TBTF & Finanzstabilität E-Book

• Herausgeber: buch & netz
• Kategorie: Fachliteratur
• Sprache: Deutsch

Veröffentlichungsjahr: 2025

Beschreibung

Sieben Rechtsprofessorinnen aus sechs Schweizer Universitäten haben am 14. Januar 2025 an der ETH Zürich das Symposium TBTF & Finanzstabilität durchgeführt, um Stabilitätsfragen wie die Too Big To Fail-Problematik in der Schweiz aus rechtswissenschaftlicher Sicht zu diskutieren. Anlass dazu gaben die Bankenkrisen im Frühjahr 2023. Sie haben die Debatte über systemische Risiken im Finanzsektor sowie deren Überwachung und Eindämmung durch Regulierung erneut entfacht. Das Symposium lud zum Dialog aller, die am Gesetzgebungs- und Regulierungsprozess beteiligt sind, in Verwaltung, Verbänden und Politik, mit In-House Counsels von Banken, Anwaltskanzleien mit Finanzmarkt-Expertise und Forschenden. Thematisiert wurden «Vertrauensschutz und Krisenprävention» sowie «Krisenbewältigung und Abwicklung». Beide Themenkreise wurden je mit einer Keynote der Deputy Governor der Bank of England und der General Counsel und Leiterin des Rechtsdienstes des Internationalen Währungsfonds eröffnet. Expertinnen und Experten sowie Schlüsselpersonen aus Behörden im In- und Ausland hielten Inputreferate, die in Paneldiskussionen vertieft wurden.

Leseprobe

TBTF & Finanzstabilität Copyright © by Isabelle Chabloz; Franca Contratto; Aline Darbellay; Mirjam Eggen; Seraina Grünewald; Nina Reiser; und Corinne Zellweger-Gutknecht is licensed under a Creative Commons Namensnennung-Nicht kommerziell-Keine Bearbeitung 4.0 International, except where otherwise noted.

© 2025 – CC BY-NC-ND (Werk), CC BY-SA (Text)

Editors: Prof. Dr. Isabelle Chabloz, Prof. Dr. Franca Contratto, Prof. Dr. Aline Darbellay, Prof. Dr. Mirjam Eggen, Prof. Dr. Seraina Grünewald, Prof. Dr. Nina Reiser, Prof. Dr. Corinne Zellweger-GutknechtPublisher: EIZ Publishing (eizpublishing.ch)Production, Set & Distribution: buch & netz (buchundnetz.com)ISBN:978-3-03805-780-2 (Print – Softcover)978-3-03805-781-9 (Print – Hardcover)978-3-03805-782-6 (PDF)978-3-03805-783-3 (ePub)DOI:https://doi.org/10.36862/eiz-781Version: 1.01 – 20250304

This work is available in print and various digital formats in OpenAccess. Additional information is available at: https://eizpublishing.com/publikationen/tbtf-finanzstabilitaet/.

1

Vorwort

Am 14. Januar 2024 fand das Symposium TBTF und Finanzstabilität an der ETH statt. Die Veranstaltung wurde von sieben Professorinnen aus sechs rechtswissenschaftlichen Fakultäten organisiert und bot Gelegenheit zur vertieften Diskussion, wie die künftige Too-Big-To-Fail-Regulierung auszugestalten ist.

Am Vormittag lag der Fokus auf dem Bereich „Vertrauensschutz und Krisenprävention“, während der Nachmittag dem Bereich „Krisenbewältigung und Abwicklung“ gewidmet war. Beide Themenkreise wurden je mit einer Keynote der Deputy Governor der Bank of England bzw. der General Counsel und Leiterin des Rechtsdienstes des Internationalen Währungsfonds eröffnet. Expertinnen und Experten sowie Schlüsselpersonen aus Behörden im In- und Ausland hielten anschliessend Inputreferate, die in Paneldiskussionen vertieft wurden.

