Central Bank and Credit Institutions (Resolution) Act 2011

48.

Procedure if transferor disputes consideration for assets and liabilities.

48.— (1) A transferor in relation to a transfer order (other than a transfer order where the transferee is a bridge-bank), or, where the transferor is a subsidiary or a holding company of an authorised credit institution, that credit institution, may dispute the amount of the consideration specified in the transfer order for the assets and liabilities the subject of that order, if the transferor or credit institution, as the case may be, believes that—

( a) the consideration was not determined following a competitive process,

( b) it would have been practicable in all the circumstances for a competitive process to have been carried out, and

( c) the market value would have been materially greater than the consideration specified in the transfer order had a competitive process been carried out.

(2) In order to dispute the amount of consideration, the authorised credit institution shall serve a written notice to that effect on the Bank, not later than 14 days after the transfer order takes effect.

(3) As soon as practicable after receiving a notice under subsection (2) , the Bank shall appoint an independent valuer to determine, in accordance with this section—

( a) whether a competitive process was carried out, and

( b) if a competitive process was not carried out, whether it would have been practicable in all the circumstances for the Bank to have carried out a competitive process to determine the market value of the assets and liabilities to be specified in the proposed transfer order concerned, and if so, what the likely market value would have been if the competitive process had been carried out.

(4) In determining whether, for the purposes of subsection (3) (b) , it would have been practicable in all the circumstances for the Bank to have carried out a competitive process, the independent valuer shall consult with the Bank as to the reason why the Bank considered that it would not have been practicable to have carried out a competitive process.

(5) If the independent valuer determines that a competitive process was not carried out and that it would have been practicable in all the circumstances for the Bank to have carried out such a process, he or she shall determine what the market value would have been had the competitive process been carried out—

( a) on the basis that the intervention conditions were fulfilled in relation to the authorised credit institution concerned,

( b) on the basis of an urgent transfer in a distressed sale,

( c) on the basis that the transferor is being wound up,

( d) on the basis that the winding-up will be on the basis of an asset break-up, and

( e) on the basis of any other matter that the Minister prescribes by regulations.

(6) If the independent valuer determines, under subsection (5) , that the market value of the assets and liabilities the subject of the transfer order would have been materially different had the competitive process been carried out, he or she shall certify that fact to the Bank, the market value determined by the independent valuer shall be taken to be the consideration specified in the transfer order, and—

( a) if that market value would have been materially less than that consideration, the transferor shall, subject to subsection (7) , pay the difference to the transferee, or

( b) if that market value would have been materially greater than that consideration, the Bank shall draw on the Fund to pay the difference to the transferor and the transferee shall have no further liability in respect of those assets and liabilities.

(7) If a liability to pay the transferee arises under subsection (6) (a) in relation to a transfer order that transfers assets or liabilities of a subsidiary or holding company of an authorised credit institution, that credit institution and the subsidiary or holding company are jointly and severally liable to make the payment.

(8) The independent valuer shall—

( a) where he or she determines that a competitive process was carried out, certify to the Bank that it was carried out,

( b) where he or she determines that a competitive process was not carried out but that it would not have been practicable in all the circumstances to have carried it out, certify those determinations to the Bank, and

( c) where he or she determines that a competitive process was not carried out but that the market value of the assets and liabilities concerned would not have been materially different from the consideration for those assets specified in the transfer order, certify those determinations to the Bank.

(9) Where the independent valuer certifies to the Bank any of the matters referred to in subsection (8) , the market value shall remain the market value and the transferor shall have no further recourse in respect of the consideration.

(10) The transferor shall be liable to reimburse the Bank the costs of the independent valuer if the independent valuer determines that it was manifestly unreasonable for the transferor concerned to have disputed the amount of the consideration on the basis that—

( a) a competitive process was not carried out,

( b) a competitive process was not carried out and it would have been practicable in all the circumstances for the Bank to have carried out such a process, or

( c) a competitive process was not carried out and the market value of the assets and liabilities concerned would have been materially greater than the consideration for those assets specified in the transfer order.

(11) As soon as may be after the independent valuer certifies to the Bank a matter under this section, the Bank shall send a written notice to the transferor of the determination of the independent valuer.

(12) Leave shall not be granted for judicial review of a determination of the independent valuer unless—

( a) either—

(i) the application for leave to seek judicial review is made to the Court within 14 days after the Bank sends the written notice under subsection (11) , or

(ii) the Court is satisfied that—

(I) there are substantial reasons why the application was not made within that period, and

(II) it is just in all the circumstances to grant leave, having regard to the interests of other affected persons and the public interest,

and

( b) the Court is satisfied that the application raises a substantial issue for the Court’s determination.

(13) The Court may make such order on the hearing of the judicial review as it thinks fit, including an order remitting the matter back to the independent valuer with such directions as the Court thinks appropriate or necessary.

(14) Only a person to whom subsection (1) applies may dispute the valuation placed on the assets and liabilities transferred under a transfer order.