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Key points
1. Introduction
On 15 April 2014, the European Parliament adopted the Bank Recovery and Resolution
Directive (BRRD)1 and endorsed the Commissions proposal for a European Single
Resolution Mechanism (SRM).2 Together, these two instruments create the new
European Union law framework for bank resolution, which is in line with an
international regulatory response to the financial crisis addressing the failure of
systemically important financial institutions.3
It aims at providing a middle way between liquidation and bail-out, which achieve[s]
the continuity of essential functions by . . . recapitalising the entity [or] by capitalising a
newly established entity or bridge institution to which [its] functions have been
transferred while not rely[ing] on public solvency support and not creat[ing] an
expectation that such support will be available.4 Instead, the costs of recapitalization are
to be borne by firm owners (shareholders) and unsecured and uninsured creditors.5
While the instruments aim at taking shareholders and creditors interests into
* Michael Wolfgang Muller, LL.M. (Cambridge), Research Assistant, LMU Munich.
1 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 173/190 (BRRD).
2 Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a
uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution
Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010, OJ L 225/1 (SRM).
3 cf R Smits, Is My Money Safe at European Banks? Reflections on the Bail-In Provisions in Recent EU Legal Texts (2014) 9
CMLJ 137.
4 Financial Stability Board, Recommendations: Key Attributes of Effective Resolution Regimes for Financial Institutions, 2011
5http://www.financialstabilityboard.org/publications/r_111104cc.pdf4accessed 18 May 2015; Preamble (iv), Key Attribute 3.2 (ix);
BRRD, Recital 45; SRM, Recital 58.
5 FSB Recommendations (n 4), Preamble (iii); BRRD, Recital 5; SRM, Recital 60.
The Author(s) (2015). Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com
doi:10.1093/cmlj/kmv029
The Bank Recovery and Resolution Directive and the Single Resolution Mechanism build the new
framework for bank resolution in the European Union.
The article discusses the legal protection of creditors who may be affected by a resolution, particularly
as the bail-in tool allows for a cancellation or conversion of debt.
It is argued that besides claims before domestic courts, the ECJ and the ECtHR, investment arbitration
can be a suitable forum for bank resolution disputes.
277
278
The European Unions regulatory response to the financial crisis thus encapsulates
both crisis prevention measures and crisis management tools.11 Its approach is two-fold.
On the one hand, a number of legislative acts aim at harmonizing the banking regulation
and supervision regimes of the Member States and creating a single rulebook for all banks
in the European Union.12 On the other hand, in order to strengthen the euro, a closer
cooperation is envisaged for the Member States of the eurozone and states that
voluntarily enter into a cooperation agreement: in the context of this, so called Banking
Union supervisory and regulatory powers are transferred to the EU level.13
The new framework of banking resolution as a crisis management measure mirrors
this two-fold approach. While the BRRD obliges all EU Member States to introduce a
bank resolution mechanism,14 the SRM applies only to the eurozone and to states that
opt in to the Banking Union. It transfers powers in the resolution process to a newly
created EU agency, the Single Resolution Board that is separate from national resolution
authorities.15 Moreover, a Single Resolution Fund is established to support the SRM.16
This section gives an overview of the resolution framework that in substantive terms is
the same for both BRRD and SRM (see Bank resolution and BRRD and SRM section),
analyses creditor rights in a bank resolution (see The position of creditors in a bank bailin section), and discusses the claims creditors could bring against a violation of these
rights (see The protection of creditor rights under the EU framework).
279
prudential requirements are infringed.18 The actual resolution process is triggered by the
determination that the financial institute is failing or likely to fail, the failure cannot be
prevented by private or supervisory actions and its prevention is necessary in the public
interest (ie the resolution objectivesensuring the continuity of critical functions,
avoiding a significant adverse effect on the financial system, protecting public funds,
depositors and clientscould not be met to the same extent by ordinary resolution
proceedings).19
In this case, authorities can make use of four different tools:20 selling parts of the
business,21 setting up a bridge institution22 or separating assets.23 When these
instruments fail (ie when authorities cannot find any buyer for the institution or do not
deem any market player able to fulfil the banks functions without endangering
themselves24 or if financial institutions are too complex for the application of a good
bank/bad bank model),25 a bail-in[b]y far the most controversial element26 of the
frameworkwill be likely to be carried out.27
The bail-in aims at increasing the immediate loss-bearing capacity of the bank28 by
cancelling shares and writing down debt or converting it into equity.29 Unlike under the
United States Orderly Liquidation Authority (OLA) Approach,30 the EU framework aims
at restoring banks in an open bank process.31 Only if the institution cannot be
recapitalized as a whole, do the bail-in funds have to be used to capitalize a bridge
institute.32 Owing to this immediate interference with legal property,33 it is here that the
question of creditor protection arises most dramatically.
