The Investment Bank Special Administration (Scotland) Rules 2011
| Jurisdiction | UK Non-devolved |
2011 No. 2262 (S.3)
Financial Services And Markets
Insolvency, Scotland
The Investment Bank Special Administration (Scotland) Rules 2011
Made 12th September 2011
Laid before Parliament 13th September 2011
Coming into force 14th November 2011
The Treasury, in exercise of the powers conferred by section 411(1A)(b), (2), (2C) and (3) of the Insolvency Act 19861, as applied by the Investment Bank Special Administration Regulations 20112, make the following Rules:
PART 1
Introductory Provisions
Citation
1. These Rules may be cited as the Investment Bank Special Administration (Scotland) Rules 2011.
Commencement
2. These Rules come into force on 14th November 2011.
Extent
3. These Rules extend to Scotland only.
Interpretation
4.—(1) In these Rules—
“the 1985 Act” means the Bankruptcy (Scotland) Act 19853;
“the 1986 Act” means the Insolvency Act 1986;
“the 2006 Act” means the Companies Act 20064;
“the 2009 Act” means the Banking Act 20095;
“accounting period” has the meaning given in rule 100 or, in relation to Part 6, section 52 of the 1985 Act6as applied by rule 132;
“appropriate fee” means 15 pence per A4 or A5 page and 30 pence per A3 page;
“business address” means the place where a person works;
“business day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in any part of Great Britain;
“expenses of the special administration” means those expenses incurred in the course of the special administration, or treated as incurred as such by these Rules, that are to be paid out in accordance with Part 4;
“final progress report” has the meaning set out in rule 149;
“financial contract” means a bilateral or multilateral contract entered into with the investment bank before it entered special administration, relating to transactions or positions of a financial nature, including contracts for the delivery or custody of client assets (but not including contracts which are purely administrative or contracts for services);
“investment bank” has the meaning set out in section 232 of the 2009 Act7;
“market price” has the meaning set out in regulation 12(9);
“prescribed part” has the same meaning as it does in section 176A(2)(a) of the 1986 Act8and the Insolvency Act 1986 (Prescribed Part) Order 20039;
“principal” has the meaning set out in rule 101(1);
“proxy-holder” has the meaning set out in rule 101(1);
“registered number” of the investment bank has the meaning set out in section 1066 of the 2006 Act;
“registrar of companies” means the registrar of companies for Scotland;
“the Regulations” means the Investment Bank Special Administration Regulations 2011;
“resolution fund order” has the meaning set out in section 49(3) of the 2009 Act;
“special administration” means, unless otherwise stated, special administration, special administration (bank insolvency) or special administration (bank administration) as the case may be;
“standard content” means—
(a) in relation to a notice to be published or advertised in the Edinburgh Gazette, the content specified in rule 174; and
(b) in relation to a notice to be advertised in any other way, the content specified in rule 175.
(2) Expressions used both in these Rules and in the Regulations (including expressions used in the provisions of the 1986 Act applied by the Regulations) have, unless otherwise stated, the meaning given in the Regulations.
(3) A reference to a numbered paragraph in these Rules shall, unless—
(a)
(a) it is a reference to a paragraph within the same rule; or
(b)
(b) otherwise stated,
be to the paragraph so numbered in Schedule B1 to the 1986 Act10, as applied by regulation 15.
(4) A reference to a provision of the 1986 Act, if that provision is listed in Table 1 or 2 in regulation 15, is, unless otherwise stated and subject to paragraph (5), a reference to that provision as applied by regulation 15.
(5) A reference to a provision of the 1986 Act being applied by regulation 15 in a special administration (bank administration) means that provision as applied by section 145 of the 2009 Act, together with the modifications (if any) set out in the table in paragraph 6 of Schedule 2 to the Regulations.
(6) A reference to a numbered regulation shall, unless otherwise stated, be to the regulation so numbered in the Regulations.
Application of Rules
5.—(1) These Rules apply as follows—
(a)
(a) Part 2, Chapter 1 applies where an application is made for a special administration order;
(b)
(b) Part 2, Chapter 2 applies where an application is made for a special administration (bank insolvency) order; and
(c)
(c) Part 2, Chapter 3 applies where an application is made for a special administration (bank administration) order.
