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====Flawed Assets====
{{quote|
{{quote|
{{d|Flawed asset|/flɔːd ˈæsɛt/|n}}
{{Script|Herculio}}: I have a thought. This meagre tract: not ninety words <br>
A financial asset that looks good, but thanks to a carefully buried [[conditions precedent]], is not there when you, and more importantly, your insolvency administrator, wants it.}}
Wrapp’d about with preliminal nicety and <br>
Stamp’d as for affixation to a [[boilerplate|servic’d boiler]] —<br>
Conceals a clever trick. <br>
{{script|Ser Jaramey}}: What kind of onion’d witchery is this? <br>
:—{{otto}}, {{br|Ser Jaramey Slizzard}}}}
=== Assets, and flawed assets ===
What is the big deal about this, then? Well, it turns your ISDA into a “flawed asset”.
{{quote|{{d|Flawed asset|/flɔːd ˈæsɛt/|n|}}


{{drop|I|n the language}} of financial obligations, one’s rights to future payments under a contract are an asset. You own them and, all other things being equal, can ''deal'' with them — that is, sell or raise money against them — the same way you can sell or mortgage a house, car, a portfolio of equities, or some [[Bitcoin|decentralised cryptographic tokens representing abstract capital]]. ''[Really? — Ed.]''
A financial asset that looks good, but thanks to a carefully buried [[conditions precedent]], is not there when you, and more importantly, your insolvency administrator, most wants it.}}


“Assets” have a few “[[ontological]]” properties, one of which is ''continuity'', in time and space. They might rust, depreciate, go out of fashion or stop working properly but they are nevertheless, existentially, still ''there'', at least until you do sell them. They therefore have some value to you, however parlous the state of your affairs might otherwise be.  
{{drop|I|n the language}} of financial obligations, the right to future payments under a contract is an ''asset''. The creditor owns that right and, all other things being equal, can ''deal'' with it — that is, sell or raise money against it — the same way it can sell or mortgage a house, car, a portfolio of equities, or some [[Bitcoin|decentralised cryptographic tokens representing abstract capital]].


This makes accounting for assets possible, albeit difficult.  
Assets have certain “[[ontological]]” properties, such as ''continuity'' ''in time and space.'' They might rust, depreciate, go out of fashion or stop working properly but they are nevertheless, existentially, still ''there''. While you own them they therefore have some value to you, however parlous the state of your affairs might otherwise be.


==== Flawed Assets ====
Should your stars line up so that some official comes to be drawing up a closing account of your earthly financial existence — should you become [[Insolvency|''bankrupt'']], heaven forfend — your assets can reliably be popped onto the “plus” side of the ledger. The difficulty subsists in working out what they are worth, but at least they are there.
<blockquote><big>[[Flawed asset]]</big>


/flɔːd ˈæsɛt/ (''n''.)
This continuity is important to the administration of failing enterprises wherever they are based. It is a rude shock to find the assets you thought were there have without good explanation, gone. Many countries have rules preventing company managers from selling or giving away assets at an undervalue or otherwise granting unfair preferences as impending disaster looms. And nor can they enter contracts, even in times of fair weather, which would have the effect of granting unfair preferences, or depriving other creditors, should the clouds roll in.


A financial asset that looks good, but thanks to a carefully buried [[conditions precedent]], is not there when you, and more importantly, your insolvency administrator, wants it.</blockquote>In the language of financial obligations, one’s rights to future payments under a contract are an asset. You own them and, all other things being equal, can therefore ''deal'' with them that is, sell or raise money against them — the same way you can sell or mortgage a house, car, a portfolio of equities, or some [[Bitcoin|decentralised cryptographic tokens representing abstract capital]]. ''[Really? — Ed.]''
An asset that doesn’t have that quality of continuity: that suddenly isn’t there, or that has the unnerving quality of winking in and out of sight at inopportune moments — is thus somehow imperfect: “flawed”.  


“Assets” have a few “[[ontological]]” properties, one of which is ''continuity'', in time and space. Assets might rust, depreciate, go out of fashion or stop working properly but they are nevertheless, existentially, still ''there'', at least until you do sell them. They therefore have some value to you, however parlous the state of your affairs might otherwise be.
Section {{{{{1}}}|2(a)(iii)}} seems to have that effect on a {{{{{1}}}|Defaulting Party}}’s claims under an ISDA  —  its asset. Just when the {{{{{1}}}|Defaulting Party}} goes insolvent or fails to perform, the {{{{{1}}}|Non-defaulting Party}} is entitled to suspend the performance of its obligations without terminating the {{{{{1}}}|Transaction}}. Not entitled, even — as we will see, it just happens.


