OSFI has determined that, effective January 1, 2013 (the Cut-off Date), all non-common Tier 1 and Tier 2 capital instruments issued by DTIs must comply with the following principles to satisfy the NVCC requirement:
Principle # 1: Non-common Tier 1 and Tier 2 capital instruments must have, in their contractual terms and conditions, a clause requiring a full and permanent conversion [Footnote 4] into common shares of the DTI upon a trigger event.[Footnote 5] As such, original capital providers must not have any residual claims that are senior to common equity following a trigger event.
Footnote 4: The BCBS rules permit national discretion in respect of requiring contingent capital instruments to be written off or converted to common stock upon a trigger event. OSFI has determined that conversion is more consistent with traditional insolvency consequences and reorganization norms and better respects the legitimate expectations of all stakeholders.
Footnote 5 The non-common capital of a DTI that does not meet the NVCC requirement but otherwise satisfies the Basel III requirements may be, as permitted by applicable law, amended to meet the NVCC requirement.
Some extant contingent capital has a “write-up” clause, whereby amounts written down can be recovered if the company squeaks through its troubles.
The minimum condition reveals that OSFI is more interested in political posturing than averting a crisis. If they wanted to avert a crisis, they would insist that conversion took place long before the point of non-viability, when the common still had value.
Principle # 3: All capital instruments must, at a minimum, include the following trigger events:
- a. the Superintendent of Financial Institutions (the “Superintendent”) advises the DTI, in writing, that she is of the opinion that the DTI has ceased, or is about to cease, to be viable and that, after the conversion of all contingent capital instruments and taking into account any other factors or circumstances that she considers relevant or appropriate, it is reasonably likely that the viability of the DTI will be restored or maintained; or
- b. a federal or provincial government in Canada publicly announces that the DTI has accepted or agreed to accept a capital injection, or equivalent support [Footnote 6], from the federal government or any provincial government or political subdivision or agent or agency thereof without which the DTI would have been determined by the Superintendent to be non-viable [Footnote 7]
Footnote 6: OSFI, after consulting with its FISC partner agencies, will provide guidance to DTIs upon request whether a particular form of government support being offered to such DTI is considered equivalent to a capital injection. For example, the Bank of Canada’s Emergency Liquidity Assistance (ELA) does not constitute equivalent support as it is targeted at solvent institutions experiencing temporary liquidity problems.
Footnote 7: Any capital injection or equivalent support from the federal government or any provincial government or political subdivision or agent or agency thereof would need to comply with applicable legislation, including any prohibitions related to the issue of shares to governments.
So the Superintendent, an employee of the federal Ministry of Finance, has absolute power – there is no appeal. There is nothing to prevent the Superintendent from saying tomorrow that the Royal Bank is non-viable, the Government is buying a hundred-billion shares for a dollar, fuck you suckers, goodbye. Five hundred years of bankruptcy law out the window.
Principle # 8: The issuing DTI must provide a trust arrangement or other mechanism to hold shares issued upon the conversion for non-common capital providers that are not permitted to own common shares of the DTI due to legal prohibitions. Such mechanisms should allow such capital providers to comply with such legal prohibition while continuing to receive the economic results of common share ownership and should allow such persons to transfer their entitlements to a person that is permitted to own shares in the DTI and allow such transferee to thereafter receive direct share ownership.
Since we’re ignoring bankruptcy law, why not ignore every other law and contract while we’re at it?
Section 3: Issuance of Capital Instruments prior to the Cut-off Date
3. DTIs are encouraged to consider amending the terms of existing non-common instruments that do not comply with the NVCC requirement to thereby achieve compliance, or to otherwise take actions, including exchange offers, which would mitigate the effects of such non-compliance.
It’s possible that some issuers might try this, but it’s awfully hard to imagine the kind of coercion that would be required to get something like this to pass for a PerpetualDiscount, given the reasonable expectation of redemption at par within ten-odd years.
Section 4: Criteria to be considered in Triggering Conversion of NVCC
In triggering the conversion of NVCC, the Superintendent will exercise his or her discretion to maintain a financial institution as a going-concern where it would otherwise become non-viable. In doing so, the Superintendent will consider the below list of criteria and any other relevant OSFI guidance [Footnote 16]. These criteria may be mutually exclusive and should not be viewed as an exhaustive list.[Footnote 17]
The exercise of discretion by the Superintendent will be informed by OSFI’s interaction with the Financial Institutions Supervisory Committee (FISC)[Footnote 18] (and any other relevant agencies the Superintendent determines should be consulted in the circumstances). In particular, the Superintendent will consult with the FISC member agencies and the Minister of Finance prior to making a non-viability determination.
Footnote 16: See, in particular, OSFI’s Guide to Intervention for Federally-Regulated Deposit-Taking Institutions.
Footnote 17: The Superintendent retains the flexibility and discretion to deal with unforeseen events or circumstances on a case-by-case basis.
Footnote 18: Under the OSFI Act, FISC comprises OSFI, the Canada Deposit Insurance Corporation, the Bank of Canada, the Department of Finance, and the Financial Consumer Agency of Canada. Under the chairmanship of the Superintendent of Financial Institutions, these federal agencies meet regularly to exchange information relevant to the supervision of regulated financial institutions. This forum also provides for the coordination of strategies when dealing with troubled institutions.
Full discretion, no judiciary, no appeal. Goodbye Canada, hello Soviet Union.
Update, 2011-2-7: DBRS says:
OSFI has also issued a draft advisory on non-viable contingent capital. Again, the draft advisory was consistent with the BCBS’s release on minimum requirements to ensure loss absorbency at the point of non-viability (January 13, 2011). The NVCC Draft Advisory sets out the governing principles, information requirements and criteria to be considered in triggering a conversion of non-viable contingent capital. DBRS will state its views on non-viable contingent capital when OSFI publishes a final release of the advisory, expected in 2011.
Notwithstanding the NVCC Draft Advisory, DBRS’s global bank rating methodology continues to deem the five largest Canadian banks (Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Royal Bank of Canada, and The Toronto-Dominion Bank) systemically important in Canada, which positively impacts DBRS’s senior and subordinated debt ratings of these banks.