* Private lenders queue for deal approvals for up to a year
* Central bank imposes ultra-stringent regulation
* Investors required to sign big boy letters even in secondary
By Christopher Langner
SINGAPORE, Dec 3 (IFR) - The board of Metrobank, the largest bank in the Philippines, tweaked a resolution authorising the issuance of Basel III compliant capital notes last week, but foot-dragging by the banking regulator means its efforts may have been in vain.
A deal by Metrobank is still a long way from happening. The transaction is stalled partly because the Bangko Sentral ng Pilipinas, which doubles as central bank and regulator, has yet to approve the sale.
Bangko Sentral also has placed onerous regulations around Basel III-compliant subordinated debt issuance that has stymied investor participation in the Philippine bank capital market.
It is not just Metrobank. Other private banks are seeking the green light to increase their capital via subordinated bonds that meet the new bank capital guidelines, which call for investors to share losses with issuing banks if they are declared non-viable. Rizal Commercial Banking Corporation has been waiting for almost a year for the central bank's go-ahead.
Metrobank's board made its move just three weeks after the Development Bank of the Philippines printed a Basel III deal. It was the first offering from the country that meets the new standards, which means the bonds could be written down to zero. From January 1, any bank-issued subordinated bonds that are not structured this way will not count towards capital.
But DBP is the only bank so far to have issued Basel III subordinated paper under the new system. Being fully owned by the government, it avoided the delays private lenders face getting approval for their Basel III-compliant offerings.
Coordinated by Standard Chartered and co-arranged by BPI, PNB and Deutsche Bank, the deal attracted strong interest from local investors.
Still, DBP had to find a solution to what bankers and lawyers are calling overzealous regulation by the Bangko Sentral ng Pilipinas.
In February, the regulator issued Circular 786, which requires any investor intending to buy subordinated bonds with loss-absorption clauses to sign a big boy letter - an agreement that seeks to limit liability by restricting the right to sue over non-disclosure of material information.
Additionally, investors may be required to undergo suitability tests.
Nestor Espenilla, Jr., deputy governor of Bangko Sentral ng Pilipinas, defended the regulator's stance, by saying it is necessary to protect investors.
"As a consumer protection matter, BSP finds it appropriate to have in place Circular 786 to complement our Basel 3 implementation framework both to ensure that retail investors in the Philippines are adequately informed of their possible risk exposures, and to minimize potential mis-selling of comparatively high yield hybrid, innovative instruments in a generally low interest rate environment," he said by email.
"As a regulator, we believe in striking an appropriate balance between the interests of banks and their customers in the context of market-based rules," he added.
"I cannot think of any other country in the world that has such regulation in place," said a lawyer in Hong Kong who specializes in debt capital markets.
The circular's investor protection rules, however, are only applicable to Basel III transactions distributed onshore, Espenilla said.
"Those distributed offshore are covered by applicable rules in the offshore jurisdiction - our banks now understand this," he explained.
But lawyers said the wording on the regulation itself leaves it open to discussion. The February circular suggests even buyers in the secondary market would be required to sign risk disclosure statements.
"I am pretty sure it applies to secondary as well," said the Hong Kong lawyer. Indeed, in a clarification issued in March, the central bank stated that the requirements in the circular "are applicable to all prospective investors in Additional Tier 1 and Tier 2 capital instruments." The regulator bolded the word 'all' to ensure there was no doubt over its meaning.
It is no wonder that Metrobank amended its original plans. The bank had mandated JP Morgan and UBS and even met some investors earlier in the year with eyes set on issuing US$500m in Tier 2 bonds in the offshore market. Now it is considering issuing at home.
As DBP proved, depending on how well a bank is known, it may be easier to get investors in Manila to jump through all the hoops required by the central bank.
Even at home, though, Metrobank still needs regulatory approval to go ahead. And that has been a very slow process.
Ultimately, one banker in the Philippines said, the reason for the drawn-out consent and excessive regulation is to safeguard the Central Bank itself.
"They have a history of being sued by disgruntled investors claiming they should have not allowed certain securities to be sold. Given these bonds can be fully written-down, the [central bank] wants to be absolutely sure it is not liable before letting anyone in the Philippines invest in the bonds," said the banker.
DBP did not face that issue because it is state owned. So, the banker said, the government will not let it fail, especially if it can be sued for doing so. "This really puts private banks at a disadvantage to government banks," said the treasurer.