Damit die Texte der Referentinnen und Referenten für die künftige Diskussion fruchtbar gemacht werden können, werden sie im vorliegenden Sammelband zeitnah und für alle zugänglich veröffentlicht. Die Texte wurden aus Manuskripten für die Referate wie auch aus Transkripten der Tagung selbst zusammengestellt. Sie geben ein Stimmungsbild der diskutierten Aspekte wieder, stellen jedoch keine wissenschaftlich vertieften Arbeiten der Referentinnen und Referenten dar. Entsprechend sind sie auch als vorläufige Schlussfolgerungen zu verstehen und zu lesen. Die Behördenvertreterinnen und -vertreter präsentieren zudem ihre eigenen Auffassungen. Die vorliegenden Texte reflektieren somit nicht die offiziellen Standpunkte der jeweiligen Behörden.

Unser herzlicher Dank gilt den Autorinnen und Autoren der Beiträge. Wir danken Anna Gengotti, Dr. Christian Sillaber, Anastasia Kesselmark, Patricia Uellendahl Roth und Maria-Antoinette Zürcher für die administrative Unterstützung. Für die sorgfältige Bearbeitung der Texte möchten wir uns bei Dr. Tobias Baumgartner, Banu Gün, Leonie Oroz, Sophie Tschalèr und Benjamin Zacharias Wipfler bedanken.

Wir wünschen Ihnen eine anregende Lektüre und hoffen, dass die vielfältigen Inputs der Beitragenden gehört werden und in die zukünftige Diskussion rund um Finanzstabilität einfliessen können.

Zürich, Februar 2025Isabelle ChablozMirjam EggenNina ReiserFranca ContrattoSeraina GrünewaldCorinne Zellweger-GutknechtAline Darbellay

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List of Contributors

Sarah Breeden

Sarah Breeden became Deputy Governor for Financial Stability on 1 November 2023. She is a member of the Monetary Policy Committee, Financial Policy Committee, Prudential Regulation Committee and the Bank’s Court of Directors. She has specific responsibility within the Bank for financial stability, the supervision of financial market infrastructures, international issues, central bank digital currency and fintech. Sarah joined the Bank in 1991. Prior to her current role, Sarah was the Executive Director for Financial Stability Strategy and Risk and a member of the Financial Policy Committee (2021-2023). Previously, she was the Executive Director for UK Deposit Takers Supervision (2019-2021), responsible for the supervision of the UK’s banks, building societies and credit unions, and Executive Director for International Banks Supervision (2015-2021), responsible for supervision of the UK operations of international banks. Sarah has an MA in Economics from Cambridge University and an MSc in Finance from the London Business School.

Isabelle Chabloz

Isabelle Chabloz is a Full Professor and Vice-Dean of the Faculty of Law at the Uni­ver­sity of Fribourg. She teaches commercial law and competition law. She is a member of the Takeover Board and of the Commission of Experts on the Commercial Register. She studied law at the University of Fribourg (lic. iur.) and at Monash University (LL.M., Melbourne, Australia). She obtained a PhD from the University of Fribourg in 2002 completed her habilitation thesis from the same university in 2012. After passing the bar exam in the Canton of Berne in 2003, she worked for two years as a legal counsel at the Takeover Board. From 2011 to 2020, she taught civil procedure to trainee lawyers at the University of Berne. In 2014, she joined UniDistance as a Professor of Commercial Law, Insolvency Law and Civil Procedure. She held the position of Vice-Rector for Teaching from 2019 until her departure in 2020. She was also Of Counsel at a major Swiss law firm for several years.

Franca Contratto

Franca Contratto is a Full Professor for Private Law, Corporate Law and Securities Regulation at the Faculty of Law at the University of Lucerne and co-director of the interdisciplinary Institute for Economics and Regulation. She holds a doctoral degree from the University of Fribourg based on a study on the regulation of derivatives (2006) and earned an LL.M. degree at Georgetown University in Washington D.C. (2008). From 2013-2019, she was an assistant professor at the University of Zurich and was promoted to private docent for a habilitation thesis on law enforcement in capital markets (2020). Franca Contratto was admitted to the bar in 1999 and worked as legal counsel in the financial industry (SIX Swiss Exchange, UBS AG) until 2007. She has been a member of the Swiss Takeover Board since 2015 and has been appointed as Vice Chairwoman of the Federal Audit Oversight Authority (FAOA) by the Federal Council in 2024. She is a member of the European Company Law Experts (ECLE).

