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34 2009

National Asset Management Agency Act 2009

Chapter 2

Review of Valuations

Appointment of valuation panel.

119 .— (1) There shall be a valuation panel to adjudicate on disputes referred to it by NAMA under section 122 (3).

(2) The valuation panel shall consist of persons that the Minister appoints to be members of it. The Minister may determine how many members there shall be, but there shall not be more than 12 members.

(3) The Minister shall appoint a person as a member of the valuation panel only if the Minister is of the opinion that the person has relevant expertise or specialist knowledge.

(4) Without prejudice to the generality of subsection (3), a person has relevant expertise or specialist knowledge if he or she is qualified, or has experience at a senior level, in any one or more of the following:

(a) finance and economics;

(b) law;

(c) accountancy and auditing;

(d) public administration;

(e) project finance;

(f) construction and land development;

(g) property management and sale;

(h) valuation;

(i) urban and land planning;

(j) banking and investment;

(k) insolvency and restructuring.

(5) The terms and conditions of appointment (including remuneration and reimbursement of expenses incurred) of a member of the valuation panel shall be as the Minister determines.

Procedure of valuation panel.

120 .— (1) The Minister may make regulations providing for the procedure of the valuation panel and any matters relating to the review to be carried out.

(2) Subject to any regulations made by the Minister under subsection (1), the valuation panel shall determine, in its sole discretion, procedures for—

(a) the form and type of submissions to be made to the valuation panel,

(b) the means by which confidential information will be protected from public disclosure, and

(c) the performance of any of the valuation panel’s functions.

(3) Without prejudice to subsection (1), the valuation panel may, if it thinks that it is appropriate to do so, conduct a review of the valuation of an acquired portfolio on the basis of a sample of the bank assets in the acquired portfolio concerned and if it does so, the advice to the Minister under section 124 shall be based on that sample and shall be as valid, for all purposes of this Chapter, as if it had been determined in relation to all the assets in the acquired portfolio.

Objection to value placed on bank assets acquired from participating institution.

121 .— (1) If, after the service on a participating institution of an acquisition schedule, a participating institution objects to the acquisition value specified in that schedule in relation to a bank asset, the participating institution shall serve on NAMA a notice in writing of its objection invoking the provisions of this Chapter within 14 days after the service on it of the acquisition schedule.

(2) On receipt of a notice under subsection (1), NAMA may—

(a) remove the bank asset concerned from the relevant acquisition schedule,

(b) revoke the acquisition schedule, or

(c) continue with the acquisition in accordance with the acquisition schedule.

(3) NAMA shall notify the participating institution as soon as may be of its decision under subsection (2).

(4) Where NAMA continues with an acquisition in accordance with the acquisition schedule concerned, the participating institution may dispute only the total portfolio acquisition value and may do so only as provided for and in accordance with section 122 , and is not otherwise entitled to dispute the valuation of any particular acquired bank asset.

(5) A participating institution is not entitled to challenge any valuation of NAMA including a total portfolio acquisition value, other than in accordance with this Chapter.

Dispute over total portfolio acquisition value.

122 .— (1) If, after service of a completion notice on a participating institution, the participating institution wishes to dispute the total portfolio acquisition value, it shall do so only if—

(a) it is of the opinion that the aggregate market value of the acquired portfolio exceeds the total portfolio acquisition value, and

(b) it has served a notice or notices under section 121 in relation to acquired bank assets comprising at least 12.5 per cent by value of the total portfolio acquisition value.

(2) A participating institution that wishes to dispute the total portfolio acquisition value shall serve on NAMA a notice in writing, in the form (if any) that the Minister prescribes by regulation, no later than 14 days after the service of the relevant completion notice, specifying the reasons for its opinion.

(3) If a participating institution serves notice under subsection (2), NAMA shall refer the dispute to the valuation panel for review.

(4) The service of notice by a participating institution under subsection (2) does not affect the acquisition by NAMA of the bank assets concerned.

Material, etc., to be made available to valuation panel.

123 .— (1) A participating institution that has served a notice under section 122 (2) shall provide to the valuation panel and to NAMA, no later than 28 days after service of the relevant completion notice, all the material on which its dispute is based and any comments it wishes to make regarding the disputed total portfolio acquisition value.