This makes accounting for assets possible, albeit difficult. Should your fates line up so that some official comes to be drawing up a closing account of your earthly financial existence — should you become ''[[Insolvency|bankrupt]]'', heaven forfend — your assets can reliability be popped onto the “plus” side of the ledger. The difficulty subsists in working out what they are worth, but at least they are there.
Should the {{{{{1}}}|Defaulting Party}} then cure the default, the {{{{{1}}}|Transaction}} resumes and the {{{{{1}}}|Non-defaulting Party}} must resume all its obligations, including the suspended ones. But for so long as the default is not cured, the {{{{{1}}}|Non-defaulting Party}} does not have to do anything. The {{{{{1}}}|Defaulting Party}} is left hanging there, with this “flawed asset”.


This continuity is important to the administration of failing enterprises wherever they are based, and so many countries have rules preventing company managers hurriedly disposing of their assets as impending disaster looms. Managers can’t therefore grant unfair preferences, by selling or giving away  assets at an undervalue. And they can’t enter contracts, even in times of fair weather, which might have the effect of giving some creditors and counterparties unfair preferences over others, should the clouds roll in.
=== Insolvency regimes: not keen. ===
{{drop|T|he United States}} [[Bankruptcy Code]] renders unenforceable terms terminating or modifying a contract that are triggered by the simple fact of insolvency proceedings. These are known as “[[ipso facto]]” clauses, because the simple ''fact'' of bankruptcy “in itself” triggers the clause.


<nowiki>Section {{</nowiki>{{{1}}}<nowiki>|2(a)(iii)}} has exactly that effect on a {{</nowiki>{{{1}}}<nowiki>|Defaulting Party}}’s claims under an ISDA. Just when it goes insolvent or fails materially to perform, its “asset” represented by the {{</nowiki>{{{1}}}<nowiki>|Transaction}}, perhaps temporarily, vanishes. It allows a {{</nowiki>{{{1}}}<nowiki>|Non-defaulting Party}} to indefinitely suspend its performance of its obligations under a {{</nowiki>{{{1}}}<nowiki>|Transaction}} without terminating the {{</nowiki>{{{1}}}<nowiki>|Transaction}}. Should the {{</nowiki>{{{1}}}<nowiki>|Defaulting Party}} cure the default, the {{</nowiki>{{{1}}}<nowiki>|Transaction}} resumes and the {{</nowiki>{{{1}}}<nowiki>|Non-defaulting Party}} must resume all its obligations, including the suspended ones. But for so long as the default is not cured, the {{</nowiki>{{{1}}}<nowiki>|Non-defaulting Party}} does not have to do anything but keeps the option to terminate (thereby crystallising the loss at any time.</nowiki>
If Section {{{{{1}}}|2(a)(iii)}} were an ipso facto clause, it would not be enforceable. Whether it ''is'' an [[ipso facto clause]] is a subject of vigorous but tiresome debate. For our purposes, that people don’t easily agree about it is all you need to know.


So an asset that doesn’t have that quality of continuity: that suddenly isn’t there, or that has the unnerving quality of winking in and out of existence at inopportune moments — especially at times of its owner’s existence fitfulness — is somehow imperfect: “flawed”. 
The UK has no statutory equivalent of America’s [[ipso facto rule]], but hundreds of years ago resourceful common law judges “discovered” an “anti‑deprivation” rule to the effect that, in the honeyed words of Sir William Page Wood V.C., in ''Whitmore v Mason'' (1861) 2J&H 204:{{quote|
 
====Insolvency regimes: not fans.====
{{drop|I|n the United}} States, there is a provision in the [[Bankruptcy Code]] rendering unenforceable any contract terms providing for termination or modification that are triggered by the simple fact of insolvency proceedings. These are known as “[[ipso facto]]” clauses, because the simple ''fact'' of bankruptcy “in itself” triggers the clause. If Section [[2(a)(iii) - ISDA Provision|2(a)(iii)]] were an ipso facto clause, it would not be enforceable.
 
Whether Section 2(a)(iii) ''is'' an [[ipso facto clause]] is a subject of vigorous but tiresome debate. For our purposes, the fact that people don’t easily agree about it is all you need to know: this makes a silly contractual provision even more cavalier.
 
