Archive: October 2023

On 21 June 2023, the District Court of Amsterdam (the WHOA Court) granted its judgment in one of the largest public proceedings under the WHOA (also known as the ‘Dutch Scheme’) in the restructuring of Steinhoff International Holdings N.V. (Steinhoff), a multinational company active in the sale of housekeeping goods and other related goods.

After three banks in the United States and Europe collapsed earlier in the year, financial regulators in other jurisdictions have been left wondering what they can do to protect their financial institutions from suffering similar fates. In Australia, the Australian Prudential Regulation Authority (APRA) is empowered to appoint a ‘statutory manager’ to distressed financial institutions to restabilise them and, in turn, protect Australia’s financial stability.

A statutory manager is someone appointed by APRA under the Banking Act 1959 (Cth) and/or the Insurance Act 1973 (Cth) to take temporary control of a troubled financial institution. Control is granted over the entire operation of the financial institution, including its assets and liabilities, for the purpose of protecting the interests of depositors where there is serious concern about the financial viability of the financial institution. When appointed, the statutory manager is able to:

1. conduct investigations into the financial institution’s affairs to assess its financial health, risk management practices, and compliance with regulatory requirements;
2. restructure the financial institution or initiate winding-up procedures; or
3. impose specific requirements to address identified problems with the financial institution and mitigate the risk of future distress.

APRA is then able to assess the extent of financial damage and design an appropriate solution. The regime would only come into effect in extraordinary circumstances and as a measure of last resort for financial institutions experiencing acute financial distress. 

What financial institutions does this power apply to?

APRA can appoint a statutory manager to authorised deposit taking institutions (including banks and superannuation firms) and insurance companies. APRA can exercise the statutory manager power if it considers the entity may become unable to meet its obligations, has suspended payments or likely will be unable to carry on banking business in Australia consistently with the interests of its depositors or with the stability of the Australia financial system. Generally, this would happen if APRA has no confidence in the board and management’s ability to resolve the crisis satisfactorily, or where the board and management are mismanaging the entity, including where the entity is insolvent or near insolvent.  

Foreign financial institutions play a large role in Australia, providing a range of important services such as corporate lending and trade finance. For this reason foreign financial institutions are, to a limited extent, subject to APRA’s statutory manager power. APRA is able to exercise control over Australian assets and liabilities of a foreign regulated body with a local branch office. This means APRA could easily prevent transfer of capital from Australia, revoke the body's authorisation or wind up the branch. 

Has this happened before?

We do not know what the statutory manager power would look like in practice, as the regime has not been tested with any of Australia’s banks to date. This reflects the long period of financial stability that Australia has enjoyed. 

In the case of insurers (where APRA holds similar powers), the Court has only appointed a judicial manager on APRA’s application on two occasions in 2009 and 2010. In both instances, APRA appointed managers over small general insurers which were both wound up after they had been deemed as insolvent. 

Are there any other jurisdictions with these sort of powers?

The global financial crisis in 2007 taught us that when complex financial institutions enter distress, there will be severe economic consequences if the problems are not swiftly addressed and comprehensively resolved. Despite this, economic systems globally exposed their vulnerability to such problems in March 2023, following the collapse of sophisticated banking enterprises. Jurisdictions other than Australia have contemplated equipping regulators with crisis management toolkits such as the one wielded by APRA.

If such measures are implemented globally, their efficacy may come into question in cross-border contexts. This will require cooperation between relevant authorities to ensure powers are applied in an effective and coordinated manner. This may prove difficult when different levels of power are conferred in different jurisdictions, meaning powers applied in one jurisdiction will not be recognised in others. This may lead to uncertainty for relevant stakeholders and a greater risk of disorderly outcomes – all issues which must be worked through and managed.