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The Banking Act 2009 (Mandatory Compensation Arrangements Following Bail-in) Regulations 2014

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Mandatory provisions: assessment of insolvency treatment

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6.—(1) A relevant compensation order must include the following provisions (subject to any necessary modifications).

(2) The independent valuer must assess the treatment (“the insolvency treatment”) which relevant persons would have received had the relevant banking institution entered insolvency immediately before the coming into effect of the initial instrument.

(3) The independent valuer must assess the treatment (“the actual treatment”) which relevant persons have received, are receiving or are likely to receive (as specified in the order) if no (or no further) compensation is paid.

(4) If the independent valuer considers that, in relation to any relevant person, the actual treatment assessed under paragraph (3) is less favourable than the insolvency treatment assessed under paragraph (2), the independent valuer must determine that compensation be paid to that relevant person.

(5) The amount of compensation payable by virtue of paragraph (4) must be determined by the independent valuer by reference to the difference in treatment assessed under paragraph (4) and on the basis of the fair and equitable value of that difference in treatment.

(6) In these Regulations—

“the initial instrument” has the meaning given in section 60B(2) of the Act, including that section as applied by section 89I(8) of the Act;

“the relevant banking institution” means the banking institution in respect of which the initial instrument is made.

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