While the UK has no statutory equivalent of America’s [[ipso facto rule]], hundreds of years ago resourceful common law judges “discovered” an “anti‑deprivation” rule that, in the honeyed words of Sir William Page Wood V.C., in ''Whitmore v Mason'' (1861) 2J&H 204:
{{quote|
“no person possessed of property can reserve that property to himself until he shall become bankrupt, and then provide that, in the event of his becoming bankrupt, it shall pass to another and not his creditors”.}}
“no person possessed of property can reserve that property to himself until he shall become bankrupt, and then provide that, in the event of his becoming bankrupt, it shall pass to another and not his creditors”.}}
This required some wilfulness on the bankrupt’s part and not just inadvertence or lucky hap, but still: if you set out to defeat the standing bankruptcy laws do not expect easily to get away with it.


This required some wilfulness on the bankrupt’s part and not just inadvertence or lucky hap, but still: if you set out to defeat the standing bankruptcy laws do not expect easily to get away with it.  
It seems, at any rate, that Section {{{{{1}}}|2(a)(iii)}}, ''might'' resemble some kind of intended deprivation; merely crystallising one’s existing position and stopping it from going further down the Swanee, as one might do by closing out altogether, seems less likely to.


It seems, at any rate, that Section {{{{{1}}}|2(a)(iii)}}, might resemble some kind of intended deprivation; merely crystallising one’s existing position and stopping it from going further down the Swanee, as one might do by closing out altogether, seems less so.  
Anyway: be aware: Section {{{{{1}}}|2(a)(iii)}} attracts insolvency lawyers.


Anyway: be aware: Talk of Section 2(a)(iii) attracts insolvency lawyers. That ought to be reason enough to keep schtum about it.
=== Rationale: avoiding a cleft stick ===
{{drop|W|e can have}} a fine time rabbiting away about the ontology of assets, but isn’t there a more basic question: why would a {{{{{1}}}|Non-defaulting Party}}, presented with a counterparty in default, ever ''not'' want to just close out?


====On avoiding a cleft stick====
It all comes down to [[Moneyness|''moneyness'']].
{{drop|W|w can have}} a fine time rabbiting away about the ontology of assets for sure, but isn’t there a more basic question: why would a Non-defaulting Party, presented with a counterparty in default, ever ''not'' want to just close out?


It all comes down to ''[[moneyness]]''. The “[[The bilaterality, or not, of the ISDA|bilaterality]]” of most derivatives arrangements means that either party may, net, be “[[out of the money]]” — that is, across all outstanding transactions, it would have to ''pay''<nowiki> a net sum of money if all transactions were terminated. This is a notional debt that only becomes “due” as such if you designate an {{</nowiki>{{{1}}}<nowiki>|Early Termination Date}} under the Master Agreement. So an </nowiki>[[out-of-the-money]]<nowiki> {{</nowiki>{{{1}}}<nowiki>|Non-defaulting Party}} has a good reason therefore </nowiki>''not''<nowiki> to close out the ISDA. Why should it have to pay out just because a {{</nowiki>{{{1}}}<nowiki>|Defaulting Party}} has failed to perform its end of the bargain? On the other hand, if it forebears from terminating against a bankrupt counterparty the {{</nowiki>{{{1}}}<nowiki>|Non-defaulting Party}} doesn’t want to have to continue stoically paying good money away to a bankrupt counterparty who isn’t reciprocating. </nowiki>
The “[[The bilaterality, or not, of the ISDA|bilaterality]]” of a swap transaction means that either party may, net, be “[[out of the money]]” — that is, it would have to ''pay'' a net sum of money were the Transaction terminated — at any time. Unless something dramatic happens, this “moneyness” is only a “notional” debt: it only becomes “due” if an {{{{{1}}}|Early Termination Date}} is designated under the Master Agreement.  


An [[out-of-the-money]], {{{{{1}}}|Non-defaulting Party}} seems to be, therefore, in a bit of a cleft stick.
So an [[out-of-the-money]], {{{{{1}}}|Non-defaulting Party}} has a good reason ''not'' to close out the ISDA. Doing so would oblige it to crystallise and pay out a mark-to-market loss. Why should it have to do that just because a {{{{{1}}}|Defaulting Party}} has failed to perform its end of the bargain?


Section {{{{{1}}}|2(a)(iii)}} allows the {{{{{1}}}|Non-defaulting Party}} the best of both worlds. The [[conditions precedent]] to payment not being satisfied, it can just stop performing, and sit on its hands and thereby not thereby crystallise the [[mark-to-market]] loss implied by its [[out-of-the-money]] position.  
On the other hand, the Defaulting Party is, er, ''ipso facto'', not holding up its end of the bargain. Just as our innocent Non-defaulting Party does not wish to realise a loss by terminating, nor does it want to have to stoically pay good money away to a Defaulting Party who isn’t paying anything back.


