Banking Bailout Law

Setting forth the building blocks of banking bailout law, this book reconstructs a regulatory framework that might better serve countries during future crisis situations. It builds upon recent, carefully selected case studies from the US, the EU, the UK, Spain and Hungary to answer the questions of what went wrong with the bank bailouts in the EU, why the US performed better in terms of crisis management, and how bailouts could be regulated and conducted more successfully in the future. Employing a comparative methodology, it examines the different bailout and bank resolution techniques and tools and identifies the pros and cons of the different legal and regulatory options and their underlying principles. In the post-2008 legal-regulatory architecture financial institution specific insolvency proceedings were further developed or implemented on both sides of the Atlantic. Ten years after the most recent financial crisis, there is sufficient empirical evidence to evaluate the outcomes of the bank bailouts in the US and the EU and to examine a number of cases under the EU’s new bank resolution regime. This book will be of interest of anyone in the field of finance, banking, central banking, monetary policy and insolvency law.

Includes a new foreword to the paperback edition.

Financial stability is a pillar of well-functioning financial markets. After the last financial crisis, European policymakers harmonised banking regulation and revised the framework of banking resolution. The introduction of the bail-in legislation is a natural experiment to improve the understanding of banking resolution and how it affected the funding strategies of banks. This book assesses whether financial stability has been strengthened by the change in banks’ resolution policy with a focus on the bail-in. The book shows how banks changed their funding strategies, shrank their balance-sheets and relied more on deposits. The book will discuss inter-alia the mis-selling of bonds, which happened during 2012-2013, analysing whether the bond allocation changed after the bail-in launch. It discusses how the bail-in mechanism was deemed credible by equity holders and argues that the European case would have useful implications for third countries. Finally, the book relates this discussion to the possible collateral effects generated by the new resolution policy during and after the COVID-19 crisis, which will be of particular interest to researchers and policymakers in banking and financial institutions. ​

The potential failure of a large bank presents vexing questions for policymakers. It poses significant risks to other financial institutions, to the financial system as a whole, and possibly to the economic and social order. Because of such fears, policymakers in many countries—developed and less developed, democratic and autocratic—respond by protecting bank creditors from all or some of the losses they otherwise would face. Failing banks are labeled "too big to fail" (or TBTF). This important new book examines the issues surrounding TBTF, explaining why it is a problem and discussing ways of dealing with it more effectively. Gary Stern and Ron Feldman, officers with the Federal Reserve, warn that not enough has been done to reduce creditors' expectations of TBTF protection. Many of the existing pledges and policies meant to convince creditors that they will bear market losses when large banks fail are not credible, resulting in significant net costs to the economy. The authors recommend that policymakers enact a series of reforms to reduce expectations of bailouts when large banks fail.

As opposed to a bank bailout, a bail-in occurs when creditors are forced to bear some of the burden of bank failure. The principal aim of this restructuring tool is to eliminate some of the risk for taxpayers. Several jurisdictions, including Switzerland and the European Union (EU), have adopted legal provisions regarding the bail-in, but until this, book literature on its implementation has been scarce. Offering a detailed and comparative analysis of EU and Swiss law relating to bail-ins and their economic impact, this is the first book to provide in-depth coverage of this new method of dealing with the failure of systemically important banks. In its contextualisation and analysis of the bail-in resolution tool, the book identifies and discusses the legal and economic issues that arise, including such aspects as the following: – the legal and economic properties of bail-in capital; ? the regulatory standard on total loss-absorbing capacity (TLAC) issued by the Financial Stability Board (FSB); ? the scope and sequence of liabilities subjected to bail-in; ? the legal position of stakeholders affected by a bail-in; ? strategies and procedures for the implementation of a bail-in; ? the limited circumstances under which government rescues should be available; and ? cross-jurisdictional issues and aspects of international cooperation. As well as case studies and analyses of legal issues with particular reference to Swiss law and the European Bank Resolution and Recovery Directive (2014/59/EU), the author applies economic concepts to the analysis of the law. International developments, in particular standards issued by leading regulatory bodies, are also covered. This book will be welcomed by legal practitioners working in banks and in banking regulation and by policymakers seeking information on the practical issues involved. As a detailed analysis of a new and highly significant development in banking law, it will also be of great interest to academics.

