Analyse de l’arrêt du TAF sur les AT1 de Credit Suisse
Fabien Liégeois
, Adrien Alberini
— 22 avril 2026
While the decision is methodically structured, and commendably confronts the hybrid nature of AT1 instruments at the intersection of private and public law, its reasoning ultimately reveals substantial analytical weaknesses. First, the Federal Administrative Court attributes excessive weight to specific indicia (particularly single communications) when assessing both the parties’ intent and the authorities’ reactions during the critical days of March 2023, including the order to write down AT1s. Second and more fundamentally, the Federal Administrative Court underestimates the significance of the regulatory context in its interpretation of the contract and overestimates the sufficiency of the ordinary legal tools available to the authorities. With respect to contractual interpretation, AT1 instruments were introduced as part of the post-2008 crisis architecture with the specific aim of reducing the public cost of resolving systemically important banks, a function reflected in their risk profile and yield expectations ; these aspects would have justified abandoning a subjective approach in favor of an objective interpretation in the case at hand. From a public law perspective, the Court overestimates the completeness of the existing TBTF regime. In particular, the Federal Administrative Court overlooks the fact that the Public Liquidity Backstop mechanism is not provided by the current TBTF regulatory framework. Accordingly, both the interpretation of the relevant contractual clause and the assessment of the authorities’ response called for a functional approach reflecting the role of AT1 instruments and the scale of the systemic risk involved.
Consulter