The {{{{{1}}}|Defaulting Party}}’s “asset” — its right to be paid, or delivered to under the {{{{{1}}}|Transaction}} — is “flawed” in the sense that its rights don’t apply for so long as ''the [[conditions precedent]] to payment are not fulfilled''.  
A cleft stick, therefore.


Conceivably you ''could'' invoke a flawed asset provision even if you were [[in-the-money]], but you would be mad to.
Section {{{{{1}}}|2(a)(iii)}} allows our {{{{{1}}}|Non-defaulting Party}} the best of both worlds. The [[conditions precedent]] to payment not being satisfied, it can just stop performing and sit on its hands — thereby neither crystallising its ugly [[mark-to-market]] position nor pouring perfectly good money away (which is a form of drip-feeding away that mark-to-market position, if you think about it).
====Which events?====
Exactly ''which'' default events can trigger a flawed asset clause will depend on the contract. Under the ISDA, {{{{{1}}}|Events of Default}} and even ''Potential'' {{{{{1}}}|Events of Default}} do, but {{{{{1}}}|Termination Event}}s and {{{{{1}}}|Additional Termination Event}}s do not.


This is because most Termination Events are softer, “hey look, it’s no-one’s fault, it’s just one of those things” kind of closeouts — but this is not really true of {{{{{1}}}|Additional Termination Event}}s, which tend to be credit-driven and girded with more “culpability” and “event-of-defaulty-ness”.  
So much so good for the {{{{{1}}}|Non-defaulting Party}}.  


This is, a bit dissonant, but there are far greater dissonances, so we park this one and carry on.
But the {{{{{1}}}|Defaulting Party}}’s “asset” — its contingent claim for its in-the-money position against the {{{{{1}}}|Non-defaulting Party}} — is compromised. This, for an insolvency administrator and all the {{{{{1}}}|Defaulting Party}}’s other creditors, is a bummer. It deprives them of the “asset” represented by the {{{{{1}}}|Transaction}}.


====2(a)(iii) in a time of Credit Support====
===Which events?===
Flawed assets entered the argot in a simpler, more (''less''?) peaceable time when two-way, zero-threshold, daily-margined collateral arrangements were an unusual sight. Nor, in those times, were dealers often of the view that they might be on the wrong end of a flawed assets clause. They presumed if anyone was going bust, it would be their client. Because — the house always wins, right? The events of [[Global financial crisis|September 2018]] were, therefore, quite the chastening experience.
{{drop|E|xactly ''which'' default}} events can trigger the suspension? Under the [[ISDA Master Agreement|ISDA]], {{{{{1}}}|Events of Default}} and even ''Potential'' Events of Default do, but {{{{{1}}}|Termination Events}} and {{{{{1}}}|Additional Termination Event}} do not. This is because ''most'' {{{{{1}}}|Termination Events}} are softer, “Hey look, it’s no one’s fault, it’s just one of those things” kind of events. This is not usually true of {{{{{1}}}|Additional Termination Events}}, though: they tend to be credit-driven, and girded with more “culpability” and “event-of-defaulty-ness”. So this is a bit dissonant, but there are far greater dissonances, so we park this one and carry on.


In any case without collateral, a {{{{{1}}}|Non-defaulting Party}} could, be nursing a large, unfunded [[mark-to-market]] liability which it would not want to pay out just because the clot at the other end of the contract had driven his fund into a ditch.  
[[JC]] has seen valiant efforts to insert {{{{{1}}}|Additional Termination Events}} to section {{{{{1}}}|2(a)(iii)}}, and ''Potential'' {{{{{1}}}|Additional Termination Event}}, a class of things that does not exist outside the laboratory, and must therefore be defined. All this for the joy of invoking a clause that is highly unlikely to ever come into play, and which makes little sense in the first place.