280
(see Waterfall approach section). Moreover, it guarantees creditors not to be worse off
than in the banks insolvency (see No creditor worse off than in insolvency section).
Carve-outs
Waterfall approach
Since shareholders as owners of the firm are generally meant to bear losses prior to
creditors, shares are cancelled in the first step of the bail-in.37 Only if this is insufficient to
recapitalize, the institution liabilities are written down or converted. The order follows
the classification of capital for prudential purposes:38 the closer an instrument is to
equity, the more likely it is subject to the bail-in. According to the waterfall approach
provided for by the BRRD, only after one category has been fully subjected to bail-in, the
next category can be taken into account. Creditors of the same class in general have to be
treated in an equitable manner.39
No creditor worse off than in insolvency
Certain types of liabilities are exempted from the bail-in regime:34 secured liabilities;
deposits covered by a guarantee scheme; liabilities arising out of holding client assets or
client money or out of a fiduciary relationship; short-term liabilities towards institutions
(excluding intra-group liabilities) with an original maturity of less than 7 even days;
liabilities under payment and securities settlement systems with a remaining maturity of
less than 7 days; and liabilities to employees and commercial or trade creditors. The bailin thus excludes those liabilities that would receive preferential treatment in insolvency as
well, aims at preventing bank-runs by offering retail protection35 and seeks to uphold the
banks business functions36 by keeping short-term creditors, commercial partners,
employees and public funds out.
281
due, paid for by the domestic resolution financing arrangement or the Single Resolution
Fund, respectively.42
BRRD
The BRRD obliges Member States to provide for a right to appeal before domestic
courts.43 However, in order not to endanger the fulfilment of the resolution goals,44 the
appeal is not meant to suspend the resolution decision.45 Furthermore, a wrongful
resolution decision shall not affect any subsequent administrative acts or transactions.
. . . In that case, remedies for a wrongful decision or action by the resolution authorities
shall be limited to compensation for the loss suffered by the applicant.46 The BRRD
framework thus does not provide for a possibility to wind up the decision, it limits
creditors claims to monetary damages.47 As under the BRRD, resolution stays on the
national level, a direct action before the European Court of Justice is not possible: only in
the context of a preliminary ruling procedure,48 could it be discussed whether domestic
legislation is in compliance with EU law.
SRM
The SRM Regulation stipulates that decisions taken by the Board can be challenged
before the ECJ.49 However, it is questionable whether this allows for actions to be
brought by creditors directly on the European level: as non-privileged applicants in the
Action for Annulment, they would have to be directly affected by the decision of the
Board.50 While it could be argued that the resolution scheme already defines the loss
placed on creditors and the national implementation is rather automatic, a more formal
interpretation might point to the fact that it is only the national authorities
42 BRRD, art 75; SRM, art 76(1)(e).
43 BRRD, art 85(3).
44 BRRD, Recital 91.
45 BRRD, art 85(4)(a).
46 BRRD, art 85(4).
47 cf Babis (n7) 393.
48 TFEU, art 267.
49 SRM, art 86; SRM, Recital 120. The Appeal Panel that is to be established under SRM, art 85(1) only decides on specific
questions that do not involve creditor rights, cf SRM, art 85(3).
50 TFEU, art 263(4). It is likely that the decision of the Board will be seen as a regulatory act so that the requirement of
individual concern does not apply; for an overview on the debates around TFEU, art 263(4), cf A Dashwood and Others, Wyatt
and Dashwoods European Union Law (6th edn, 2011) 162; D. Chalmers et al., European Union Law (3rd edn 2014) 446.
