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Bailouts and Bankruptcies: Navigating Investor Protection in the Age of Financial Complexity

The author is Syed Alwaz Asif, a fourth year student at Dr Ram Manohar Lohiya National Law University, Lucknow.

In 2023, the global financial landscape was rocked by a series of crises originating from a Swiss Banking Giant, Credit Suisse. The bank was surrounded by double scandals involving the infamous collapse of Archegos Capital Management and Greensill Capital. These events served as a stark reminder of the financial system's vulnerabilities to complex, poorly understood financial instruments.

The scandal at Credit Suisse was precipitated by the use of an intricate financial tool, the AT-1 bonds, which are part of the bank's capital structure. The situation at Credit Suisse took a dire turn when the bank decided to write off these bonds, leading to substantial losses for investors. The majority of those affected were non-professional investors who were caught off-guard, unaware of the risk they had undertaken.

Meanwhile, India grappled with a financial debacle of its own in the year 2020 as the Yes Bank Limited, once a leading private sector bank, found itself in dire straits. As part of a rescue scheme proposed by the Reserve Bank of India, the bank was directed to write off 100% of its AT-1 bonds. Many of these bondholders, who had been misled into viewing these bonds as resilient as fixed deposits, lost their life savings overnight. The unpalatable episode served to highlight the rampant practice of "mis-selling" in the Indian financial market.

These two distinct yet parallel incidents have ignited a global debate on the need for stringent investor protection measures. There is an urgent necessity for regulatory bodies, financial institutions, and the legal system to fortify investor protection and enhance transparency concerning complex financial instruments.

The Increasing Complexity of Modern Financial Markets

As the global economy evolves, financial markets have witnessed an exponential increase in complexity. A prime illustration of this complexity can be seen in the structure and use of Additional Tier 1 (AT-1) bonds. AT-1 bonds are a form of contingent convertible capital instruments (CoCos), designed to absorb losses when a bank's capital falls below a pre-set level. They effectively serve as a buffer, protecting the bank's more senior debt and depositors during times of financial stress.

However, the very characteristics that make AT-1 bonds a stabilizing force within a bank's capital structure also make them a complex and potentially risky investment for individual investors. These bonds are subject to a high degree of uncertainty, as their value can be severely impacted by the issuing bank's financial health. The AT-1 bonds are inherently volatile financial instruments which sensitive to various dynamics in the industry including, the bank's performance, market conditions, and the bank's risk assessment. The structure of these bonds includes a contingent convertibility clause which under dire circumstances can be activated to convert these bonds into equity or a complete write-off, exposing investors to significant losses.

The escalating complexity of financial instruments, such as AT-1 bonds, presents significant challenges for investors, who may struggle to fully comprehend the risks involved, and regulators, who must adapt existing frameworks to ensure investor protection. Recent financial crises like those at Credit Suisse and Yes Bank have accelerated the need for a robust investor protection framework that can respond to the nuances of modern financial markets. A global initiative to bolster transparency and investor protection is necessary. It will not only protect individual investors but also enhance the overall stability and integrity of the worldwide financial system.

The Fallout of Inadequate Investor Protection: Retail Investors at Risk

The reverberations of insufficient investor protection measures are particularly deep-felt by retail and non-institutional investors. Their limited understanding of the financial market nuances makes them susceptible to risks, especially those associated with complex instruments like AT-1 bonds. This vulnerability was starkly demonstrated in the Credit Suisse crisis and the Yes Bank debacle, where many non-professional investors suffered substantial losses. The losses they suffered were not merely due to a misplaced belief in these bonds' security but primarily due to a fundamental misapprehension of the risks and a dearth of adequate information.

Such incidents can severely undermine investor confidence. A pertinent example is the 'Enron scandal' of 2001. The fraud committed by Enron, a large multinational company, led to substantial losses for investors and significantly eroded investors’ confidence in the stock market. Since markets operate more on wealth psychology, the Enron debacle severely hit the investor’s confidence in the stock market. It took years for the market to recover, and the incident sparked major changes in regulations to protect investors.

These cases highlight that trust, once lost, is difficult to regain and that a lack of robust investor protection not only harms individuals but can also destabilize the financial system as a whole. The erosion of trust can lead to reduced participation in financial markets, impacting their depth and liquidity. Consequently, it becomes paramount for regulators to reinforce investor protection measures, ensuring transparency and preventing mis-selling to safeguard both investors and the broader financial system.

Regulatory entities like the Reserve Bank of India (RBI) and the Securities and Exchange Board of India (SEBI) have the essential role of protecting investors and ensuring market integrity. Their decisions can significantly influence the financial environment. This was evident in the Yes Bank AT-1 bonds case in 2020, where an RBI-directed write-off of AT-1 bonds aiming to prevent systemic collapse had severe impacts on unsuspecting retail investors. This incident prompted a discussion on the RBI's regulatory oversight and transparency, emphasizing the need to uphold these standards in a constantly changing financial landscape.