That was then: in these days of mandatory [[regulatory margin]], counterparties generally cash-collateralise their net market positions to, or near, zero each day, so a large uncollateralised position is a much less likely scenario. So most people will be happy enough just closing out: the optionality not to is not very valuable.
===Why the ISDA?===
====The problem with bilateral agreements====
{{quote|
{{Quote|
{{script|Herculio}}: All well-meant, good [[Triago]]. Be not sour —<br>These are not grapes.<br>
{{Script|Triago}}: Forsooth: it wears the colours of a fight. <Br>
{{script|Triago}}: Indeed not sir: rather, scrapes.<br>And scars and knocks — the job-lot doggedly sustained.<br>
A word-scape stain’d with tightly kernèd face<Br>
{{script|Herculio}}: (''Aside'') Some more than others. The odd one feigned.<br>
And girded round with fontish weaponry.<Br>
But come, Sir Tig: what unrests you here?<br>
{{Script|Herculio}} (''inspecting the document''): Verily, convenantry this dark<Br>
{{script|Triago}} (''waving paper''): A tract from a brother clerk in America.<br>
Speaks of litiginous untrust.<Br>
{{script|Herculio}}: Cripes abroad. Grim tidings?<br>
:{{Otto}}, {{dsh}}
{{script|Triago}}: Forsooth: it wears the colours of a fight.<br>
}}
A word-scape stain’d with tightly kernèd face<br>
As we have remarked before, most financing contracts are decidedly one-sided. One party — the dealer, broker, bank: we lump these various financial service providers together as ''The Man'' — provides services, lends money and manufactures risk outcomes; the other — the customer — ''consumes'' them.
And girded round with fontish weaponry.<br>
{{script|Herculio}} (''inspecting the document''): Verily, convenantry this dark<br>
Speaks of litiginous untrust.<br>
[[Otto Büchstein]], [[Die Schweizer Heulsuse|''Die Schweizer Heulsuse'']]}}Why, then, is this flawed assets business special to ISDA? ''Is'' it special to ISDA?


Generally, the customer presents risks to The Man, and not vice versa. In a loan, all the “fontish weaponry” is pointed in the same direction: the customer’s. It goes without saying that should the customer “run out of road”, The Man stands to ''lose'' something. What is to be done should ''The Man'' run out of road is left undetermined but implicitly it is unlikely, and not expected to change anything for the customer. Whatever you owe, you will continue to owe; just to someone else.
Normal financing contracts are, by nature, one-sided. Loans, for example. One party — the dealer, broker, bank: we lump these various financial service providers together as ''The Man'' — provides services, lends money and “manufactures” risk outcomes; the other — the customer — ''consumes'' them.


Though the ISDA is also, in practice, a “risk creation contract” and has these same characteristics, it is not, in ''theory'', designed like one. ''Either'' party can be [[out-of-the-money]], and either party can blow up. The ISDA’s fontish weaponry points ''both ways''.
So, generally, the customer presents risks to The Man, and not vice versa. If the customer fails, it can’t repay its loan. All the “fontish weaponry” is therefore pointed at the customer.


This presented dealers with an unusual scenario: what happens if ''you'' blow up when ''I'' owe you money? I might not want to crystallise my contract: that will involve me paying you a [[mark-to-market]] replacement cost I hadn’t budgeted for paying out just now. (This is less true in these days of mandatory [[variation margin]] — that is one of JC’s main objections — but the {{isdama}} was forged well before this modern era).
Though the ISDA is also a “risk creation contract” with these same characteristics, it is not designed like one. ''Either'' party can be out of the money, and either party can blow up. The fontish weaponry points ''both ways''.


The ISDA answers this with the [[flawed asset]]<nowiki>” provision of Section {{</nowiki>{{{1}}}<nowiki>|2(a)(iii)}}. This allows an innocent, but </nowiki>[[out-of-the-money]], party faced with its counterparty’s default, to not close out the ISDA, but just freeze its own obligations until the default situation is resolved.  
This presented dealers with an unusual scenario: what happens if ''you'' blow up when ''I'' owe you money? That could not happen in a loan.  It is less likely to happen under a swap these days, too, thanks to the arrival of mandatory [[variation margin]] — that is one of JC’s main objections — but the [[ISDA Master Agreement]] was forged well before this modern era.


There is an argument the flawed asset clause wasn’t a good idea even then, but a better one that it is a bad idea now, but like so many parts of this sacred, blessed form it is there and, for hundreds and thousands of ISDA trading arrangements, we are stuck with it.
There is an argument the flawed asset clause wasn’t a good idea even then, but a better one that it is a bad idea now, but like so many parts of this sacred, blessed form it is there and, for hundreds and thousands of ISDA trading arrangements, we are stuck with it.


