The Financial Services Commission(FSC) pronounced the revising draft of the Capital Market Act, July 27, 2011. The draft newly introduces the contingent capital instrument, which is the hybrid capital and equity linked instrument that is automatically converted into the issuer"s share capital at certain pre-defined trigger points. The contingent capital instrument has been converged very much to the fore two or three years in some large European banks. For example it was reported that the instrument issued by Lloyds Bank will convert into ordinary shares if the consolidated core tier 1 ratio of Lloyds falls below 5%. But the instrument has never been wellknown to the general industries except for the banks in Europe as well as in other countries, although there appear to be no major obstacles from a legal perspective.
The revising draft is willing to introduce the instrument to all of the listed companies including listed Banks for the companies" flexibility of raising capital. According to the draft, listed companies can issue at the pre-defined triggering events based on the objective and reasonable standards, which are supposed to be explicitly defined in detail by the decree. But there seem to be some legal ambiguity and uncertainty under the standards prescribed in the article, and be some concerns that the instrument has possibilities to be abused for defending against the would-be hostile M&As or succession of controlling shareholder"s managing power, which is beyond the main purpose of raising funds to be pursued in the draft.
In this paper, to begin with, a general definition and legal characteristic of the contingent capital instrument and its legal system under the French Commercial Code are reviewed in detail, and then some comments to the draft are given. And also some legislative recommendations are suggested as follows. Firstly, all of the listed companies should be able to issue the instrument including banks and the banking law should be also revised for the unlisted bank"s issuance for it. Secondly, the objective and reasonable test as a general standard for its issue in the draft and the pre-defined triggering points should be amended in detail in accordance with natural purpose of the contingent capital instrument, namely loss absorbency benefits in times of stress and also in harmonization with the purpose of raising capital. Thirdly, the conversion price with the future share market conditions should be based on the stock market price at the time of its conversion, not at the time of its issuance. Lastly, the forfeited instruments emerged in the process of issuance to all the shareholders, even-though there are pre-agreements between the issuer and offeror-shareholder to re-subscribe the forfeited instruments, should be cancelled in the same way as in the case of share allotment and alloted to the public by public offering.