The judgement of Axis Trustee Services Ltd. v. Union of India added fuel to this debate. The court observed that the regulatory framework surrounding AT-1 bonds was insufficient and the risks were not adequately communicated to investors. As such, the court held that the regulatory authorities had a duty to protect the interests of investors by ensuring that financial institutions provided complete and accurate information about such complex financial instruments.

Transparency and risk disclosure are fundamental to investor protection, a principle underscored by the Credit Suisse crisis. The Swiss banking giant's decision to write off its AT-1 bonds, leading to sizable investor losses, unveiled gaps in regulatory oversight and transparency on a global scale. Regulatory bodies must ensure that financial institutions uphold their responsibility of full risk disclosure, particularly as financial instruments become more complex. This responsibility extends beyond improving the technical proficiency of regulatory staff—it requires forging international collaborations to stay abreast of emerging trends and risks.

The crises faced by Credit Suisse and Yes Bank underscore that regulatory vigilance and transparency are not just national obligations but global imperatives, given the interconnected nature of today's financial world. The protection of investors in increasingly complex financial markets necessitates regulatory bodies prioritize improved transparency and robust oversight. Yet, the disparity between the heavily regulated bankruptcy and bank resolutions, and the unregulated landscape of ad hoc bailouts, reveals a troubling gap. The risk of misappropriation of public funds and random decision-making is significant. Establishing regulatory markers could facilitate actions in bailout situations that are consistent and based on established principles, mirroring the principle of shareholders bearing losses in bankruptcy laws. The commencement of global initiatives, possibly by bodies such as the United Nations Commission on International Trade Law (UNCITRAL) or the International Institute for the Unification of Private Law (UNIDROIT), to formulate 'Principles on Ad Hoc Bailouts of Critical Firms’, could plug this regulatory gap, offering essential assurance to all concerned parties.

India's Legal Conundrum: Navigating Investor Protection amidst Financial Complexity

The perpetual evolution of financial markets has led to a complex legal challenge in India, which got exemplified in the case of Axis Trustee Services Ltd. v. Union of India. This case unraveled the controversial restructuring plan for Yes Bank implemented by the Reserve Bank of India (RBI). The plan necessitated the write-off of Additional Tier-1 (AT-1) bonds, an action vital for the bank's survival but devastating for numerous bondholders. The resulting litigation ignited extensive debate on the need for robust regulatory frameworks and improved risk disclosure practices, both integral to investor protection.

The Bombay High Court's observations in this case offered valuable insights into the nature and status of AT-1 bonds. The AT-1 bonds are unique financial instruments with features such as "Coupon Discretion" and "Loss Absorbency" clauses. The former denotes the issuer's right to cancel interest payments, while the latter implies that these bonds can be written off or converted into equity under certain 'trigger events', such as the bank's capital falling below a specified level. These characteristics bolsters the bank's loss-absorbing capacity, but can expose bondholders to substantial risk, especially in the absence of comprehensive understanding and transparent disclosure.

A pivotal point that was deliberated in the case was the nature of Information Memorandum, whether it was statutory or it was a contractual transaction. This question was significant as it determined the enforceability of the agreement between the bank and the bondholders. The court, in its judgment, upheld the Information Memorandum to have statutory basis as the terms of the agreement was based on the Master Circular on Basel III Capital Regulations (2015). In India Thermal Power Ltd. v. State of Madhya Pradesh, the Apex court held that if a contract is mandated by law to include prescribed terms and condition, that contract would become a statutory contract. Hence, Bombay High Court set aside the decision to write off the AT-1 bonds, safeguarding the interests of bondholders. This judgment underscores the intricate balancing act that India's legal system must perform - protecting investor interests while ensuring the stability of the financial market.

The increasing complexities of today's financial markets necessitate a global commitment to regulatory vigilance and transparency for investor protection. The stark contrast between the well-regulated bankruptcy and bank resolutions and the largely unregulated bailouts calls for principle-based regulatory guideposts to ensure consistency in financial decisions. The international initiatives, potentially spearheaded by organizations such as UNCITRAL or UNIDROIT, could bridge this regulatory gap by formulating principles for ad-hoc bailouts. A holistic approach, encompassing regulatory enhancements, transparency, ethical practices, and robust investor education, is needed to safeguard investor interests and contribute to the stability of the global financial system.

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1 Comment

Arnav Shanker
Arnav Shanker
Jun 28, 2023

A coherent and very informative article! Written to the point and includes the requisite facts and figures!

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