As regards, the legal protection creditors can seek against bank resolutions, two
levels have to be distinguished: first, compliance with the legal safeguards provided for by
BRRD (see BRRD section) and SRM (see SRM section) is subject to judicial
review. Second, creditors could try to claim a violation of their fundamental right to
property.
282
implementation that has legal effects on the creditors.51 If the latter stance is taken,
creditors would again be limited to the claim for monetary damages as provided for in
the BRRD.52
Protection of the fundamental right to property
Summary
The EU framework provides creditors with the possibility to challenge the resolution
when the safeguards, including the no creditor worse-off clause, are not complied with.
However, claims must be brought before national courts and are limited to payment of
damages. Whether direct actions before the ECJ are admissible is as doubtful as is the
success of individual applications to the ECtHR. Creditors might therefore wish to seek
for other possibilities of redress on the international level.
51 cf SRM, art 18(9); for the requirement of direct concern, cf Case T-289/03 BUPA and ors v Commission [2008] ECR II-81 para
81: the contested measure must directly produce effects on the legal situation of the person concerned and its implementation
must be purely automatic.
52 Pursuant to art 5 SRM, the SRM only builds on the framework established in accordance with the BRRD; The SRM in art
87(4) assumes the possibility of national court proceedings when it provides that the Board shall compensate a national resolution
authority for the damage which it has been ordered to pay by a national court.
53 cf TEU, art 6; ECHR, Prot 1, art 1; Charter of Fundamental Rights of the European Union, art 17; and the provisions of
domestic constitutions, eg Grundgesetz [Germany], art 14; Human Rights Act [UK], Sch 1, Part II; French Constitution, arts 1, 34;
Declaration de Droits de lHomme et du Citoyen [France], art 17; Italian Constitution, art 42; Spanish Constitution, art 33.
54 The supremacy of EU law in general does not allow for a review by domestic constitutional courts, cf Declaration 17 annexed
to the Treaty of Lisbon, and, fundamentally, Case C-6/64 Flaminio Costa v ENEL [1964] ECR 585, 593; Case C-11/70 Internationale
Handelsgesellschaft [1970] ECR 1125. For similar approaches in domestic law, see, eg, Bundesverfassungsgericht [Germany], Solange
II (Re Wuensche Handelsgesellschaft), 22 October 1986, [1987] 24 CMLR 225; Conseil dEtat [France], Raoul Georges Nicolo [1990]
27 CMLR 173; Constitution of Ireland, art 29(6).
55 cf above SRM section.
56 The ECtHR has limited its jurisdiction on EU law to cases of manifestly deficient protection of fundamental rights in the EU:
Bosphorus v Ireland, ECHR 2005-VI, 107, 150. cf C Costello, The Bosphorus Ruling of the European Court of Human Rights:
Fundamental Rights and Blurred Boundaries in Europe (2006) 6 HRL Rev 87, 90. However, the envisaged accession of the EU to
the ECHR (art 6(2) TEU) may lead to a broader review of EU acts by the ECtHR. Cf B Rudolf, Die neue europaische
GrundrechtsarchitekturAuftrag fur Anwalte (2011) Anwaltsblatt 153, 158.
57 On the differentiation between political risks and economic risks, cf AM Schneuwly, International Investment Law and its
Instruments: Managing Risks to Investors and Host States (August 2012) Working Paper 5http://ssrn.com/abstract2203474
accessed 18 May 2015; R Dolzer and C Schreuer, Principles of International Investment Law (2nd edn, OUP 2012) 21.
58 Dennis Grainger and ors v UK, ECHR, app 34940/10, 10 July 2012, para 395http://hudoc.echr.coe.int/4accessed 18 May 2015.
Cf M Waibel, ECHR leaves Northern Rock Shareholders Out in the Cold EJIL talk! (3 August 2012) 5http://www.ejiltalk.org4
accessed 18 May 2015.
283
59 The following analysis will be limited to the application of the bail-in tool as this has the most immediate impact on creditor
rights (cf above Bank resolution under BRRD and SRM section).
60 On the compensation in investment disputes, cf B Sabahi, Compensation and Restitution in Investor-State Arbitration (OUP
2011); I Marboe, Calculation of Compensation and Damages in International Investment Law (OUP 2009).
