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PC / Ivory Vellum Carnival 35X23 / 80 / 35X23 Carnival Vellum / Ivory PC PC / Ivory Vellum Carnival 35x23 / 80 PRAtt’s JOU PRAtt’s R N A L OF B A NK R UPTCY L UPTCY A W LEXISNEXIS® A.S. PRAtt™ FEBRUARY/MARCH 2015 EDITOR’S NOTE: CROSS-BORDER MATTERS Steven A. Meyerowitz VOLUME 11 NUMBER 2 VOLUME 11 CROSS-BORDER RESOLUTION OF BANKING GROUPS: INTERNATIONAL INITIATIVES AND U.S. PERSPECTIVES—PART IV Paul L. Lee THE LOOMING SHADOW IN THE PRC PROPERTY MARKET Christopher W. McFadzean and David Richardson IF IT WALKS LIKE A DUCK … IN RE DuckwoRTH: ANOTHER WARNING TO LENDERS TO TAKE CARE IN DRAFTING SECURITY DOCUMENTS Jeffrey Close, Mark Silverman, and Bryan Jacobson FEBRUARY/MARCH 2015 FEBRUARY/MARCH QUESTIONS ABOUT THIS PUBLICATION? For questions about the Editorial Content appearing in these volumes or reprint permission, please call: Kent K. B. Hanson, J.D. at ........................................................ 1-800-424-0651 ext. 3207 Email: ........................................................................................... [email protected] For assistance with replacement pages, shipments, billing or other customer service matters, please call: Customer Services Department at . (800) 833-9844 Outside the United States and Canada, please call . (518) 487-3000 Fax Number . (518) 487-3584 Customer Service Web site . http://www.lexisnexis.com/custserv/ For information on other Matthew Bender publications, please call Your account manager or . (800) 223-1940 Outside the United States and Canada, please call . (518) 487-3000 Library of Congress Card Number: 80-68780 ISBN: 978-0-7698-7846-1 (print) ISBN: 978-0-7698-7988-8 (eBook) Cite this publication as: [author name], [article title], [vol. no.] PRATT’S JOURNAL OF BANKRUPTCY LAW [page number] (LexisNexis A.S. Pratt); Example: Patrick E. Mears, The Winds of Change Intensify over Europe: Recent European Union Actions Firmly Embrace the “Rescue and Recovery” Culture for Business Recovery, 10 PRATT’S JOURNAL OF BANKRUPTCY LAW 349 (LexisNexis A.S. Pratt) This publication is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. A.S. Pratt is a trademark of Reed Elsevier Properties SA, used under license. Copyright © 2015 Reed Elsevier Properties SA, used under license by Matthew Bender & Company, Inc. All Rights Reserved. No copyright is claimed by LexisNexis, Matthew Bender & Company, Inc., or Reed Elsevier Properties SA, in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass. 01923, telephone (978) 750-8400. An A.S. Pratt™ Publication Editorial Offices 630 Central Ave., New Providence, NJ 07974 (908) 464-6800 201 Mission St., San Francisco, CA 94105-1831 (415) 908-3200 www.lexisnexis.com (2015-Pub.4789) Editor-in-Chief & Board of Editors EDITOR-IN-CHIEF STEVEN A. MEYEROWITZ President, Meyerowitz Communications Inc. BOARD OF EDITORS Scott L. Baena Thomas W. Coffey Matthew W. Levin Bilzin Sumberg Baena Tucker Ellis & West LLP Alston & Bird LLP Price & Axelrod LLP Leslie A. Berkoff Michael L. Cook Patrick E. Mears Moritt Hock & Hamroff Schulte Roth & Zabel LLP Barnes & Thornburg LLP LLP Ted A. Berkowitz Mark G. Douglas Alec P. Ostrow Farrell Fritz, P.C. Jones Day Stevens & Lee P.C. Michael L. Bernstein Timothy P. Duggan Deryck A. Palmer Arnold & Porter LLP Stark & Stark Pillsbury Winthrop Shaw Pittman LLP Andrew P. Brozman Gregg M. Ficks N. Theodore Zink, Jr. Clifford Chance US LLP Coblentz, Patch, Duffy & Chadbourne & Parke LLP Bass LLP Kevin H. Buraks Mark J. Friedman Portnoff Law Associates, DLA Piper Ltd. Peter S. Clark II Robin E. Keller Reed Smith LLP Lovells PRATT’S JOURNAL OF BANKRUPTCY LAW is published eight times a year by Matthew Bender & Company., Inc. Copyright 2015 Reed Elsevier Properties SA., used under license by Matthew Bender & Company, Inc. All rights reserved. No part of this journal may be reproduced in any form—by microfilm, xerography, or otherwise—or incorporated into any information retrieval system without the written permission of the copyright owner. For permission to photocopy or use material electronically from Pratt’s Journal of Bankruptcy Law, please access www.copyright.com or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For subscription information and customer service, call 1-800-833-9844. Direct any editorial inquires and send any material for publication to Steven A. Meyerowitz, Editor-in-Chief, Meyerowitz Communications Inc., PO Box 7080, Miller Place, NY 11764, [email protected], 631.331.3908. Material for publication is welcomed—articles, decisions, or other items of interest to bankers, officers of financial iii institutions, and their attorneys. This publication is designed to be accurate and authoritative, but neither the publisher nor the authors are rendering legal, accounting, or other professional services in this publication. If legal or other