PhD Student in Private Law. University of Judicial Sciences and Administrative Services

دانشنامه حقوق اقتصادی

Volume 27, Issue 18, June 2021, Pages 103-128   

Document Type: Scientific research

DOI: 10.22067/lowecon.2021.39390

Authors

Fatemeh Kiaee^{* 1}; Hassan Rahpeik²; mahmood bagheri³

¹PhD Student in Private Law. University of Judicial Sciences and Administrative Services

²Professor, University of Judicial Sciences and Administrative Services

³Professor, Faculty of Law and Political Sciences, Tehran University

Abstract

 
Extended Abstract
Introduction
Applying general bankruptcy rules to banks might cause many legal problems. Distinct characteristics of banks and their important role in the financial system makes many countries use the recovery institution in order to prevent the banks’ bankruptcy. The assessment of Iran regulations shows that any comprehensive laws of recovery have not ever legislated, hence it seems necessary to enact efficient laws in this regard. Due to the distinct social, economic, political, and legal characteristics of countries, it is not possible to provide a consistent model for recovery regulation in all countries. Moreover, translating and copying from other countries should not be utilized to formulate recovery regulations. Therefore, adoption of recovery institutions requires it to be completely analyzed and investigated.
Theoretical frame work
This study on the one hand explains the concept of recovery and introduce the most common methods of recovery. On the other hand, it analyses the Iranian regulations in the field of bank recovery and reviews the practical recovery examples in Iran and evaluates their efficiency. Finally, by understanding the legal nature of each recovery method, the one with correct legal basis according to Iranian law (i.e. appropriate to be adopted in Iran) is determined. A legal model that is consistent with the legal principles of Iran is consequently proposed
 
 
Methodology
This study attempts to answer the main questions of this research based on the analysis of the legal nature of the recovery. It investigates the possibility of adopting the recovery models in Iran by criticizing and comparing various statutes, regulations, and legal doctrines of different countries.
Results & Discussion
Bankruptcy is a judicial process that only considers the rights of creditors neglecting public benefit. Recovery, on the other hand, is an administrative process with the aim of allowing bank depositors to continue to meet their liquidity needs by accessing banking services. In addition, in this process, the bank's assets are managed in such a way that the value of the insolvent bank is maintained. In this paper, three widely used methods of bank recovery, which are mergers, purchase and assumption, and payments through the Deposit Guarantee are examined. Regarding the difference between the merger method and the purchase and assumption method, it should be noted that the latter involves the purchase of the insolvent bank’s assets and the acceptance of its liabilities, while in the former, the insolvent bank shares are sold and solvent Bank becomes the deputy director of the insolvent bank.  In addition, in the purchase and assumption method the legal personality of the insolvent bank does not disappear, but in the merger model, the legal personality of the insolvent bank disappears by merging with the solvent bank. On the other hand, the difference between the payments through the Deposit Guarantee Fund and the merger model is that the assignment of the bank commitment to the fund does not remove the contractual liability from the bank. This fact is in contrast to the merger method, which is based on the transfer of the contract. In the Deposit Guarantee Fund, the insolvent bank is still recognized as a party to the contract with depositors. However, in the merger method, the legal personality of the insolvent bank is completely reserved and the solvent Bank becomes its deputy. 
Conclusions & Suggestions
In this paper a recovery model consistent with the legal principles of Iran is proposed. It is shown that the preparation of the Bank Recovery Law should not be merely an imitation and requires an analysis of the legal nature of recovery methods. The proposed model for Iran, through the mergers as well as purchase and assumption methods, is a bilateral legal act (contract). Similar to the legal systems of some other countries, namely, US, Switzerland and Canada, the permission of debtors and creditors of the bank is not part of the basic structure of the proposed recovery model. However, the imposition of this plan on creditors can only take place if the proposed recovery plan is perfectly appropriate and in the interests of the creditors. The proposed legal model, if payment is made through the Deposit Guarantee Fund, is inherently a contract that is made solely by the will of the Deposit Guarantee Fund. Thus, there is no need for the permission of the depositors and the insolvent bank, because the bank's permission is not a condition for its validity and only deprives the fund of referring to it. In the model, the central bank or deposit guarantee fund is considered as a supervisory authority over the banking system. This authority, based on the estimated costs and conditions of the insolvent bank, takes into account the order of priority i.e. mergers, purchase and assumption, and payments through the Deposit Guarantee Fund. It then applies the proposed model to prevent the bank from going bankrupt. The adoption of an inconsistent law of recovery from other countries, in addition to its social, economic and political effects, could confuse and frustrate the legal system. Therefore, the development of efficient regulations in accordance with the nature of the recovery methods based on the proposed approach is of great importance in the Iranian legal system. 
 

