A fundamental requirement of the Bank for International Settlements," "Basic principles for the systematic Important Payment Systems" is to ensure that payments and settlements, through the critical systems have the full protection of the law. This means that the payments and settlements in a Real Time Gross Settlement System should be final and irrevocable at the moment they are processed by the payment or settlement system itself, in other words, in "real time". "To ensure that the payment or settlement has also resulted in protection against the effects of the "zero hour" on the basis of insolvency.
In most countries in bankruptcy law from the beginning of the day (ie midnight) from the date of insolvency or incapacity is declared - that the "zero hour". This presents a challenge to the concept of finality and irrevocability in real time.
One solution is to legally "" override "the" zero hour "for certain payments and settlement systems. One way to do this, "" describe "certain payments and settlement systems as exempt the" zero hour "" bankruptcy rule. The bankruptcy of such systems, usually only from the day after the date of insolvency.
The European Union (EU) makes extensive use of the name of the approach to the stability and the protection of the payment, settlement and securities settlement systems. The legal basis for the designation of this approach is the Directive 98/26/EC of the European Parliament and the Council of 19 May 1998 on settlement finality in payment and securities settlement systems.
In the spirit of the directive is required if the designation;
• The reduction of systemic risk requires the finality of settlement and the enforceability of collateral (paragraph 9).
• Payment orders and their netting must be legally enforceable (§ 11).
• It is necessary to ensure that the payment can not be revoked after a moment under the rules of the system (§ 14).
• insolvency procedures should not retroactively to the rights and obligations of participants in a system (para. 16).
• provision of security to be insulated from the effects of bankruptcy to the insolvent participant (§ 18).
This is fully in line with the main reasons from other non-EU countries for the title - namely, that:
• Payment must be finality against retroactive Insolvenzrecht
• Payment netting (both bilateral and multilateral) must be legally recognized and must be protected against retroactive Insolvenzrecht
• Collateral pledged to payment and securities settlement systems are not feasible and must have a prior lien on it in respect to the current bankruptcy law.
Criteria for the designation - the Directive (as defined in Article 2 A) enables EU member states to designate as a system, a formal agreement (at least 3 participants), whose activity consists in carrying out the transfer (payment) contracts or any system as a formal agreement between only two participants, if that Member considers that such a designation is justified on grounds of systemic risk. In other words, the competent authorities in each country can decide whether the name must.
In general, to protect the system against the problems stated above are the main criteria for the designation and no idea of a total value of transactions through the system. This is reflected in the published reason for the recent appointment of BACS Electronic Funds Transfer System in the United Kingdom to ensure that the standard order (ie, the loss sharing arrangement) can be enforced (Payment System Oversight Services report. Bank of England: 2005).
Scope of the Directive - the Directive, to the two members of the EU and EU candidate countries.
Using the designation - currently 107 separate systems were identified, of which 49 payment and 58 are securities settlement systems. In this list are 22 retail payment systems in 15 countries for check and electronic payment systems.
Designated types of payment - While both RTGS systems and securities settlement systems are systematically Important Payment Systems (SIPS) in the BIS Core Principles ", the name was also in many retail systems - including checks and electronic funds transfer (electronic debit / Have systems) on the grounds of ensuring the finality of settlement (legality of netting and the protection of regular Insolvenzrecht).
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