61 M Waibel, Sovereign Defaults before International Courts and Tribunals (OUP 2011) 328; MW Muller, Elemente einer
konstitutionellen Theorie des internationalen Investitionsschutzrechts in B Fassbender and A Siehr (eds), Suprastaatliche
Konstitutionalisierung (Nomos 2012) 215.
62 cf Dolzer and Schreuer (n 57) 130; Muller (n 61) 228.
63 Under the Treaty of Lisbon, the EU has obtained the competence to conclude new Bilateral Investment Treaties (art 207
TFEU) and already started negotiations over Trade and Investment Agreements, most prominently with Canada and USA. The
BITs concluded by Member States, however, remain in force; cf Regulation (EU) No. 1219/2012 of the European Parliament and of
the Council of 12.12.12 establishing transitional arrangements for bilateral investment agreements between Member States and
third countries, art 3. Arts 711 of the same document allow Member States to amend existing and to conclude new bilateral
investment treaties, subject, however, to some notification requirements and participation rights of the EU Commission.
64 cf C Brown, Introduction in C Brown (ed), Commentaries on Selected Model Investment Treaties (2014) 1, 2; R Dolzer and YI
Kim, Germany in C Brown (ed), Commentaries on Selected Model Investment Treaties (OUP 2014) 289, 319. In the following
analysis, reference will be made to the Model BITs of Austria (2008), France (2006), Germany (2009), Italy (2003), Latvia (2009),
the Netherlands (2004), and the United Kingdom (2008).
65 While there is no formal doctrine of precedent in international investment law, tribunals tend to refer to older proceedings
and to distinguish cases; cf C Schreuer and M Weiniger, A Doctrine of Precedent? in P Muchlinski and Others (eds), The Oxford
Handbook of International Investment Law (OUP 2008) 1188, 1189; Dolzer and Schreuer (n 57) 33.
66 Fedax NV v Venezuela, ICSID Case No ARB/96/3, Decision of the Tribunal on Objections to Jurisdiction [Jurisdiction], 11 July
1997; Award, 9 March 1998.
67 Ceskolovenska Obchodn Banka AS v The Slovak Republic [CSOB], ICSID Case No ARB/97/4, Decision of the Tribunal on
Objections to Jurisdiction [Jurisdiction I], 24 May 1999; Decision of the Tribunal on Respondents Further and Partial Objection to
Jurisdiction [Jurisdiction II], 1 December 2000; Award, 29 December 2004.
68 Firemans Fund Insurance Company v Mexico, ICSID Case No ARB(AF)/02/01, Decision on the Preliminary Question, 17 July
2003; Award, 17 July 2006.
69 Deutsche Bank AG v Democratic Socialist Republic of Sri Lanka, ICSID Case No ARB/09/2, Award, 31 October 2012; Dissenting
Opinion Makhdoom Ali Khan, 23 October 2012.
The remaining part of this article discusses whether and to what extent international
investment tribunals provide another forum for (international) creditors to
challenge resolution decisions.59 While claims under investment treaties are limited to
damages,60 claimants often prefer this international adjudication forum over domestic
court proceedings.61 Investment arbitration is based on a global net of investment
agreements in which states guarantee the nationals of the other signatory favourable
investment conditions, including most favoured nation treatment, fair and equitable
treatment, and limitations on the governmental power to expropriate. While currently
there are over 3,000 independent investment treaties, their provisions are to a large extent
similar, allowing for a comparative interpretation and methodology.62 Moreover, there
are plans for a more unified European approach towards investment that could draw on
the Member States current investment policy.63 To get an overview on the investment
protection available to creditors of European banks, it is therefore useful to look at the
Model Investment Treaties of some EU Member States.64
In recent years, more and more financial disputes have successfully been
brought before international investment tribunals.65 Jurisdiction has been
established over promissory notes,66 loans secured by a government,67 subordinated
debentures,68 hedging agreements,69 and, most prominently and controversially,
284
BITs commonly define investment as every kind of asset,75 adding a list of assets that can
particularly be considered to be an investment. These lists are slightly different among
the various investment treaties. Some refer explicitly to corporate bonds, loans and debt
instruments,76 others mention debt participation in companies.77 All of the examined
model BITs refer in some way to obligations or claims to moneyat least if they have
an economic value78 or have been used to create such.79 The liabilities subject to bail-in
70 Abaclat and ors v Argentina, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011; Dissenting
Opinion Georges Abi-Saab, 28 October 2011; Ambiente Ufficio SPA and ors v Argentina, ICSID Case No ARB/08/9, Decision on
Jurisdiction and Admissibility, 8 February 2013; Dissenting Opinion Santiago Torres Bernardez, 2 May 2013; Giovanni Alemanni
and ors v Argentina, ICSID Case No ARB/07/8, Decision on Jurisdiction and Admissibility, 17 November 2014; Concurring
Opinion J Christopher Thomas, 17 November 2014. Another claim has been submitted with regard to Greeks sovereign debt
restructuring: Postova Banka, AS, and ISTROKAPITAL SE v Hellenic Republic, ICSID Case No ARB/13/8, pending.
