Another tool of resolution

shohini sengupta  

The reason we need bank resolutions and also a special law to deal with the demise of a bank is simply because banks are special. They have become a repository of public faith in the financial system. So long as consumers have unrestricted access to deposits, their faith in the banking system is maintained. The fractional reserve system works on this faith. Thus, a failure of a bank has repercussions that go well beyond savings and lending; it has an impact on the systemic stability of a country. To this effect, Meera Nangia (Editorial page, “Banking on legislation”, November 9) is on point when she says that “the rules for bankruptcy of a regular business cannot be applied to bank failures.” The Financial Resolution and Deposit Insurance Bill is exactly that — an attempt to make the system more credible, less chaotic, and systematic in times when credibility is at risk, by treating banks differently from regular corporations.

However, at the outset, she assumes that a bank is at the helm of decision making at a time the bank itself has failed. The Bill brings in a system of risk-based monitoring of financial institutions. At the stage of ‘critical’ risk to viability, when the proposed Resolution Corporation takes the decision to use a particular method of resolution which includes the tool of a ‘bail-in’, it is the Corporation that takes all decisions, and not the bank. A bare reading of the relevant provisions of the Bill shows that the Resolution Corporation can use this tool only in consultation with the regulator. It is an exaggeration to suggest that the Reserve Bank of India (RBI), along with the Resolution Corporation, will ‘bail-in’ depositor’s money to recapitalise the bank, especially when the Bill is designed to take away power from the failed financial institution at the stage of failure. This is exactly what happened during the global financial crisis, when tax-payer money was used to recapitalise the banking industry. Large financial institutions and their managements took unprecedented risks. When the crisis hit and bankruptcy loomed close, the risk-takers were not penalised. Instead, governments across the world panicked and recapitalised using public money. ‘Bail-in’ was an attempt to break this cycle of moral hazard and distributional inequity associated with ad hoc government hand outs.

Safeguards in the law

On the larger issue of a bail-in and the threat to depositor money, among the most ignored provisions of the Bill are the safeguards to the use of bail-in tool. The Bill makes it explicitly clear that only such liabilities may be cancelled where the liability/instrument contains a bail-in provision. It makes it abundantly clear that the Resolution Corporation will specify the liabilities to be bailed in. These will be specified in regulations that will be put up in the public domain before finalisation. Creditors/depositors will need to consent in advance to have their liabilities bailed-in. Even when liabilities are being bailed in, the Bill makes it incumbent upon the Resolution Corporation to follow the prescribed route. Here, uninsured depositors are placed higher over unsecured creditors and amounts due to the Central and State governments.

Lastly, the Bill gives aggrieved persons a right to be compensated by the Resolution Corporation if any of the safeguards have not been followed during a bail-in or in the conduct of any other resolution action.

Before terming this a draconian law, it should be noted that the law provides for an ex-ante consent for certain liabilities to be bailed in. Some of the most developed resolution regimes in the world have a more stringent, mandatory regime in place. For instance, the EU Bank Recovery and Resolution Directive and Single Resolution Mechanism empowers authorities to impose mandatory restructuring of shareholder and creditor claims. This is not the case in India.

In 2010, an article in The Economist article focussed on how a bail-in could have changed the outcome for Lehman Brothers in September 2008. Of course, in 2008 the only option was to choose between widespread systemic failure and a hurried taxpayer bail-out. Almost a decade later, when the rest of the world is finding ways to make its financial system more robust, we seem to be continuing with public discourse using incomplete information. The Bill simply adds another tool of resolution without taking away from the government’s implicit guarantee to depositors.

Shohini Sengupta is Senior Resident Fellow (Corporate Law and Financial Regulation), Vidhi Centre for Legal Policy, New Delhi. She has assisted in the drafting process of the Financial Resolution and DepositInsurance Bill