Changes to the Banking Act 2009—what will they mean in practice?

Changes to the Banking Act 2009—what will they mean in practice?

Jeremy Jennings-Mares, partner at Morrison & Foerster, explains the background to the Bank Recovery and Resolution Order 2016 and considers its key changes.

Original news

Bank Recovery and Resolution Order 2016, LNB News 19/12/2016 125 : SI 2016/1239: From 16 December 2016, the special resolution regime for banks and investment firms was amended to strengthen and clarify the UK’s transposition of the EU Bank Recovery and Resolution Directive 2014/59/EU (BRRD).

When did the new SI come into force?

The instrument was made on 15 December 2016 and came into force on 16 December 2016.

What is the rationale for the changes?

The UK transposed the BRRD into UK law in January 2015, by means of amending part of the Banking Act 2009 (BA 2009). The part of BA 2009 being amended contains the provisions that constitute the UK’s special resolution regime, and since January 2015, the UK Treasury has identified a number of instances where changes could be made to BA 2009 which should improve the functioning of the UK resolution regime, as well as clarifying the transposition of the BRRD.

What are the main changes?

Firstly, there were changes in relation to the provisions that preserve the continuity of contracts in the event of a resolution. BA 2009, s 48Z provided that the occurrence of a crisis prevention measure or a crisis management measure (each as defined in BA 2009) would not trigger any default event provision in a contract to which any of the entity under resolution, its subsidiaries or other group entities are party, provided that the relevant entity continues to comply with its substantive obligations under that contract. The changes to BA 2009, s 48Z allow the Bank of England or, in the case of a share transfer order, the Treasury to determine that a resolution instrument should not be prevented from triggering default event provisions in a contract, so long as they consider that making such an exception to BA 2009, s 48Z would assist the resolution proceedings.

Secondly, the Order amends the Financial Services and Markets Act 2000, to provide powers for the Financial Conduct Authorit

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About the author:
Kathy specialises in restructuring and cross-border insolvency. She qualified as a solicitor in 1995 and has since worked for Weil Gotshal & Manges and Freshfields. Kathy has worked on some of the largest restructuring cases in the last decade, including Worldcom, Parmalat, Enron and Eurotunnel.