71 This has already been discussed with regard to the bail-in scheme applied in the recapitalization of Bank of Cyprus and
Popular Bank of Cyprus in 2013; cf M Mendelson and M Paparinskis, Bail-ins and the International Investment Law of
Expropriation: In and Beyond Cyprus (2013) 28 JIBFL 475.
72 On (limited) exceptions where nationals can make use of the multilateralization of investment protection, cf SW Schill, The
Multilateralization of International Investment Law (CUP 2009) 197.
73 See above Carve-outs section.
74 In more detail, cf Gleeson (n 25) 5.
75 Austria Model BIT, art 1(2); France Model BIT, art 1(1); Germany Model BIT, art 1; Italy Model BIT, art I.1; Latvia Model
BIT, art 1.1; Netherlands Model BIT, art 1(a).
76 Austria Model BIT, art 1(2)(c); Italy Model BIT, art I.1b.
77 UK Model BIT, art 1a(i); Germany Model BIT, art 1(b); Latvia Model BIT, art 1.1b; Netherlands Model BIT, art 1(a)(ii).
78 Netherlands Model BIT, art 1(a)(iii); UK Model BIT, art 1(a)(iii); Latvia Model BIT, art 1.1c; France Model BIT, art 1(1)(c).
79 Germany Model BIT, art 1(c).
285
are likely to be covered by one of the provisions. In any case, reference could still be made
to the general provision that every kind of asset can be an investment.80
Territorial link
The examined BITs, however, limit the scope of application to assets invested in the
territory of the host state.81 This territorial link criterion will be of high relevance in
cases of intermediation chains, which are typical for the provision of capital in
international finance. Some guidance might be taken from previous arbitral decisions on
underwriting and secondary market transactions of bonds.82 In these cases, it was argued
that the payment lacked a sufficient territorial link as it was not directly transferred to the
issuer.83 The tribunals, however, dismissed this argument. In the above-mentioned
decisions on Argentinas sovereign debt restructuring, tribunals held that the point of
reference must be the economic operation as a whole.84 In an earlier decision on
promissory notes issued by the Republic of Venezuela, it was held that the decisive
criterion to establish a territorial link must be whether a provision of funds leads to
credit benefit in the host state.85 This rather broad approach makes it likely that the
territorial link criterion will also be established in prospective bank resolution disputes.
286
While earlier awards already considered some criteria as typical for investments,90 the
tribunal in Salini held the criteria of contribution, duration, risk and contribution to the
host states development to be mandatory with regard to the wording of investment and
the preamble of the ICSID Convention that emphasizes the developmental impact of
investments.91 To this list, the tribunal in Helnan Hotels added the requirement of
regularity of profit and return.92
The contribution criterion comes the closest to the notion of every kind of assets
in BITs as it requires a commitment of money and other assets93 that can generally
take every form.94 Under this wider notion, all liabilities in question could be
considered contributions. Sometimes, the criterion has, however, been understood as
setting a substantiality requirement, excluding minor contributions.95 This approach is
not undisputed as economic definitions of investment used by the International
Monetary Fund tend not to differentiate in terms of substantiality and a minimum
requirement of US$100,00 contained in ICSIDs first draft was not included in the final
version.96 Tribunals sticking to it would have to determine the substantiality of the
liability in question on an individual basis.
