DRAFT
IN THE MATTER OF
IRISH BANK RESOLUTION CORPORATION LIMITED (IN LIQUIDATION)

AND IN THE MATTER OF THE
COMMISSIONS OF INVESTIGATION ACT 2004

Draft Terms of Reference for Commission of Investigation
[Editors note – these terms are in draft only and require to be settled in due
course]

1.

2.

On the [ ] day of June, 2015, by an Order of the Government made
under Section 3 of the Commissions of Investigation Act, 2004, a
Commission of Investigation has been established for the purpose of
investigating issues of significant public concern relating to:
(a)

Perform a review of certain activities of IBRC (the “Review) and
produce a report (the “Report”) setting out the findings of the
Review regarding certain activities of IBRC,

(b)

provide the report to Government,

(c)

for that purpose, obtain any necessary external advices or
assistance and ensure that any actual or perceived conflicts of
interest which may arise are properly managed in connection with
the Review, and

(d)

comply with the terms of this Order as expediently as possible and
subject to the timeframe indicated in paragraph 6 below.

The Commission is directed to investigate and to make a report to the
Government in accordance with the provisions of Section 32 of the

 Commissions of Investigation Act, 2004 (No. 23 of 2004) on the
following matters:
The scope, purpose and form of the review and report are to be
undertaken in respect of the following terms of reference.
(a)

Scope
The review shall consider all transactions, activities and
management decisions, other than those relating solely to the
acquisition of assets by the National Asset Management
Agency, which occurred between 21 January 2009 (being the
date of the nationalisation of IBRC) and 7 February 2013
(being the date of the appointment of the Special Liquidators
to IBRC) (the “Relevant Period); and which either:

(b)

(A)

resulted in a capital loss to IBRC of at least
€10,000,000 during the Relevant Period, whether by
consequence of a single transaction or of a series of
transactions relating to the same borrower or entities
controlled by the same borrower (“Relevant WriteOffs); or

(B)

are specifically identified by the Commission as
giving rise or likely to give rise to potential public
concern, in respect of the ultimate returns to the
taxpayer.

Purpose
(i)

The review shall investigate, in relation to each such
decision, transaction and activity within the scope of the
review:
(A)

the processes, procedures and controls which were
operated by IBRC in relation to the Relevant WriteOffs to ascertain whether the appropriate internal
IBRC governance procedures and controls were
adhered to in respect of the transactions under review
and whether the said procedures and controls were fit
for purpose,

(B)

whether there is prima facie evidence of material
deficiencies in the performance of their functions by
those acting on behalf of IBRC, including the IBRC

 board, directors, management and agents, in respect of
any transactions, activities and management decisions
identified in 2(a) A and B above.

(c)

whether it can be concluded from the information
available within the Bank and relevant evidence and
witness testimony as appropriate that the transactions
were not commercially sound in respect of the manner
in which they were conducted, the decisions made and
the outcomes achieved having regard to the purposes
of the IBRC Act 2013 set out in section 3 thereof,

(D)

examine whether the interest rates or any extension to
interest rates or any periods for re-payments were
given by IBRC on preferential terms that were unduly
favourable to any borrower, where those interest rates
resulted in a differential of more than €4 million in
interest due over the standard applicable interest rates
for loans of that nature.

(E)

investigate whether, in respect of any transaction
under investigation, any unusual share trading
occurred which would give rise to an inference that
inside information was improperly provided to or used
by any persons, and in the event that such an inference
does arise whether any such information was actually
improperly provided or used.

Form
(i)

3.

(C)

A report is to be produced in relation to the review, which:
(A)

is to set out the scope and findings of the review in
fulfilment of the purposes; and

(B)

is to respect obligations of confidentiality and to
respect commercial sensitivity where those are not
incompatible with the public interest.

To report on any other matters of concern arising from its investigation
of the above matters and to make any further recommendations as the
Commission sees fit.

 4.

The Commission shall exercise discretion in relation to the scope and
intensity of the investigation it considers necessary and appropriate,
having regard to the general objective of the investigation.

5.

The Government has appointed the Honourable Mr. Justice [ ], Judge
of the [ ] Court, to act as the Sole Member of the Commission of
Investigation.

6.

The Commission of Investigation is directed to conduct the task
assigned to it under these Terms of Reference and to report to the
Government no later than the 31st December 2015, subject to section
6(6) of the Commissions of Investigation Act, 2004.