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The value of insolvency safe harbours

Paech, Philipp (2015) The value of insolvency safe harbours. LSE Law, Society and Economy Working Paper Series, 9. The London School of Economics and Political Science, London, UK.

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Identification Number: 10.2139/ssrn.2578521

Abstract

‘Safe harbour’ is shorthand for a bundle of privileges in insolvency which are typically afforded to financial institutions. They are remotely comparable to security interests as they provide a financial institution with a considerably better position as compared to other creditors should one of its counterparties fail or become insolvent. Safe harbours have been introduced widely and continue to be introduced in financial markets. The common rationale for such safe harbours is that the protection against the fallout of the counterparty’s insolvency contributes to systemic stability, as the feared ‘domino effect’ of insolvencies is not triggered from the outset. However, safe harbours are also criticised for accelerating contagion in the financial market in times of crisis and making the market more risky. This paper submits that the more important argument for the existence of safe harbours is liquidity in the financial market. Safe harbour rules do away with a number of legal concepts, notably those attached to traditional security, and thereby allow for an exponentiation of liquidity. Normative decisions of the legislator sanction safe harbours as modern markets could not exist without these high levels of liquidity. To the extent that safe harbours accelerate contagion in terms of crisis, which in principle is a valid argument, specific regulation is well suited to correct this situation, whereas a repeal or significant restriction of the safe harbours would be counterproductive.

Item Type: Monograph (Working Paper)
Official URL: http://www.lse.ac.uk/collections/law/wps/
Additional Information: © 2015 Philipp Paech
Divisions: Law
Subjects: H Social Sciences > HD Industries. Land use. Labor > HD61 Risk Management
H Social Sciences > HG Finance
K Law > KZ Law of Nations
Sets: Departments > Law
Date Deposited: 15 Apr 2015 11:12
Last Modified: 09 Sep 2019 23:26
URI: http://eprints.lse.ac.uk/id/eprint/61591

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