In a similar vein, portfolio investments have been seen as excluded from Article 25
ICSID Convention as they did not constitute a contribution to the host states
development.97 It was argued that they did not have a positive overall impact on the host
89 Salini Construttori SPA and Italstrade SPA v Marocco, ICSID Case No ARB/00/4, Decision on Jurisdiction, 23 July 2001, para
52; Abaclat, Diss Op (n 70) para 40; Ambiente, Diss Op (n 70) para 263.
90 Fedax, Jurisdiction (n 66) para 43.
91 Salini, Jurisdiction (n 89) para 52.
92 Helnan International Hotel A/S v Egypt, ICSID Case No ARB/05/8, Decision on Jurisdiction, 17 October 06, para 77; cf S
Manciaux, The Notion of Investment: New Controversies (2005) 6 JWIT 1, 2.
93 Malaysian Historical Salvors, SDN, BHD v Malaysia, ICSID Case No ARB/05/1, Decision on the Application for Annulment, 16
April 2009, para 57.
94 Deutsche Bank, Award (n 69) para 297.
95 cf C Schreuer, The ICSID-Convention: A Commentary (1st edn, CUP 2001) art 25, para 122.
96 Mortenson (n 87) 297.
97 On this criterion, cf OE Garca-Bolvar, Defining an ICSID Investment: Why Economic Development Should be the Core
Element (2012) 3 Invest Treaty News 3, 7.
provision has stimulated a heated debate in both case law and literature: the scale of
interpretations offered ranges from attributing almost no inherent meaning to Article 25
to understanding it as providing a very clearly and narrowly defined framework of
investment protection.89
For the latter approach, five criteria are commonly set out that assets have to comply
with in order to be regarded as investments under Article 25 ICSID Convention (the so
called Salini criteria). Their implications for bank resolution disputes will be discussed,
in The Salini criteria section, before some more flexible approaches to the notion of
investment are described that seem to prevail in recent case law and literature (see A
broader understanding of investment section).
287
98 M Sornarajah, The International Law on Foreign Investment (3rd edn, 2012) 196.
99 M Dekastros, Portfolio Investment: Reconceptualising the Notion of Investment under the ICSID-Convention (2014) 14
JWIT 286, 312 with further reference to OECD and ECB documents; cf also E Gaillard, Identify or Define? Reflections on the
Evolution of the Concept of Investment in ICSID Practice in C Binder and Others (eds), International Investment Law for the 21st
century (OUP 2009) 403, 414.
100 Dekastros (n 99) 313 makes the even broader argument that the admission of portfolio investments should preclude states
from denying them protection.
101 Dekastros (n 99) 305 et seq.
102 Mendelson and Paparinskis (n 71) 476.
103 B Legum and C Mouawad, The meaning of investment in the ICSID-Convention in PHF Bekker and Others (eds),
Making Transnational Law Work in the Global Economy: Essays in Honor of Detlev Vagts (CUP 2010) 326, 327.
104 Manciaux (n 92) 12; Deutsche Bank, Award (n 69) para 304; Consorzio Groupement LESI DIPENTA c Republique algerienne,
ICSID Case No ARB/03/08, Sentence, 10 January 2005, para 73(iii).
105 Saluka Investments BV v Czech Republic, UNCITRAL, Partial Award, 17 March 2006, para 209; Dekastros (n 99) 314.
106 The 2012 proposal of the BRRD exempted debt with a maturity of less than 1 month, cf Proposal COM/2012/0280 final
012/0150 (COD), XVI.
107 Salini, Jurisdiction (n 89) para 53; cf Jan de Nul NV and Dredging International NV v Egypt, ICSID Case No ARB/04/13,
Decision on Jurisdiction, 16 June 06, para 93.
108 Mortenson (n 87) 298.
109 Legum and Mouawad (n 103) 327; cf also FS Mishkin and Others, The Economics of Money, Banking & Financial Markets
(Pearson 2013) 207.
288
289
Based on these concerns, tribunals have understood the Salini criteria rather as
interpretative guidelines than as mandatory requirements122 and put more emphasis on
the investment definition in the applicable BIT.123 The objective wording of Article 25 of
the ICSID Convention is then understood as only setting outer limits to abstruse
results.124 This broader, more flexible approach makes it even more likely that the
liabilities subject to bail-in are regarded as investments under Article 25 ICSID as well.