Ask a chary credit officer what she thinks of Section {{{{{1}}}|2(a)(iii)}} and her eyes are sure to glister as she regales you with the countless times it's got her out of a scrape at the first sign of {{{{{1}}}|Potential Event of Default}}. Regulators are less enamoured, especially after the [[ global financial crisis]], and took some steps to impose at least as “use it or lose it” drop-dead point, but institutional inertia and the brick wall of reality has long since arrested that drift.
====Does not apply to {{{{{1}}}|Termination Events}}====
Since most {{isdama}}s that reach the life support machine in an ICU get there by dint of a {{{{{1}}}|Failure to Pay}} or {{{{{1}}}|Bankruptcy}} this does not, in point of fact, amount to much, but it is worth noting that while {{{{{1}}}|Event of Default}}s — and even events that are not yet but with the passing of time might ''become'' {{{{{1}}}|Events of Default}} — can, without formal action by the {{{{{1}}}|non-Defaulting Party}} trigger a {{{{{1}}}|2(a)(iii)}} suspension, a mere Section {{{{{1}}}|5(b)}} {{{{{1}}}|Termination Event}} — even a catastrophic one like an {{{{{1}}}|Additional Termination Event}} (such as a [[NAV trigger]], [[Key person clause|key person event]] or some such) — cannot, until the {{{{{1}}}|Transaction}} has been formally terminated, at which point it really ought to go without saying.
This might rile and unnerve [[credit officer]]s — by nature an easily perturbed lot — but given our arguments below for what a train wreck the whole {{{{{1}}}|2(a)(iii)}} thing is, those of stabler personalities will consider this in the round a good thing.
Nevertheless, the [[JC]] has seen valiant efforts to insert {{{{{1}}}|Additional Termination Events}} to section {{{{{1}}}|2(a)(iii)}}, and — ''quel horreur'' — ''Potential'' {{{{{1}}}|Additional Termination Event}}s, a class of things that does not exist outside the laboratory, and must therefore be defined. All this for the joy of invoking a clause that doesn’t make any sense in the first place.
“Some things are better left unsaid,” said no [[ISDA ninja]] ever.
===Developments between editions===
===Developments between editions===
====“...a condition precedent for the purpose of this Section 2(a)(iii) ...”====
====“...a condition precedent for the purpose of this Section 2(a)(iii) ...”====
The {{2002ma}} trims back the third limb of Section 2(a)(iii) from “all other conditions precedent” to just those that specifically say they mean to be caught by Section {{isdaprov|2(a)(iii)}}. This a sensible restriction in scope as far as it goes (but JC would go further and remove Section 2(a)(iii) altogether).
The {{2002ma}} trims back the third limb of Section {{{{{1}}}|2(a)(iii)}} from “all other conditions precedent” to just those that specifically say they mean to be caught by Section {{{{{1}}}|2(a)(iii)}}. This a sensible restriction in scope as far as it goes (but JC would go further and remove Section 2(a)(iii) altogether).


We have heard the argument advanced — apparently on the authority of that [[FT book about derivatives]] — that this restricted third limb somehow conditions the other conditions precedent in the clause (i.e., that there is no ongoing PEOD or EOD and that the Transaction has not already been terminated):
We have heard the argument advanced — apparently on the authority of that [[FT book about derivatives]] — that this restricted third limb somehow conditions the other conditions precedent in the clause (i.e., that there is no ongoing PEOD or EOD and that the Transaction has not already been terminated):

Latest revision as of 10:31, 17 May 2024

Herculio: I have a thought. This meagre tract: not ninety words
Wrapp’d about with preliminal nicety and
Stamp’d as for affixation to a servic’d boiler
Conceals a clever trick.
Ser Jaramey: What kind of onion’d witchery is this?

Otto Büchstein, Ser Jaramey Slizzard

Assets, and flawed assets

What is the big deal about this, then? Well, it turns your ISDA into a “flawed asset”.

Flawed asset
/flɔːd ˈæsɛt/ (n.)

A financial asset that looks good, but thanks to a carefully buried conditions precedent, is not there when you, and more importantly, your insolvency administrator, most wants it.

In the language of financial obligations, the right to future payments under a contract is an asset. The creditor owns that right and, all other things being equal, can deal with it — that is, sell or raise money against it — the same way it can sell or mortgage a house, car, a portfolio of equities, or some decentralised cryptographic tokens representing abstract capital.

Assets have certain “ontological” properties, such as continuity in time and space. They might rust, depreciate, go out of fashion or stop working properly but they are nevertheless, existentially, still there. While you own them they therefore have some value to you, however parlous the state of your affairs might otherwise be.

Should your stars line up so that some official comes to be drawing up a closing account of your earthly financial existence — should you become bankrupt, heaven forfend — your assets can reliably be popped onto the “plus” side of the ledger. The difficulty subsists in working out what they are worth, but at least they are there.