Keywords

legal nature; recovery methods; mergers; purchase and assumption; payments through the Deposit Guarantee Fund

References

[1]     Abdollahi Nejad, Karim et al. (2016). "Voluntary transfer of contract compared to the conversion of commitment", Journal of Islamic Humanities, No. 19, 24-49. (In Persian).

[2]     Alférez, F. J. G., & Fernández, S. S. (2019). Resolution and contracts. In Research Handbook on Cross-Border Bank Resolution. Edward Elgar Publishing.

[3]     Amiri, Hossein & Tawfiqi, Mona.  (2017).  "Requirements for the existence of deposit insurance and its relationship with banking resistance", Quarterly Journal of Financial Economics, Eleventh Year, No. 41, 177-199. (In Persian).

[4]     Ansari, Ali & Askari Dehnavi, Javad.  (2019). "A Comparative Study of Alternative Legal Instruments for Bankruptcy of Banks", Private Law Research, No. 27, 91-113. (In Persian).

[5]     Bagheri, Mahmoud & Saquri, Mahboubeh.  (2016). "Bankruptcy Prevention", Bi-Quarterly Journal of Judicial Law Perspectives, No. 75 and 76, 1-32. (In Persian).

[6]     Binder, J. H. (2019). Proportionality at the resolution stage: Calibration of resolution measures and the public interest test. European Business Organization Law Review, 1-22.

[7]     Binder, J. H. (2016). Resolution planning and structural bank reform within the banking union. European Banking Union: Prospects and Challenges, 129-155.

[8]     Bolton, P., & Oehmke, M. (2019). Bank resolution and the structure of global banks. The Review of Financial Studies, 32(6), 2384-2421.

[9]     Carrascosa Morales, A. (2019). The Single Banking Resolution Mechanism. Financial Stability Review. Issue 36 (Spring 2019), p. 7-22.

[10] Cariboni, J. et al. (2016). Reducing and sharing the burden of bank failures. OECD Journal: Financial Market Trends, 2015(2), 29-61.

[11] Chennells, Lucy. & Wingfield, Venetia. (2015). Bank failure and bail-in: an introduction, Quarterly Bulletin, Bank’s Resolution Directorate, 228-241

[12] Dehghan Dehnavi, Nader & Soltani, Mohammad Reza.  (2018). "Analytical look at the fulfillment of commitment by a third party as an exception to the principle of relativity of contracts", Qanun Yar Scientific-Legal Quarterly, Volume 2, Number 7, 410-430. (In Persian).

[13] Dell'Ariccia, M. G. et al., (2018). Trade-offs in Bank Resolution. International Monetary Fund.

[14] Deslandes, J., Dias, C. & Magnus, M. (2019). Liquidation of Banks: Towards an ‘FDIC’ for the Banking Union?, IPOL Economic Governance Support Unit, 1-23

[15] Farajzadeh, Zahra & Iranmanesh, Mohsen. (2017). "Legal Dimensions of Contract Succession", Studies in Political Science, Law and Jurisprudence, Volume 3, Number 2/1, 14-22. (In Persian).

[16] Gordon, Jeffrey N. & Ringe, Wolf-Georg. (2015). Bank Resolution in the European Banking Union: A Transatlantic Perspective on What It Would Take, Columbia Law Review, Vol. 115:1297, 1297-1370.

[17] Hofmann, C. (2020). Bank resolution. In Research Handbook on Asian Financial Law. Edward Elgar Publishing.

[18] IMF Country Report, Monetary and Capital Markets Department and Legal Department.(2015).  United States  Financial Sector Assessment Program Review of the Key Attributes of Effective Resolution Regimes for the Banking and Insurance Sectors, International Monetary Fund Publication Services, Washington, D.C., No. 15/171.

[19] Jafari Samet, Amir. (2018), "Merger, an effective solution to prevent bank bankruptcy", Monetary-Banking Research, No. 37, 437-466. (In Persian).

[20] Jafari Langroudi, Jafar. (1991). Legal Terminology, Volume One, Tehran: Golshan Publishing. (In Persian).

