Those AT1 (CoCo Bond) holders get nothing yet common equity holders get something. How does that work?
AT1 bonds (not only Cocos) can be written down in two scenarios: a "Contingency Event" or a "Viability Event".
- In a Contingency Event: the instruments are written down if the CET1 ratio goes below a High Trigger (7%) or Low Trigger (5.125%) depending on the instrument. The CET1 ratio of CS (quite high) did not reach the trigger level. So most likely FINMA (the swiss regulator) relied on the "Viability Event" (we don't know the rationale for sure).
- In a Viability Event the regulator has more flexibility to determine that AT1 should be written down but there are still conditions that must be met. Among key conditions to trigger a Viability Event there should be extraordinary support from the Public Sector in conjunction with this support having the impact of improving capital adequacy. Frankly personally, I think there is a lot to argue the conditions were not met. In layman's terms, how do you say that CS is an unviable business if you sell it for $3bn and continue paying bonuses?
Irrespective of the actual legal rationale, there is also the spirit of the Law. And it is clear that wiping out AT1s and not equity goes against the usual hierarchy of the capital structure. I can imagine plenty of legal proceedings (incl. misselling to Asian PW clients).
When Banco Popular AT1s were wiped out, it created fewer issues in the AT1 market because (1) it was smaller in size and (2) equity holders were also impaired.
Whatever the outcome of all these legal proceedings I see two consequences:
1- Swiss reputation is badly damaged. Their legal framework is seen as unstable. They changed plenty of laws late on Sunday. It would be impossible for their banks to issue AT1s. They didn't maintain a stable and clear regulatory framework at a crucial moment.
2- Funding costs for banks and their cost of equity will significantly increase. AT1s were quite useful but even after the move by other regulators/CBs (ECB, BOE, etc.) to calm the markets, investors will ask (and are already asking) for a premium.