Aline Darbellay

Aline Darbellay is an Assistant Professor of Capital Markets Law at the University of Zurich. Previously, she was an Assistant Professor of Banking and Finance Law at the University of Geneva and a Research Associate at the University of San Diego School of Law. She holds a PhD from the University of Zurich and an LL.M. from the University of San Diego. She is admitted to the New York bar. In addition, she is an Academic Fellow of the Jean Monnet Centre of Excellence on European Union Sustainable Finance and Law. Since 2025 she has been a member of FINMA’s Board of Directors. She also serves as a member of the editorial board of the Swiss Review of Business and Financial Market Law.

Patrik Ducrey

Patrik Ducrey is Director of the Secretariat of the Competition Commission (COMCO). He studied law in Fribourg and graduated in 1991 with a dissertation in antitrust law. He was admitted to the Zurich Bar in 1994 and subsequently worked in a large commercial law firm in Zurich, mainly in the field of competition law. In 1997, he joined the COMCO Secretariat as Deputy Director, became Deputy Director in 1999 and initially headed the Infrastructure Service and later the Product Markets Service. In 2018, he was appointed Director of the Secretariat. He has been a lecturer at the University of Bern since 2002 and a titular professor of competition law since 2008.

Mirjam Eggen

Mirjam Eggen is a Professor of Law at the University of Bern and President of the Swiss Takeover Board. Her research focuses on financial market law and contract law. She is particularly interested in contractual relations in new technologies. She also examines the interface between the regulation of financial markets under private and supervisory law. Past activities involved her service as a member of the Swiss Expert group on Banking Stability 2023. She has worked as an expert on various regulatory projects in the areas of financial market law and contract law and represents Switzerland as a delegate at UNICTRAL in Working Group IV on e-commerce.

Susan Emmenegger

Susan Emmenegger serves as the Dean of the Faculty and is a Full Professor of Private Law and Banking Law at the University of Bern. She also holds the position of Director at the Institute of Banking Law. Since 2014 she has also acted as adjunct professor at Cornell Law School (USA). Her research and teaching focuses on contract law and national and international financial market law. She is the editor and author of numerous publications in the area of financial market law. She was previously a member of the Advisory Board for the Future of the Financial Centre, as well as a member and Vice-Chair of the Swiss Takeover Board. Susan Emmenegger was a member of FINMA’s Board of Directors from 2021 to 2024. In 2024, she received an honorary doctorate from the Vienna University of Economics and Business.

Neil Esho

Neil Esho was appointed Secretary General of the Basel Committee on Banking Supervision (BCBS) in February 2022, having served in various roles within the BCBS Secretariat since 2006. During this period, Neil played a central role in the Committee’s supervisory and policy development programme, culminating in the finalisation of the Basel III regulatory reform package. Prior to joining the BIS, Neil was Head of Research at the Australian Prudential Regulation Authority (APRA). He holds a PhD in finance from the University of New South Wales, where he also held an academic position in the School of Banking and Finance.

Alain Girard

Alain Girard (1981) is admitted to the bar and holds a doctorate in law as well as a degree in economics. He has been Head of the Recovery and Resolution division and a Member of FINMA’s Executive Board since 1 August 2022. From 2019 until 2022 he was Head of Supervision of Small Banks and Securities Firms. Alain Girard previously worked in FINMA’s Recovery and Resolution division from 2015. Before joining FINMA, he worked at a law firm in Zurich and for the Competition Commission as a research associate and Deputy Head of the Centre of Competence for Law. He simultaneously provided advanced training for the debt enforcement and bankruptcy offices of the Cantons Bern, Fribourg, Geneva, Neuchâtel and Vaud.

