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Abstract

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In bank resolution, swift and effective cooperation of different actors is of essence, particularly in cross-border cases. While the same can be said about cross-border insolvency management generally, the European framework for the recovery and resolution of failing banks and, in particular, the centralisation of resolution powers within the Single Resolution Mechanism stand out as particularly complex – and, at the same time, remains to some extent untested to the present date. Against this backdrop, the present article explores the statutory framework for cooperation between the Single Resolution Board, the European Central Bank in its capacity as supervisory authority within the Single Supervisory Mechanism, National Resolution Authorities and Third Country authorities. It concludes that, while the legal and institutional arrangements governing inter-agency cooperation are generally sound, operationalisation in actual cases might still be exposed to unexpected disruptions, especially in cases where political interests are at stake.

Abstract

As part of its ongoing consultation on the European crisis management and deposit insurance framework currently available for the management of bank failures within the EU generally and the Banking Union in particular, the European Commission has called for the respondents' views as to the need for further harmonisation of resolution arrangements for banks that currently do not qualify for resolution under the auspices of the Single Resolution Mechanism. In this respect, the consultation takes up a broader discussion on the need for harmonised bank insolvency regimes within the EU, which also ties in with an earlier international debate on the functional characteristics of optimal bank insolvency regimes initiated by international standard setters in the early 2000s. Against this backdrop, the paper analyses the case for further reform, and identifies potential impediments (both technical and political) to be expected in this regard. It argues that, while a full harmonisation of resolution powers and the centralisation of decision-making powers can be expected to address relevant concerns regarding the status quo, a comprehensive harmonisation can also be expected to meet with substantial political opposition, which in turn requires a better understanding of the functional requirements to be met by less ambitious reforms.

At first sight, the emergence of globally accepted conduct-of-business standards for securities intermediaries, driven by international standard-setting bodies, presents itself as a showcase for successful transnational legal ordering. For some time now, such standards have come to address issues that traditionally would be addressed by fiduciary law in common law jurisdictions. Within the European Union, the relevant standards have been transposed into legislation binding on all EU Member States, irrespective of their legal environment. While clearly originating from common law principles governing fiduciary relationships, the standards thus have trickled into civil law systems, turning them into a useful object of study from the perspective of transnational law theory. Against this backdrop, the present Article explores the emanation, development, transnational dissemination, and reception of conduct-of-business standards from a European and German law perspective and looks at enforcement problems in both administrative and contract law. It demonstrates that, while the relevant law can be characterized as reflecting an emerging transnational legal order, differences between legal systems continue to exist and the process of transnationalization is far from over.