expert advice is desired, retain the services of an appropriate professional. The articles and columns reflect only the present considerations and views of the authors and do not necessarily reflect those of the firms or organizations with which they are affiliated, any of the former or present clients of the authors or their firms or organizations, or the editors or publisher. POSTMASTER: Send address changes to Pratt’s Journal of Bankruptcy Law, LexisNexis Matthew Bender, 630 Central Avenue, New Providence, NJ 07974. iv CROSS-BORDER RESOLUTION OF BANKING GROUPS—PART IV Cross-Border Resolution of Banking Groups: International Initiatives and U.S. Perspectives—Part IV Paul L. Lee* This is the fourth part of a five-part article analyzing efforts to create effective resolution regimes for systemically important cross-border banking institutions. Parts I and II of this article discussed the promulgation of the Key Attributes of Effective Resolution Regimes for Financial Institutions by the Financial Stability Board and various national and regional efforts in the European Union aimed at implementation of the Key Attributes. Part III discussed the resolution regimes applicable to the U.S. operations of foreign banking groups and the conformance of these regimes with the Key Attributes. This Part IV discusses the resolution regime applicable to the cross-border operations of U.S. banking institutions under the Federal Deposit Insurance Act and the conformance of that regime with the Key Attributes. Part V will discuss the new resolution regime under Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and its application to the cross-border resolution of large U.S. banking groups. INTRODUCTION Ideas have consequences or so the savants say. Of all the ideas to have emerged (or re-emerged) from the 2007–2009 financial crisis, none holds the promise of greater consequences for the financial sector than that of “too big to fail.” Indeed, the idea of “too big to fail” has already had significant consequences. In the United States, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) has imposed an enhanced prudential regime on systemically important financial institutions and created a special resolution regime for such institutions.1 At the international level, the Financial Stability Board (the “FSB”) has designated a set of global systemically important banking institutions for heightened regulation and has adopted the Key Attributes of Effective Resolution Regimes for Financial Institutions (the “Key Attributes”) to promote international convergence of resolution regimes * Paul L. Lee is of counsel at Debevoise & Plimpton LLP and a member of the firm’s Financial Institutions Group. He is also a member of the adjunct faculty at Columbia Law School. Mr. Lee can be reached at [email protected]. 1 Dodd-Frank Act, Pub. L. No. 111-203, Titles I & II, 124 Stat. 1376, 1391–1520 (2010). 59 PRATT’S JOURNAL OF BANKRUPTCY LAW for such institutions.2 Pursuant to a directive from the G20, the FSB has also undertaken the task of monitoring the progress that is being made at the national level in addressing “too big to fail.”3 The savants generally agree that one of the most important measures for addressing “too big to fail” is the implementation of credible resolution regimes for systemically important financial institutions. A credible resolution regime is generally regarded as one that would permit a resolution of such an institution without destabilizing the financial system and without requiring a “bailout” of the institution by the government.4 Part I of this article discussed the promulgation and implementation of the Key Attributes by the FSB. Part II of this article discussed national and regional efforts in the European Union aimed at creating credible resolution regimes for financial institutions. Part III of this article discussed the resolution regimes applicable to the U.S. operations of foreign banking groups and their conformance with the Key Attributes. This Part IV analyzes the resolution regime applicable to U.S. banks and their cross-border operations under the Federal Deposit Insurance Act (the “FDIA”) and its conformance with the Key Attributes. Part V will analyze the new resolution regime established under Title II of the Dodd-Frank Act for systemically important financial institutions. Since its creation in 1933, the Federal Deposit Insurance Corporation (the “FDIC”) has acquired substantial experience in resolving failed banking institutions under the FDIA, although it has had only rare occasion to utilize these powers in the case of large banking institutions.5 Title II of the 2 See Press Release, FSB, FSB announces policy measures to address systemically important financial institutions (SIFIs) and names initial group of global SIFIs (Nov.
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