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Corporate Governance: The Missing Paradigm in the Mandatory Bail-in Regime for Creditors of Banks and Financial Institutions

Mandatory bail-in is set to become an important part of any process relating to the resolution of banks and financial institutions. This paper supports the public interest arguments underlying mandatory bail-in but argues that it is necessary to consider how bail-inable debt-holders’ interests and concerns should be addressed. The paper argues in support of a limited range of ex ante corporate governance rights for bail-inable debt-holders as a matter of principle as well as being instrumental for the fair and orderly implementation of mandatory bail-in. Such corporate governance rights may be framed in soft law. This paper argues that the scope of such rights could be shaped according to the interface between bail-inable debt-holders’ private interests which justify their corporate governance role, and the public interest in orderly resolution that affects the scope of such rights.