This continuity is important to the administration of failing enterprises wherever they are based. It is a rude shock to find the assets you thought were there have without good explanation, gone. Many countries have rules preventing company managers from selling or giving away assets at an undervalue or otherwise granting unfair preferences as impending disaster looms. And nor can they enter contracts, even in times of fair weather, which would have the effect of granting unfair preferences, or depriving other creditors, should the clouds roll in.

An asset that doesn’t have that quality of continuity: that suddenly isn’t there, or that has the unnerving quality of winking in and out of sight at inopportune moments — is thus somehow imperfect: “flawed”.

Section {{{{{1}}}|2(a)(iii)}} seems to have that effect on a {{{{{1}}}|Defaulting Party}}’s claims under an ISDA — its asset. Just when the {{{{{1}}}|Defaulting Party}} goes insolvent or fails to perform, the {{{{{1}}}|Non-defaulting Party}} is entitled to suspend the performance of its obligations without terminating the {{{{{1}}}|Transaction}}. Not entitled, even — as we will see, it just happens.

Should the {{{{{1}}}|Defaulting Party}} then cure the default, the {{{{{1}}}|Transaction}} resumes and the {{{{{1}}}|Non-defaulting Party}} must resume all its obligations, including the suspended ones. But for so long as the default is not cured, the {{{{{1}}}|Non-defaulting Party}} does not have to do anything. The {{{{{1}}}|Defaulting Party}} is left hanging there, with this “flawed asset”.

Insolvency regimes: not keen.

The United States Bankruptcy Code renders unenforceable terms terminating or modifying a contract that are triggered by the simple fact of insolvency proceedings. These are known as “ipso facto” clauses, because the simple fact of bankruptcy “in itself” triggers the clause.

If Section {{{{{1}}}|2(a)(iii)}} were an ipso facto clause, it would not be enforceable. Whether it is an ipso facto clause is a subject of vigorous but tiresome debate. For our purposes, that people don’t easily agree about it is all you need to know.

The UK has no statutory equivalent of America’s ipso facto rule, but hundreds of years ago resourceful common law judges “discovered” an “anti‑deprivation” rule to the effect that, in the honeyed words of Sir William Page Wood V.C., in Whitmore v Mason (1861) 2J&H 204:

“no person possessed of property can reserve that property to himself until he shall become bankrupt, and then provide that, in the event of his becoming bankrupt, it shall pass to another and not his creditors”.

This required some wilfulness on the bankrupt’s part and not just inadvertence or lucky hap, but still: if you set out to defeat the standing bankruptcy laws do not expect easily to get away with it.

It seems, at any rate, that Section {{{{{1}}}|2(a)(iii)}}, might resemble some kind of intended deprivation; merely crystallising one’s existing position and stopping it from going further down the Swanee, as one might do by closing out altogether, seems less likely to.

Anyway: be aware: Section {{{{{1}}}|2(a)(iii)}} attracts insolvency lawyers.

Rationale: avoiding a cleft stick

We can have a fine time rabbiting away about the ontology of assets, but isn’t there a more basic question: why would a {{{{{1}}}|Non-defaulting Party}}, presented with a counterparty in default, ever not want to just close out?

It all comes down to moneyness.

The “bilaterality” of a swap transaction means that either party may, net, be “out of the money” — that is, it would have to pay a net sum of money were the Transaction terminated — at any time. Unless something dramatic happens, this “moneyness” is only a “notional” debt: it only becomes “due” if an {{{{{1}}}|Early Termination Date}} is designated under the Master Agreement.

So an out-of-the-money, {{{{{1}}}|Non-defaulting Party}} has a good reason not to close out the ISDA. Doing so would oblige it to crystallise and pay out a mark-to-market loss. Why should it have to do that just because a {{{{{1}}}|Defaulting Party}} has failed to perform its end of the bargain?

On the other hand, the Defaulting Party is, er, ipso facto, not holding up its end of the bargain. Just as our innocent Non-defaulting Party does not wish to realise a loss by terminating, nor does it want to have to stoically pay good money away to a Defaulting Party who isn’t paying anything back.

A cleft stick, therefore.

Section {{{{{1}}}|2(a)(iii)}} allows our {{{{{1}}}|Non-defaulting Party}} the best of both worlds. The conditions precedent to payment not being satisfied, it can just stop performing and sit on its hands — thereby neither crystallising its ugly mark-to-market position nor pouring perfectly good money away (which is a form of drip-feeding away that mark-to-market position, if you think about it).

So much so good for the {{{{{1}}}|Non-defaulting Party}}.