Summary
The assessment of a number of Model BITs by EU Member States has shown that the
assets subject to bail-in are likely to fall into the substantive scope of an investment
agreement. Moreover, at least most liabilities will also be considered investments under
Article 25 of the ICSID Convention. Therefore, foreign creditors of European banks
under resolution are likely to be able to bring investment claims.
290
expropriation section) is only justified when it is for a legitimate public purpose (see
Legitimate public purpose section), non-discriminatory (see Non-discrimination
section), and against compensation. Tribunals, however, found that compensation was
not necessary when a taking of property occurs in the context of a legitimate regulatory
action (see Compensation section).
Definition of expropriation
Tribunals have been generous in identifying a legitimate public purpose and only rarely
excluded abusive expropriations.132 Here, reference can be made to the goals of banking
regulation as set out in BRRD and SRM and particularly the aim to avoid significant
adverse effects on financial stability by increasing market confidence and reducing
contagion in the financial system.133
Non-discrimination
291
in the business of the institution; the functioning of the going-concern has to be upheld
in order to keep the recapitalized institute workable.137 Between depositors below and
above the E100,000 threshold,138 there is no legally relevant difference in treatment: every
depositor is exempted from the bail-in up to the amount of E100,000. Thus, no
discrimination occurs.
Compensation
292
provided for in the EU framework.149 When the liquidation is, however, found to have
occurred although the institution was not likely to fail, compensation might be higher: it
would have to refer to the position the claimant would be in had the wrongful act not
occurred,150 ie the going-concern enterprise value . . . in addition to the compensation
based on the liquidation value.151 As this case is not dealt with in the EU framework,
tribunals here might go beyond the compensation awarded by domestic courts or the
ECJ.
Fair and equitable treatment
Legitimate expectations will be grounded in the legal order of the host state as it stands at
the time the investor makes the investment.155 Thus, they could be violated by a
retrospective change in the law.156 Under this provision, a bail-in could be problematic if
it is to the detriment of creditors who acquired financial instruments before the entry into
force of the resolution framework and were thus not aware of the risk that the
instrument entails.157 While the 2012 proposal of the BRRD tried to overcome this
problem by stipulating a late entry into force of the bail-in,158 the final version of the
framework does not provide for this safeguard.
However, even if tribunals found a retrospective application to have occurred, they
might see it as justified. Owing to the no creditor worse-off clause (which is enforceable
149 BRRD, art 74(2)(a); SRM, art 20(17): cf Bliesener (n 7) 221.
150 Case Concerning the Factory at Chorzow (Germany v Poland), Merits, 13 September 1928, 17 PCIJ Series A, 1, 47: wipe out all
the consequences of the illegal act and re-establish a situation which would, in all probability, have existed if that act had not been
committed.
151 Bliesener (n 7) 221.
152 Dolzer and Schreuer (n 57) 130. cf also A Diehl, The Core Standard of International Investment Protection (Wolters Kluwer
2012).
153 S Schill, Fair and Equitable Treatment in S Schill (ed), International Investment Law and Comparative Administrative Law
(OUP 2010) 151, 158.
154 Tecnicas Medioambientales Tecmed, SA v Mexico States, ICSID Case No ARB (AF)/00/2, Award, 29 May 2003, para 154; LG&E
Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina, ICSID Case No ARB/02/1, Decision on Liability, 03 October
2006, para 127; Occidental Exploration and Production Company v Ecuador, LCIA Case No UN3467, Final Award, 01 July 2004, para
185; CMS, Award (n 129) para 289; critical MTD Equity Sdn Bhd and MTD Chile SA v Chile, ICSID Case No ARB/01/7, Award, 25
May 2004, para 116; K Vandevelde, A Unified Theory of Fair and Equitable Treatment (2010) 43 NYU J Int Law Politics 43, 67.
155 Dolzer and Schreuer (n 57) 145; Salacuse (n 128) 232.
156 Schill (n 153) 174.
157 Gleeson (n 25) 23; Huertas (n 28) 73.
158 cf BRRD proposal (n 106) 18: That date [2018 instead of 2014] takes into account the observed maturity cycle of existing
debt.
