Irish Bank Resolution Corporation Act 2013

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).

2.. Expenses of Minister.

2.— (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.

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.

4.. Special Liquidation Order.

4.— (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.

5.. Publication of Special Liquidation Order.

5.— (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).

6.. Effect of Special Liquidation Order.

6.— (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 special liquidator pursuant to this Act—

(i) does not affect any proceedings taken, investigation undertaken, or disciplinary or enforcement action undertaken by the Bank, the Director of Public Prosecutions, An Garda Síochána, the Director of Corporate Enforcement or any regulatory authority, in respect of any matter in existence at the time the Special Liquidation Order was made or other thing was done, and

(ii) does not preclude the taking of any proceedings, or the undertaking of any investigation, or disciplinary or enforcement action, by the Bank, the Director of Public Prosecutions, An Garda Síochána, the Director of Corporate Enforcement or any regulatory authority, in respect of any contravention of an enactment or any misconduct which may have been committed before the Special Liquidation Order was made or the other thing was done.

(b) In this subsection “regulatory authority” includes—

(i) the Irish Stock Exchange,

(ii) the Irish Auditing and Accounting Supervisory Authority,

(iii) a prescribed accountancy body (within the meaning of Part 2 of the Companies (Auditing and Accounting) Act 2003), and

(iv) any other authority which regulates, or which may investigate or prosecute, any person under or by virtue of any enactment, rule of law or contract.

F1[(7) (a) In this subsection‘Act of 1879’means theBankers’ Books Evidence Act 1879.

(b) Where—

(i) a copy of an entry in a bankers’book (within the meaning of section 9(2) of the Act of 1879) falls to be produced in evidence,

(ii) the book is in the custody or under the control of a special liquidator or IBRC, and

(iii) the special liquidator or an officer or employee of, or other person duly authorised in that behalf by, the special liquidator or an officer or employee of IBRC gives evidence (orally or by affidavit) that—

(I) he or she truly believes that the book or record was kept in the ordinary course of the bank’s business, and

(II) the book is in the custody or under the control of the special liquidator or IBRC,

then the requirement for proof in section 4 of the Act of 1879 shall be taken to have been satisfied.

(c) The Act of 1879 has effect in relation to the books and records of IBRC as if—

(i) references in that Act to bank or banker were to—

(I) a special liquidator, or

(II) IBRC,

(ii) references in that Act to bankers’books were to the ordinary books and records of a special liquidator or IBRC, as the case may be, or the ordinary books and records of IBRC in the custody or under the control of a special liquidator, and

(iii) references in that Act to an officer of a bank were to a special liquidator or an officer or employee of, or other person duly authorised in that behalf by, a special liquidator or to an officer or employee of IBRC.]

7.. Special liquidator.

7.— (1) In the Special Liquidation Order, the Minister shall appoint one or more than one person for the purpose of the winding up of IBRC (in this Act referred to as a “special liquidator”).

(2) In deciding to appoint a person as a special liquidator, the Minister shall satisfy himself or herself that each person to be appointed has the appropriate level of skill, knowledge and qualifications required to perform the functions of a special liquidator pursuant to this Act.

(3) The Minister shall only appoint a person as a special liquidator if that person—

(a) is an individual, and

(b) is not precluded from acting as a liquidator of a company under section 300A(1) of the Act of 1963.

(4) The terms and conditions of appointment of a special liquidator shall be as fixed by the Minister.

(5) The Minister may at any time remove a special liquidator for any reason and appoint another person as a special liquidator.

(6) A special liquidator may also be appointed as a receiver by the Bank and in that event the special liquidator shall not be precluded by his or her appointment or obligations as a receiver from fulfilling his or her functions under this Act or complying with instructions issued or any direction given to him or her by the Minister pursuant to this Act.

(7) The appointment of a special liquidator shall be taken to have satisfied any statutory or other requirement to obtain the prior approval of the Bank for the acquisition of custody or control of any asset of IBRC acquired by the special liquidator pursuant to that appointment.

(8) Where the Minister appoints more than one special liquidator, the Minister shall provide in the Special Liquidation Order whether any act by this Act or the Companies Acts, as they apply to IBRC, required or authorised to be done by the special liquidator is to be done by all or any one or more of the persons appointed.

8.. Limitation of power to grant injunctive relief.