[21] Katozian, Nasser. (2010). Civil Law: General Theory of Obligations, Fifth Edition, Tehran: Mizan Publishing. (In Persian).

[22] Kaviani, Kourosh & Farzaneh, Javid. (2014). "Reconstruction of Bankruptcy Status in Iranian Law and Guidelines for UNCITRAL Bankruptcy Law", Bi-Quarterly Journal of Legal Knowledge and Research, Third Year, First Issue, 61-88. (In Persian).

[23] Maarand, M. (2019). The concept of recovery of credit institutions in the bank recovery and resolution directive. Juridica Int'l, 28, 103.

[24] Qanavati, Jalil & kahanmooi, Ismail. (2010). "A Study of the Institution of Reconstruction in US Law and Its Comparison with the Arfaqi Contract", Lecturer in Humanities-Comparative Law Research, Volume 14, Number 4, 115-142. (In Persian).

[25] Rashvand Bukani, Mehdi et al.  (2013). "The Legal Nature of Debt Transfer in the Merger of Joint Stock Companies and Its Effects on Creditors and Non-Shareholder Debtors", Legal Journal of Justice, Seventy-seventh Year, No. 84, 70-102. (In Persian).

[26] Ramezani, Hamidreza et al.  (2019). "Presentation of Cobanking Model in Integrating Banks and Institutions with Marketing Approach (Case Study of Ghavamin Bank)", Quarterly Journal of Financial Engineering and Securities Management, No. 41, 162-191. (In Persian).

[27] Ramezani Akordi, Habib & Isaei Tafreshi, Mohammad.  (2020). "The Role of Bankruptcy Law in the Revival of Bankrupt Businesses (Study in Iranian and American Law)", Comparative Law Research, Volume 24, Number 1, 59-86. (In Persian).

[28] Ramos, D. & Solana, J. (2020). Bank Resolution and Creditor Distribution: The Tension Shaping Global Banking–Part II: The Cross-border Dimension. University of Miami Business Law Review, 28(2), 245.

[29] Restoy, F. (2019). How to improve crisis management in the banking union: a European FDIC?. SUERF Policy Note Issue, (102).

[30] Richards, K. (2020). Funding the Resolution of Systemically Important Banks: The Developing Country Challenge. Banking & Finance Law Review, 35(3), 495-521.

[31] Schild, J. (2018). Germany and France at cross purposes: the case of Banking Union. Journal of Economic Policy Reform, 21(2), 102-117.

[32] Schillig, M. (2016). Resolution and insolvency of banks and financial institutions. Oxford: Oxford University Press.

[33] Schoenmaker, D. (2019). A macro approach to international bank resolution. In Research Handbook on Cross-Border Bank Resolution. Edward Elgar Publishing.

[34] Simaei Sarraf, Hossein & Amini, Vahid.  (2020). “Special Legal System for Bankruptcy;  Reason and Legal Framework ", Business Research Journal, No. 94, 259-299. (In Persian).

[35] Shahidi, Seyed Mehdi. (1994). Fall of Obligations, Tehran: Publications of the Bar Association. (In Persian).

[36] Shirvani, Khadijeh & Issaei Tafreshi, Mohammad. (2019). "Bank Deposit Insurance (Comparative Study in US and Iranian Law)", Comparative Law Research, Volume 23, Number 4, 61-90. (In Persian).

[37] Skini, Rabia.  (2012), Bankruptcy Business Law and Bankruptcy Settlement, Tehran: Samat Publications. (In Persian).

[38] Tabatabai Nejad, Seyed Mohammad. (2015). "Deficiencies of the Bankruptcy System in Iran", Quarterly Journal of Private Law Studies, Volume 45, Number 1, 113-126. (In Persian).

[39] Tröger, T. H. (2018). Too complex to work: a critical assessment of the bail-in tool under the European bank recovery and resolution regime. Journal of Financial Regulation, 4(1), 35-72.

[40] Walther, A. & White, L. (2019). Rules versus discretion in bank resolution. The Review of Financial Studies.

[41] White, Phoebe. & Yorulmazer, Tanju. (2014). Bank Resolution Concepts, Trade-offs, and Changes in Practices, FRBNY Economic Policy Review, 153-173.

[42] Wolf, Annika. (2015).  A Global Cross-border Insolvency Framework for Financial Institutions, European University Institute (EUI) Working Paper, 1-19.

[43]  www.cbi.ir/showitem/14208.aspx