IRISH BANK RESOLUTION CORPORATION ACT 2013

Cited asIR No. 2/2013
JurisdictionIreland


IRISH BANK RESOLUTION CORPORATION ACT 2013

2013 Number 2

AN ACT TO PROVIDE FOR THE WINDING UP OF IBRC AND TO PROVIDE FOR CONNECTED MATTERS.

WHEREAS it is necessary, in the public interest, to provide for the orderly winding up of the affairs of IBRC to help to address the continuing serious disturbance in the economy of the State;

AND WHEREAS vital assistance has been provided by the State to maintain the functioning of IBRC to support the financial stability of the State;

AND WHEREAS vital assistance has been provided by the Central Bank of Ireland to maintain the functioning of IBRC to support the stability of the Irish financial system;

AND WHEREAS the maintenance of the functioning of IBRC is no longer necessary to support the financial stability of the State or the stability of the Irish financial system;

AND WHEREAS it is necessary to end the exposure of the State and the Central Bank of Ireland to IBRC;

AND WHEREAS the winding up of IBRC is now necessary to help to restore the financial position of the State and to help to enable the State to re-establish normalised access to the international debt markets;

AND WHEREAS it is necessary in the public interest to ensure that the financial support provided by the State to IBRC is, to the extent achievable, recovered as fully and efficiently as possible;

AND WHEREAS the winding up of IBRC is necessary to resolve the debt of IBRC to the Central Bank of Ireland;

AND WHEREAS in the achievement of the winding up of IBRC the common good may require permanent or temporary interference with the rights, including property rights, of persons;

[7th February 2013]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

S-1 Interpretation.

1 Interpretation.

1.- In this Act-

"Act of 1963" means the Companies Act 1963 ;

"Act of 1990" means the Companies Act 1990 ;

"Act of 2009" means the National Asset Management Agency Act 2009 ;

"Bank" means the Central Bank of Ireland;

"Court" means the High Court;

"credit facility" includes every kind of financial accommodation (including a loan facility, a line of credit, a hedging facility, a derivative facility, a bond, a letter of credit, a guarantee facility, an invoice discounting facility, a debt factoring facility, a deferred payment arrangement, a leasing facility, a guarantee, an indemnity and any other financial accommodation giving rise to a payment or repayment obligation) provided to a person, whether alone or together with another person or persons and whether as part of a syndicate or otherwise;

"IBRC" means Irish Bank Resolution Corporation Limited;

"Minister" means the Minister for Finance;

"NAMA" means the National Asset Management Agency;

"NAMA group entity" means-

(a) a subsidiary of NAMA (within the meaning given by section 155 of the Act of 1963), or

(b) any other body corporate and any trust, partnership, arrangement for the sharing of profits and losses, joint venture, association, syndicate or other arrangement formed, registered, incorporated or established by NAMA for the purpose of performing any of its functions under this Act or the Act of 2009;

"proceedings" includes arbitration and any other form of binding dispute resolution;

"security" includes-

(a) a charge,

(b) a guarantee, indemnity or surety,

(c) a right of set-off,

(d) a debenture,

(e) a bill of exchange,

(f) a promissory note,

(g) collateral,

(h) any other means of securing-

(i) the payment of a debt, or

(ii) the discharge or performance of an obligation or liability,

and

(i) any other agreement or arrangement having a similar effect;

"Special Liquidation Order" means an order, or any order amending that order, under section 4 and references to "Order" shall be construed accordingly;

"special liquidator" has the meaning given in section 7 ;

"subsidiary", in relation to IBRC, has the same meaning as in section 155 of the Act of 1963;

"subsidiary undertaking", in relation to IBRC, has the same meaning as in the European Communities (Companies: Group Accounts) Regulations 1992 ( S.I. No. 201 of 1992 ).

S-2 Expenses of Minister.

2 Expenses of Minister.

(1) The expenses incurred by the Minister in the administration of this Act shall be paid out of moneys provided by the Oireachtas.

(2) The expenses incurred by the Minister under this Act shall be paid out of the Central Fund or the growing produce thereof.

S-3 Purposes of Act.