The standard of fair and equitable treatment is the most frequently invoked standard152
of international investment law. It has been described as the embodiment of the rule of
law153 with procedural and substantive dimensions. These include the protection of the
legitimate expectations that were taken into account by the foreign investor154 (see
Legitimate expectations and the problem of retroactivity section) and the requirements
of transparency, due process and proportionality (see Transparency, due process, and
proportionality section).
293
by the expropriation standard159), creditors are in no different situation than they would
have been before in case of an insolvency.160 Moreover, tribunals acknowledge the right
of a sovereign state to determine its legal order161 and therefore might allow for the
recalibration of the economic and legal system in response to a severe crisis.162 If this
reasoning were adopted, the bank resolution would not be found in violation of the
standard of fair and equitable treatment.
Transparency, due process and proportionality
Moreover, the standard of fair and equitable treatment requires transparency both as to
what law is in force163 and within administrative and judicial decision-making.164
Furthermore, under the standard of due process, investors have to be involved in the
proceedings and be given a right to challenge decisions.165 Finally, decisions that conflict
with investors rights may not be disproportionate.166
Under these standards, the whole resolution procedure could be subject to review by
arbitral tribunals. The cornerstones of this procedure are set, when BRRD and SRM
stipulate the criteria that must be fulfilled before resolution is started,167 limit the
authorities discretion by the principle of seniority168 and the waterfall approach,169 and
offer creditor protection by an enforceable no creditor worse-off clause.170 Furthermore,
a bail-in may only be carried out when private initiatives and other public resolution
tools cannot reach the goal of bank recapitalization.171 While the administrative
procedure as set out in the framework, thus, is likely to be found transparent and
proportionate, it could be criticized that creditor protection is limited to retrospective
control: investors are neither consulted during the resolution process nor can they have
the resolution decision unwound. This drawback is, however, likely to be justified by the
necessity to carry out the complex procedure of bank recapitalization under economic
and time pressure,172 and by the serious systemic implications the unwinding of a bail-in
could have.173
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If this reasoning is accepted, tribunals will come to the conclusion that the resolution
framework in general provides for a sufficient procedural protection for creditors. This
leads, again, to the question whether the authorities and courts dealing with the bank
resolution acted in conformity with the procedural requirements and made a convincing
account of why they held the bail-in procedure to be necessary. All this becomes subject
to review under the fair and equitable treatment standard.
Summary
5. Conclusion
This article has examined the legal protection of creditors in a bank resolution under the
new EU framework, in particular in the case of a bail-in. It has argued that besides
proceedings before domestic courts, the ECJ and the ECtHR, foreign creditors can resort to
investment arbitration to enforce the safeguards provided for in the framework. At least
most of the assets subject to bail-in are likely to be considered investments under both
contemporary BITs and the ICSID Convention. The substantive provisions of investment
treaties allow for compensation to be awarded when the resolution is carried out too early,
disproportionately, intransparently or in violation of the no creditor worse-off clause.
As in financial disputes investment arbitration has often been preferred to domestic
court proceedings, it is not unlikely that claims are brought in the context of resolution
procedures. The trend of international investment law to become a framework for
international financial disputes, is, however, based on a broad notion of investment in
contemporary investment treaties. In the process of renegotiating or concluding new
investment treaties, states (and the EU under Article 207 TFEU) have to be aware of this.174
174 On examples to exclude financial market regulation from investment treaties scope of application, cf A van Aaken and J
Kurtz, Prudence or Discrimination? Emergency Measures, the Global Financial Crisis and International Economic Law (2009) 12
JIEL 859, 892.
The standards of expropriation and fair and equitable treatment allow for a substantive
review of the resolution process by international investment tribunals. While they draw
attention to disputed questions concerning issues of non-discrimination, valuation of
compensation and retroactivity, it is likely that the resolution framework as such is not
found to be in violation of these provisions. However, creditors can make use of
investment arbitration in order to enforce compensation for violations of the framework.
In particular, claims can be brought, when the resolution is carried out before the
requirements are met, is disproportionate or infringes the no creditor worse-off clause.