Seraina Grünewald

Seraina Grünewald is Professor of International Economic Law and Finance Law at the University of St. Gallen and a Part-time Professor at the European University Institute (EUI). Before joining the University of St. Gallen in 2024, she held the Chair for European and Comparative Financial Law at Radboud University Nijmegen in the Netherlands. She is also a member of the Academic Board of the European Banking Institute (EBI) and an academic fellow with the Jean Monnet Centre of Excellence on Sustainable Finance and Law at the University of Genoa (EUSFiL). Her expertise covers areas such as banking supervision and resolution, sustainable finance, central banking as well as the digitalisation of money, and is frequently commissioned by national, European, and international authorities. At the EUI, she co-directs the Resolution Academy, a training course for high-level experts in bank resolution from relevant authorities, legal practice, and academia.

Eva Hüpkes

Eva Hupkes took up her position as Secretary General of the International Association of Deposit Insurers in August 2023. Prior to joining IADI, she was Head of Regulatory and Supervisory Policies at the Financial Stability Board (FSB). From 1999 to 2009, she held positions at the Swiss Financial Market Supervisory Authority (FINMA) and its predecessor the Swiss Federal Banking Commission. From 1997 to 1999 she worked at the International Monetary Fund. Dr Hupkes is a member of the New York Bar and studied law and international relations at the University of Passau, the University of Geneva, the Geneva Graduate Institute, Georgetown University, and the University of Bern, where she obtained her doctorate in law. She is a member of the International Monetary Law Committee of the International Law Association and a lecturer in international financial regulation at the University of Zurich. She served as a member of the Expert Group on Banking Stability that was established by the Swiss Federal Council in 2023.

Martin Janssen

Martin Janssen taught Economics and Finance at the University of Zurich, at the University of St. Gallen, at ETH Zurich, at the University of Rochester (N.Y.) and other institutions for more than 50 years, until 2021 as a part-time Professor of Financial Economics. In 2013, he was named professor emeritus. In 1986, Martin Janssen founded ECOFIN which has grown into a group of companies, active as a strategic advisor to large institutional and private investors, and as a provider of asset management solutions and as a provider of FinTech solutions in asset and risk management. He serves as CEO of ECOFIN Group. Martin Janssen published several books and articles on financial economics. He holds a PhD in economics from the University of Zurich. He was a co-founder of “alliancefinance”, which represents the interests of small banks and independent asset managers, and he is a board member of the “Swiss Risk Association”. He has been a member of the Mont Pelerin Society since 1987.

Sébastien Kraenzlin

Sébastien Kraenzlin is an alternate member of the Governing Board at the Swiss National Bank, where his responsibilities include financial stability, banknotes, risk management, operational risks and security. He was previously Head of the Banking Operations Division and responsible for strategic projects regarding the Swiss financial market infrastructure and innovations in cashless payment transactions (instant payments). He also managed the SNB’s innovation projects in distributed ledger technology, in close collaboration with the Innovation Hub of the Bank for International Settlements (BIS). One result was, for example, the realisation of digital central bank money for financial institutions on the platform of the SIX Digital Exchange (Project Helvetia III).

Fabien Liégeois

Fabien Liegeois, Full Professor, is active in the Faculty’s Banking and Finance Law Centre and Civil Law Department. His doctoral thesis, entitled “The Availability of Income”, deals with the notion of income and the time value of money. During this period, he carried out research at Berkeley, with the support of the Swiss National Science Foundation, and then completed an LL.M. at Chicago Law School. Admitted to the bars in Geneva (ranked 2) and New York, he is also a qualified tax expert. Fabien Liegeois has taught at the Universities of Geneva, Fribourg and Neuchâtel. He has received a prestigious award for one of his publications. He has published a book on international corporate taxation and is currently working on the 6th edition of a treatise on contracts in Swiss banking practice.

Yan Liu

Ms. Yan Liu is General Counsel and Director of the Legal Department of the International Monetary Fund. Ms. Liu has advised on all aspects of the IMF’s operations, including its surveillance over member countries’ economies, lending and technical assistance to its members. She currently leads the IMF’s work to help member countries strengthen their legal frameworks to regulate the financial sector and respond to the opportunities and challenges posed by technological changes, and to contribute to the development of international standards for financial regulation. She also oversees the Legal Department’s work on the development and implementation of the IMF polices on lending, sovereign debt restructuring, bank resolution, and corporate and household insolvency and debt enforcement. She frequently lectures and publishes on the law of the IMF and other issues of international financial law.