(2) Unless otherwise stated, the remaining rules apply in respect of special administration, special administration (bank insolvency) and special administration (bank administration).
PART 2
Application for Order
CHAPTER 1
Application for special administration order
Content of application
6. An application for a special administration order in respect of an investment bank must specify—
(a) the full name and registered number of the investment bank;
(b) any other trading names;
(c) the investment bank’s nominated capital and the amount of capital paid up;
(d) the address of the investment bank’s registered office;
(e) an email address for the investment bank;
(f) the identity of the person (or persons) nominated for appointment as administrator; and
(g) a statement setting out which of the grounds in regulation 6(1) the applicant is relying on in making the application.
Statement of proposed administrator
7. An application must be accompanied by a statement by the proposed administrator—
(a) specifying the name and address of the person (or each person) proposed to be appointed;
(b) giving that person’s (or each person’s) consent to act;
(c) giving details of that person’s (or each person’s) qualification to act as an insolvency practitioner; and
(d) giving details of any prior professional relationship that the person (or any of them) has had with the investment bank.
Lodging of application
8. The application, and its accompanying documents, must be lodged with the court.
Service of application
9.—(1) The application shall be served on—
(a)
(a) the FSA (if not the applicant);
(b)
(b) the investment bank (if neither the investment bank nor its directors are the applicant);
(c)
(c) the person (or each of the persons) nominated for appointment as administrator;
(d)
(d) any person who has given notice to the FSA in respect of the investment bank under regulation 8;
(e)
(e) if there is in force for the investment bank a voluntary arrangement under Part 1 of the 1986 Act, the supervisor of that arrangement;
(f)
(f) the registrar of companies; and
(g)
(g) the Keeper of the Register of Inhibitions and Adjudications for recording in that register.
(2) Notice of the application shall also be given to the persons upon whom the court orders that the application be served.
Expenses
10. If the court makes a special administration order, the expenses of the applicant, and of any other party whose expenses are allowed by the court, shall be regarded as expenses of the special administration.
Notice of special administration order
11.—(1) If the court makes a special administration order, the applicant shall immediately after the order is made, send a certified copy of the order to—
(a)
(a) the administrator; and
(b)
(b) the FSA (if not the applicant).
(2) If the court makes an order under regulation 7(1)(d), or any other order under regulation 7(1)(f), it may direct (or give directions as) to whom, and how, notice of that order is to be given.
CHAPTER 2
Application for a special administration (bank insolvency) order
Application for a special administration (bank insolvency) order
12.—(1) An application for a special administration (bank insolvency) order under section 95 of the 2009 Act (as applied by Schedule 1 to the Regulations) shall be in accordance with this Chapter and Chapter 74 of the Rules of the Court of Session 1994.
(2) In this rule, “Rules of the Court of Session 1994” means those rules set out in Schedule 2 to the Act of Sederunt (Rules of the Court of Session 1994) 199411.
Persons entitled to copy of application
13.—(1) Every contributory, creditor or client of the investment bank is entitled to a copy of the application on request from the applicant.
(2) The applicant shall respond to any request for a copy of the application as soon as reasonably practicable after the application has been made on payment of the appropriate fee.
Appointment of administrator by the court
14.—(1) This rule applies where an application is made for a special administration (bank insolvency) order.
(2) The court shall not make the order unless there is lodged in court a statement to the effect that—
(a)
(a) the person proposed to be appointed as the administrator is qualified to act as an insolvency practitioner in accordance with section 390 of the 1986 Act; and
(b)
(b) that person consents so to act.
(3) When the special administration (bank insolvency) order has been made, the court shall immediately send a certified copy of the order to—
(a)
(a) the person appointed as administrator under the order (who shall also, where practicable, be sent an electronic copy of the certified copy of the order); and
(b)
(b) the applicant.
(4) The administrator shall immediately—
(a)
(a) serve a copy of the order on the investment bank...
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