3 Purposes of Act.

3.- The purposes of this Act are as follows-

(a) to help to address the continuing serious disturbance in the economy of the State;

(b) to provide for the winding up of IBRC in an orderly and efficient manner in the public interest;

(c) to end the exposure of the State and the Bank to IBRC;

(d) to help to restore the financial position of the State;

(e) to help to enable the State to re-establish normalised access to the international debt markets;

(f) to assist, to the extent achievable, in recovering the financial assistance provided by the State to IBRC as fully and efficiently as possible;

(g) to resolve the debt of IBRC to the Bank;

(h) to protect the interests of taxpayers;

(i) to restore confidence in the banking sector by furthering the reorganisation of the Irish banking system in the public interest;

(j) to underpin Government support measures in relation to the banking sector.

S-4 Special Liquidation Order.

4 Special Liquidation Order.

(1) The Minister shall, as soon as is reasonably practicable after the passing of this Act, make an order, in this Act referred to as the "Special Liquidation Order", in respect of IBRC for the purposes of the winding up of IBRC.

(2) The winding up of IBRC shall be deemed to have commenced at the time the Special Liquidation Order is made.

(3) After the making of the Special Liquidation Order, no person may bring a petition to wind up a subsidiary, or subsidiary undertaking, of IBRC, or a petition to have an examiner appointed to such a subsidiary or subsidiary undertaking, and the directors of such subsidiaries or subsidiary undertakings may not place such subsidiaries or subsidiary undertakings into a creditors' voluntary winding up without the consent of a special liquidator, which consent may be given on such terms and conditions as the special liquidator thinks fit.

(4) The Minister may by order amend the Special Liquidation Order.

S-5 Publication of Special Liquidation Order.

5 Publication of Special Liquidation Order.

(1) The Minister shall, as soon as practicable after the Special Liquidation Order is made-

(a) serve a copy of the Order on IBRC;

(b) send a copy of the Order to the registrar of companies, and

(c) publish notice of the making of the Order in Iris Oifigiúil and in 2 newspapers circulating generally in the State.

(2) The registrar of companies shall enter notice of receipt of the copy of the Order under subsection (1)(b) in the register of companies maintained for the purposes of the Companies Acts.

(3) The Minister may, if he or she thinks it necessary to do so, publish the Special Liquidation Order by any additional means or in any additional place.

(4) IBRC shall take all reasonable measures to ensure that its creditors are made aware of the making of the Special Liquidation Order without delay after its making, including, without limiting the generality of the foregoing-

(a) making an announcement, that relates to the existence of the Special Liquidation Order, to a regulatory news service generally used by relevant institutions in the State for the purposes of announcements to regulated markets, and

(b) providing a copy of the Special Liquidation Order to the regulatory news service referred to in paragraph (a).

(5) In this section "regulated market" has the same meaning as it has in the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60 of 2007 ).

S-6 Effect of Special Liquidation Order.

6 Effect of Special Liquidation Order.

(1) In this section "proceedings", subject to subsection (4), includes counterclaims or cross-claims against IBRC, in legal actions brought by IBRC, other than those counterclaims or cross-claims which, if successful, would give rise to a right of set-off.

(2) Subject to subsection (6), with effect from the making of the Special Liquidation Order-

(a) there shall be an immediate stay on all proceedings against IBRC,

(b) no further actions or proceedings can be issued against IBRC without the consent of the Court,

(c) no actions or proceedings for the winding up of IBRC, or for the appointment of an examiner (whether interim or otherwise) or a liquidator (whether provisional or otherwise) to IBRC can be taken, issued, continued or commenced,

(d) the Minister may discharge or remove any liquidator or examiner that had been appointed to IBRC prior to the making of the Special Liquidation Order, and

(e) the Special Liquidation Order shall constitute effective and proper notice to each employee of IBRC that his or her employment with IBRC is terminated with immediate effect.

(3) Subsection (2)(e) shall not prevent the special liquidator from engaging any person, including any person whose employment with IBRC was terminated upon the making of the Special Liquidation Order, on such terms as the special liquidator sees fit where the special liquidator considers such engagement to be necessary or beneficial for the orderly conduct of the winding up of IBRC.

(4) The appointment of a receiver pursuant to a debenture or charge created by IBRC shall not constitute proceedings for the purposes of this section.

(5) The making of the Special Liquidation Order in relation to IBRC shall, for the purposes of any enactment or rule of law or of any contract, deed or other agreement to which IBRC is a party, have the same effect as if the Special Liquidation Order were the making of a winding up order by the Court or the appointment of an official liquidator.

(6) (a) The Special Liquidation Order, and any other thing done under the Special Liquidation Order or pursuant to instructions issued or any directions given to a...

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