Mónica López-Monis Gallego

Ms. Mónica López-Monis Gallego is Senior Executive Vice-President of the Santander Group. Since May 2019, she has been Head of Supervisory and Regulatory Relations for Santander Group. Previously, from 2015 to 2019, she was Group Chief Compliance Officer. Since November 2018, she has been Chairwoman of the Board of Directors of Santander Consumer AG and Santander Consumer Holding GmbH (Germany). Previously, she has held various management positions in the Santander Group. She was Deputy Secretary of the Board of Directors of Banco Santander S.A. from 2013 to 2014 and General Secretary and Secretary of the Board of Directors of Banesto, S.A. (‘Banesto’) from 2009 to 2013. Prior to joining the Santander Group, Ms Mónica López-Monis was General Secretary and Secretary of the Board of Directors of Aldeasa, S.A., a company specialising in airport retailing, and General Secretary and Secretary of the Board of Bankinter. She holds a degree in Law and Economics and Business Administration from the Universidad Pontificia de Comillas ICAI-ICADE. In 1996 she joined the Corps of State Lawyers.

Michael Manz

Michael Manz is head of the Financial System & Financial Markets division at the State Secretariat of International Finance (SIF). The sections of his division consult on policies and prepare legislative proposals and ordinances in the field of financial market regulation (including banking, insurance, markets, financial market infrastructures, sustainable finance and financial innovation), in the area of combating money laundering and terrorist financing, and with regard to international monetary assistance. He is in charge of supporting the FDF’s membership in the International Monetary Fund (IMF), the Financial Stability Board (FSB) and the Financial Action Task Force (FATF). Michael Manz holds the title of an Assistant State Secretary and represents Switzerland as Head of Delegation in the FATF and in various international work streams on the financial system and financial markets.

Monica Mächler

Monica Mächler serves on the boards of directors of Zurich Insurance Group Ltd., of Cembra Money Bank AG and of non-profit organisations. She lectures and publishes mainly on financial market regulations in Switzerland. From January 2009 to September 2012, she served as Vice Chair of the Board of Directors of FINMA after leading the Federal Office of Private Insurance (FOPI) in 2007 and 2008. In 1990, after having practiced as an attorney in a business law firm, she joined the group legal department of Zurich Insurance Group where she was promoted to Group General Counsel in 1999 and to the Group Management Board in 2001.

Nina Reiser

Nina Reiser is Associate Professor of Financial Market Law at the University of St. Gallen (HSG), Vice Director at the Institute for Law and Economics (ILE-HSG) and Co-founder of the Center for Financial Services Innovation (FSI-HSG). Before joining HSG in 2022, she held various management and project management positions at the Swiss Financial Market Supervisory Authority FINMA, most recently as team head of authorizations in the Banks division. She is also Titular Professor for Private and Business Law at the University of Zurich, attorney-at-law, member of the board of the Verein für Qualitätssicherung für Finanzdienstleistungen VQF and holds a Master of Laws (LL.M.) degree from Harvard Law School, Cambridge, MA, USA. Her expertise includes corporate and financial market law.

Karl-Philipp Wojcik

Karl-Philipp Wojcik is the General Counsel of the Single Resolution Board in Brussels since 2020. He graduated in Law from the Universities of Münster, Paris I Panthéon-Sorbonne and Cologne (Ph.D.), followed executive education at Harvard Kennedy School and qualified for the bar in Germany. Having gained professional experience at international law firms and having been a judge in Germany, he joined the European Commission as a member of its Legal Service. His current professional focus is on strategic and litigation matters relating to EU and international financial services law. He is a member of academic boards and lectures law at various universities, such as Sciences Po in Paris and at the University of Bonn.