8.— (1) Where injunctive relief is sought on an interim or interlocutory basis in proceedings—

(a) to compel a special liquidator to take or refrain from taking any action, or

(b) to compel any other person to take or refrain from taking any action where the relief if granted would adversely affect a special liquidator in the discharge of his or her functions,

the Court shall have regard, in determining whether to grant such relief, to the public interest.

(2) In considering the public interest, the Court shall have regard to the purposes of this Act.

(3) Unless the Court is satisfied that not granting injunctive relief would give rise to an injustice, the Court shall not grant such relief where a remedy in damages would be available to the person who seeks that relief.

(4) For the purposes of subsection (3), the possibility that the action in respect of which injunctive relief is sought would or might result in a person being declared bankrupt or ordered to be wound up or otherwise adversely affected is not, of itself, sufficient to establish that not granting such relief would give rise to an injustice.

(5) In this section references to a special liquidator shall include references to a special liquidator when acting as a receiver, where he or she is appointed as a receiver by the Bank.

9.. Instructions and directions.

9.— (1) The Minister shall, as soon as practicable following the appointment of a special liquidator, issue the special liquidator with instructions setting out the details in respect of the manner in which the winding up of IBRC is to proceed.

(2) If the Minister is of the opinion that it is necessary for the achievement of any of the purposes of this Act to do so, he or she may give a direction to a special liquidator to take or to refrain from taking any action in connection with the winding up of IBRC.

F1[(2A) (a) The Minister may, for the purpose of enabling the Commission to perform its functions, give a direction to the special liquidator to do or refrain from doing any such act as is specified in the direction.

(b) A direction underparagraph (a)may include a requirement that the special liquidator waive legal professional privilege.

(c) A direction to whichparagraph (b)applies shall not be given unless the chairperson of the Commission so requests and informs the Minister in writing that he or she is satisfied that the direction is—

(i) necessary to enable the Commission to perform its functions, and

(ii) in the public interest.

(d) In this subsection‘Commission’means the commission of investigation established by the Commission of Investigation (Irish Bank Resolution Corporation) Order 2015 (S.I. No. 253 of 2015).]

(3) A special liquidator shall comply with instructions issued or any direction given under this Act.

(4) No cause of action of any kind shall lie against a special liquidator in respect of anything done or not done in compliance with instructions issued or any direction given under this Act.

(5) The Minister may revoke or amend instructions issued under this Act, including instructions issued under this subsection.

10.. Application of Companies Acts to IBRC.

10.— (1) Subject to subsections (2) and (3)and Part 1 of the Schedule, Part VI of the Act of 1963 applies to IBRC together with any necessary additional modifications.

(2) The following provisions of the Act of 1963 do not apply to IBRC:

(a) sections 205A and 206(1);

(b) sections 212 to 217;

(c) sections 220 to 223;

(d) sections 225 to 228;

(e) subsections (3) and (4) of section 231;

(f) sections 232 to 234;

(g) sections 239, 244 and 246;

(h) sections 251 to 279;

(i) subsections (3) and (4) of section 280;

(j) sections 282 to 282D;

(k) sections 301A, 306, 308, 309, 311, 311A, 312 and 313A.

(3) The provisions of Part VI of the Act of 1963 that apply to IBRC shall, in their application, be construed—

(a) as if any reference in those provisions to a company being wound up by the Court, however expressed, were a reference to IBRC being wound up by reason of the making of the Special Liquidation Order,

(b) as if any other reference in those provisions to winding up by the Court, however expressed, were a reference to the winding up of IBRC by reason of the making of the Special Liquidation Order,

(c) as if any reference in those provisions to a winding up order, however expressed, were a reference to the Special Liquidation Order,

(d) as if any reference in those provisions to a liquidator, however expressed, were a reference to a special liquidator, and

(e) as if those provisions had been modified in the manner set out in Part 1of the Schedule.

(4) Parts VI and VII of the Act of 1990 apply to IBRC subject to the following modifications and any necessary additional modifications—

(a) sections 141, 144, 145, 148 and 149, as if IBRC were a company being wound up by court and as if any reference in those provisions to a liquidator, however expressed, were a reference to a special liquidator;

(b) sections 139 and 140, as if those sections had been modified in the manner set out in Part 2of the Schedule;