Financial Stability 10.3. Banking Union and the Further Harmonisation of Bank-Specific Priority Rules Bibliography Index