Oliver Wünsch

Oliver Wünsch is a Partner in Oliver Wyman’s Financial Services practices based in Zurich and leads Oliver Wyman’s global work with central banks and financial policy makers. For more than 25 years, he has worked at and with governments, central banks, supervisors, supranational institutions and commercial banks, advising on various aspects of sovereign finance including asset and debt management, macro-economic, monetary and debt policy, financial stability, risk management, financial integrity, stabilization and restructuring of systemic banks, and distressed asset resolution. Before joining Oliver Wyman, he held senior roles at the International Monetary Fund, representing the IMF in sovereign crisis management and lending programs in the Eurozone, where he was responsible for large-scale financial sector stabilization and restructuring programs. Prior to this, he built and headed the strategy department of the newly-founded Swiss Financial Supervisor FINMA, responsible for coordinating the Swiss post-crisis regulatory and supervisory initiatives including Basel III. As representative of the Swiss government and the IMF to committees of the Financial Stability Board (FSB), and the Basel Committee on Banking Supervision, Oliver had leading roles in developing the FSB’s global framework for the resolution of systemic financial firms. Oliver holds a Master’s degree in Economics and Computer Science, and a PhD in Economics from University of Zurich.

Corinne Zellweger-Gutknecht

Zellweger-Gutknecht is a Full Professor of Private Law and Economic Law at the University of Basel, a Titular Professor at the University of Zurich and admitted to the bar in the Canton of Zurich and in Switzerland. She researches and teaches in the fields of monetary and central bank law, financial market law, the law of obligations and the corresponding cross-sectional matters. She also acts as an expert for authorities, courts and private parties in these areas. Her current interests include regimes on emergency liquidity assistance and backstops for financial institutions and the impact of digitalization on money, payment systems and the financial market. Among other duties, she leads an interdisciplinary research group that is preparing a study on the digital franc for TA Swiss.

Heinz Zimmermann

Heinz Zimmermann, born in Bern (Switzerland) in 1958, studied economics at the Universities of Bern and Rochester NY and obtained his doctorate under Karl Brunner. After several scholarships at US universities, he became a lecturer in economics and finance at the University of St. Gallen in 1986. After his habilitation, he became a professor in 1989 and director of the Swiss Institute of Banking and Finance in 1990. In 2001, he accepted the new established chair in Financial Economics at the University of Basel, where he had already held a lectureship since 1988. He has also been a permanent guest lecturer at the University of Bern since 1999. His research interests include the empirical analysis of financial markets, in particular financial derivatives and equities. He was always engaged in academic and practical projects in the field of risk management and the design of financial innovations. Numerous publications in academic and non-academic journals, monographs and textbooks (e.g. Finance compact plus, 2021).

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Inhaltsverzeichnis

Keynote

Sarah Breeden

Referate

Ein Senior Managers Regime für die Schweiz

Isabelle Chabloz/Susan Emmenegger

Frühintervention

Seraina Grünewald/Nina Reiser

The Role of Deposit Insurance in Financial Stability

Franca Contratto

Investor Protection – Have AT1 Bonds Achieved Their Goals?

Fabien Liégeois

Liquidität und Eigenkapital

Heinz Zimmermann

Ausserordentliche Liquiditätshilfe

Aline Darbellay

Public Liquidity Backstop – PLB

Corinne Zellweger-Gutknecht

Input Statements Panel 1

The international standard setters’ view – the role of capital adequacy and liquidity?

Neil Esho

Einlagensicherung und Abwicklungsfinanzierung

Eva Hüpkes

Transparenz und Wettbewerb

Martin Janssen

Die drei Verteidigungslinien gegen Liquiditätsengpässe

Sébastien Kraenzlin

Keynote

Financial Safety Net — A Governance Perspective

Yan Liu

Referate

Eigenmittel in der Abwicklung

Oliver Wünsch

Finanzierung in der Abwicklung

Karl-Philipp Wojcik

Optionen in der Abwicklung

Mirjam Eggen/Seraina Grünewald

Resolution in Practice

Monica López-Monis Gallego

Input Statements Panel 2

Liquidität in der Krise

Michael Manz

Überlegungen zur Resolution-Strategie für Too-big-to-fail Banken, zum Wert von Optionalität und zur Krisenvorbereitung für „Systemic in Failure“ Banken

Alain Girard

On recovery and resolution in insurance regulationsOptionality and focus on outcomes in Switzerland, in the EU and in the UK

Monica Mächler

Zum Einbezug der Wettbewerbsbehörde bei der gewählten Lösung (Übernahme CS durch UBS)

Patrik Ducrey