The bailouts during the recent financial crisis enraged the public. They felt unfair—and counterproductive: people who take risks must be allowed to fail. If we reward firms that make irresponsible investments, costing taxpayers billions of dollars, aren’t we encouraging them to continue to act irresponsibly, setting the stage for future crises? And beyond the ethics of it was the question of whether the government even had the authority to bail out failing firms like Bear Stearns and AIG. The answer, according to Eric A. Posner, is no. The federal government freely and frequently violated the law with the bailouts—but it did so in the public interest. An understandable lack of sympathy toward Wall Street has obscured the fact that bailouts have happened throughout economic history and are unavoidable in any modern, market-based economy. And they’re actually good. Contrary to popular belief, the financial system cannot operate properly unless the government stands ready to bail out banks and other firms. During the recent crisis, Posner agues, the law didn’t give federal agencies sufficient power to rescue the financial system. The legal constraints were damaging, but harm was limited because the agencies—with a few exceptions—violated or improvised elaborate evasions of the law. Yet the agencies also abused their power. If illegal actions were what it took to advance the public interest, Posner argues, we ought to change the law, but we need to do so in a way that also prevents agencies from misusing their authority. In the aftermath of the crisis, confusion about what agencies did do, should have done, and were allowed to do, has prevented a clear and realistic assessment and may hamper our response to future crises. Taking up the common objections raised by both right and left, Posner argues that future bailouts will occur. Acknowledging that inevitability, we can and must look ahead and carefully assess our policy options before we need them.

The disturbing, untold story of one of the largest financial institutions in the world, Citigroup—one of the " too big to fail" banks—from its founding in 1812 to its role in the 2008 financial crisis, and the many disasters in between. During the 2008 financial crisis, Citi was presented as the victim of events beyond its control—the larger financial panic, unforeseen economic disruptions, and a perfect storm of credit expansion, private greed, and public incompetence. To save the economy and keep the bank afloat, the government provided huge infusions of cash through multiple bailouts that frustrated and angered the American public. But, as financial experts James Freeman and Vern McKinley reveal, the 2008 crisis was just one of many disasters Citi has experienced since its founding more than two hundred years ago. In Borrowed Time, they reveal Citi’s history of instability and government support. It’s not a story that either Citi or Washington wants told. From its founding in 1812 and through much of its history the bank has been tied to the federal government—a relationship that has benefited both. Many of its initial stockholders had owned stock in the Bank of the United States, and its first president, Samuel Osgood, had been a member of the Continental Congress and America’s first Postmaster General. From its earliest years, Citi took massive risks that led to crisis. But thanks to private investors, including John Jacob Astor, they survived throughout the nineteenth century. In the twentieth century, Senator Carter Glass blamed Citi CEO "Sunshine Charlie" Mitchell for the 1929 stock market crash, and the bank was actually in violation of the senator’s signature achievement, the Glass-Steagall law, in the late 1990s until then U.S. Treasury Secretary Robert Rubin engineered the law’s repeal. Rubin later became the chairman of the executive committee of Citigroup, helping to oversee the bank as it ramped up its increasing mortgage risks before the 2008 crash. The scale of the financial panic of 2008 was not, as the media and experts claim, unprecedented. As Borrowed Time shows, disasters have been relatively frequent during the century of government-protected banking—especially at Citi.

The Financial Crisis Inquiry Report, published by the U.S. Government and the Financial Crisis Inquiry Commission in early 2011, is the official government report on the United States financial collapse and the review of major financial institutions that bankrupted and failed, or would have without help from the government. The commission and the report were implemented after Congress passed an act in 2009 to review and prevent fraudulent activity. The report details, among other things, the periods before, during, and after the crisis, what led up to it, and analyses of subprime mortgage lending, credit expansion and banking policies, the collapse of companies like Fannie Mae and Freddie Mac, and the federal bailouts of Lehman and AIG. It also discusses the aftermath of the fallout and our current state. This report should be of interest to anyone concerned about the financial situation in the U.S. and around the world.THE FINANCIAL CRISIS INQUIRY COMMISSION is an independent, bi-partisan, government-appointed panel of 10 people that was created to "examine the causes, domestic and global, of the current financial and economic crisis in the United States." It was established as part of the Fraud Enforcement and Recovery Act of 2009. The commission consisted of private citizens with expertise in economics and finance, banking, housing, market regulation, and consumer protection. They examined and reported on "the collapse of major financial institutions that failed or would have failed if not for exceptional assistance from the government."News Dissector DANNY SCHECHTER is a journalist, blogger and filmmaker. He has been reporting on economic crises since the 1980's when he was with ABC News. His film In Debt We Trust warned of the economic meltdown in 2006. He has since written three books on the subject including Plunder: Investigating Our Economic Calamity (Cosimo Books, 2008), and The Crime Of Our Time: Why Wall Street Is Not Too Big to Jail (Disinfo Books, 2011), a companion to his latest film Plunder The Crime Of Our Time. He can be reached online at www.newsdissector.com.