(2) For the purposes of the valuation panel’s review, NAMA shall make available to the valuation panel and the participating institution concerned, no later than 28 days after service on it of the relevant notice under section 122 (2), the information on which NAMA based its determination of the market value of bank assets in the acquired portfolio concerned and any comments it wishes to make on the dispute.

(3) NAMA and the participating institution shall each be allowed an opportunity to respond to the other’s material and comments, and shall furnish any such responses, no later than 7 days after that material and those comments have been made available, to the valuation panel and to the participating institution or NAMA, as the case may be.

(4) The valuation panel may request NAMA or a participating institution to provide additional information in relation to the total portfolio acquisition value of the acquired portfolio concerned. NAMA or a participating institution shall comply with any such request without delay.

(5) The valuation panel shall take into account the material, comments, responses and any relevant additional information provided by the participating institution and NAMA.

Review by valuation panel.

124 .— (1) The function of the valuation panel is to review whether the aggregate market value of an acquired portfolio is correct. In carrying out that review, the test to be applied by the valuation panel is whether the participating institution concerned has established, as a matter of probability, and taking into account the degree of expertise and specialist knowledge possessed by NAMA, and taking the process as a whole, that the determination of the aggregate market value was vitiated by a serious and significant error or a series of such errors.

(2) For the avoidance of doubt, for the purposes of a review under subsection (1), the market value of an acquired bank asset is its market value as at the date or event specified by NAMA under section 73 .

(3) The valuation panel shall advise the Minister of its determination, including of the aggregate market value, and the reasons for it.

(4) The panel shall give its advice to the Minister in relation to a dispute under section 122 no later than 90 days after receiving the material, comments, responses and any additional information under section 123 , or a longer period specified by the Minister by notice in writing, if he or she considers that to do so is warranted by exceptional circumstances.

Minister’s determination.

125 .— (1) The Minister shall consider the advice of the valuation panel under section 124 in relation to the acquired portfolio concerned and shall, no later than 28 days after receipt of that advice—

(a) confirm the aggregate market value of the acquired portfolio as advised by the valuation panel, or

(b) if the valuation panel’s determination of the aggregate market value is greater than the total portfolio acquisition value and he or she considers that the advice of the valuation panel is wrong in a material respect, remit the matter to the valuation panel for reconsideration setting out his or her reasons for doing so.

(2) Where the Minister remits the matter to the valuation panel under subsection (1) (b), subsections (4) and (5) of section 123 and section 124 apply to the reconsideration with any necessary modifications.

(3) The Minister shall send copies of his or her determination under subsection (1) to NAMA and to the participating institution concerned.

(4) Where the Minister confirms that the aggregate market value of the acquired portfolio is greater than the total portfolio acquisition value as determined by NAMA, the Minister shall direct NAMA to compensate the participating institution by, at NAMA’s option, doing either of the following (or both in any combination)—

(a) returning to the participating institution bank assets equal in value to the difference between the total portfolio acquisition value determined by NAMA and the aggregate market value determined by the Minister, or

(b) giving further consideration to the participating institution (in the form of cash, securities or Government-guaranteed securities or in any other form that NAMA considers appropriate) equal to the difference referred to in paragraph (a).

(5) The amount of compensation payable to a participating institution under subsection (4) is to be no greater than the amount by which the total portfolio acquisition value determined by NAMA is less than the aggregate market value of the portfolio as confirmed by the Minister.

(6) The value of a bank asset to be returned under subsection (4) (a) is its acquisition value.

(7) The payment for, or transfer of, bank assets under subsections (4) to (6) is subject to the laws of the European Communities governing State aid.

Withdrawal of dispute.

126 .— A participating institution may withdraw a notice served under section 122 at any time before the Minister sends a copy of his or her determination to it under section 125 in relation to the review of the total portfolio acquisition value of the acquired portfolio concerned.

Costs of review of valuations.

127 .— (1) The costs of a review under this Chapter are payable by the participating institution concerned unless the Minister’s determination under section 125 entitles the participating institution to compensation under that section.

(2) If a participating institution withdraws a notice under section 126 , it is liable for the costs incurred up to the time of the withdrawal unless NAMA agrees otherwise.

(3) If NAMA and the participating institution concerned cannot reach agreement on costs, the costs of the review shall be determined by a Taxing Master of the Court. For that purpose, the Taxing Master has all the functions for the time being conferred on him or her under any enactment or in any rules of court (with any necessary modifications) in relation to the taxation of costs to be paid by one party to another in proceedings before the Court.