Government Accountability Office Reports on the Role of Complex Financial Institutions and International Coordination in Bankruptcy

Section 202 of the The Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 requires Government Accountability Office to report on the effectiveness of the US Bankruptcy Code (“Code”) in resolving certain failed financial institutions on an ongoing basis. The report notes that the effectiveness of the Code in resolving failed complex financial institutions is unclear for several reasons, including that criteria are not well-developed, a paucity of data, and the complex activities and organizational structures of financial institutions. Experts agreed that maximizing asset values and minimizing systemic impacts are potential criteria for judging effectiveness, but the Code does not directly address systemic factors in bankruptcies. Even if criteria were established, few complex financial institutions have filed for bankruptcy, and those that have, have done so recently, making measuring effectiveness difficult. Nonetheless, experts generally agreed that certain attributes of complex financial institutions (highly liquid funding sources; use of derivatives; complex legal structures, including regulated and unregulated entities, that do not correspond to integrated, interconnected operating structures; and international scope of operations) complicate bankruptcy proceedings. Proposals have been made to modify the Code, but experts do not agree on specifics. These proposals generally focus on or combine several types of actions: (i) increasing opportunities for bankruptcy planning; (ii) providing for regulatory input in the bankruptcy process; (iii) modifying the safe harbor for certain financial contracts; (iv) treating firms on a consolidated basis; and (v) improving court expertise on financial issues.

Originally Published: 
19/07/2011