But the {{{{{1}}}|Defaulting Party}}’s “asset” — its contingent claim for its in-the-money position against the {{{{{1}}}|Non-defaulting Party}} — is compromised. This, for an insolvency administrator and all the {{{{{1}}}|Defaulting Party}}’s other creditors, is a bummer. It deprives them of the “asset” represented by the {{{{{1}}}|Transaction}}.

Which events?

Exactly which default events can trigger the suspension? Under the ISDA, {{{{{1}}}|Events of Default}} and even Potential Events of Default do, but {{{{{1}}}|Termination Events}} and {{{{{1}}}|Additional Termination Event}} do not. This is because most {{{{{1}}}|Termination Events}} are softer, “Hey look, it’s no one’s fault, it’s just one of those things” kind of events. This is not usually true of {{{{{1}}}|Additional Termination Events}}, though: they tend to be credit-driven, and girded with more “culpability” and “event-of-defaulty-ness”. So this is a bit dissonant, but there are far greater dissonances, so we park this one and carry on.

JC has seen valiant efforts to insert {{{{{1}}}|Additional Termination Events}} to section {{{{{1}}}|2(a)(iii)}}, and Potential {{{{{1}}}|Additional Termination Event}}, a class of things that does not exist outside the laboratory, and must therefore be defined. All this for the joy of invoking a clause that is highly unlikely to ever come into play, and which makes little sense in the first place.

Why the ISDA?

Herculio: All well-meant, good Triago. Be not sour —
These are not grapes.
Triago: Indeed not sir: rather, scrapes.
And scars and knocks — the job-lot doggedly sustained.
Herculio: (Aside) Some more than others. The odd one feigned.
But come, Sir Tig: what unrests you here?
Triago (waving paper): A tract from a brother clerk in America.
Herculio: Cripes abroad. Grim tidings?
Triago: Forsooth: it wears the colours of a fight.
A word-scape stain’d with tightly kernèd face
And girded round with fontish weaponry.
Herculio (inspecting the document): Verily, convenantry this dark
Speaks of litiginous untrust.
Otto Büchstein, Die Schweizer Heulsuse

Why, then, is this flawed assets business special to ISDA? Is it special to ISDA?

Normal financing contracts are, by nature, one-sided. Loans, for example. One party — the dealer, broker, bank: we lump these various financial service providers together as The Man — provides services, lends money and “manufactures” risk outcomes; the other — the customer — consumes them.

So, generally, the customer presents risks to The Man, and not vice versa. If the customer fails, it can’t repay its loan. All the “fontish weaponry” is therefore pointed at the customer.

Though the ISDA is also a “risk creation contract” with these same characteristics, it is not designed like one. Either party can be out of the money, and either party can blow up. The fontish weaponry points both ways.

This presented dealers with an unusual scenario: what happens if you blow up when I owe you money? That could not happen in a loan. It is less likely to happen under a swap these days, too, thanks to the arrival of mandatory variation margin — that is one of JC’s main objections — but the ISDA Master Agreement was forged well before this modern era.

There is an argument the flawed asset clause wasn’t a good idea even then, but a better one that it is a bad idea now, but like so many parts of this sacred, blessed form it is there and, for hundreds and thousands of ISDA trading arrangements, we are stuck with it.

Developments between editions

“...a condition precedent for the purpose of this Section 2(a)(iii) ...”

The 2002 ISDA trims back the third limb of Section {{{{{1}}}|2(a)(iii)}} from “all other conditions precedent” to just those that specifically say they mean to be caught by Section {{{{{1}}}|2(a)(iii)}}. This a sensible restriction in scope as far as it goes (but JC would go further and remove Section 2(a)(iii) altogether).

We have heard the argument advanced — apparently on the authority of that FT book about derivatives — that this restricted third limb somehow conditions the other conditions precedent in the clause (i.e., that there is no ongoing PEOD or EOD and that the Transaction has not already been terminated):

Section 2(a)(iii)(3) makes clear that if people want to stipulate any condition precedent other than the standard ones in Section 2(a)(iii)(1) and (2) they must clearly add the wording that the relevant condition will be “a condition precedent for the purposes of Section 2(a)(iii)”. ... Effectively this narrows the scope of the corresponding provision of the 1992 Agreement where no such statement was necessary.

It plainly does not, and nor do we see how you could read the FT book as making that argument. The extreme looseness of {{{{{1}}}|2(a)(iii)}} imported by any notified breach of the agreement, however technical, being a Potential Event of Default, remains.

“No Early Termination Date ... has occurred”...

New in the 1992 ISDA was the second condition precedent, that “...no Early Termination Date in respect of the relevant Transaction has occurred or been effectively designated”.

This is tidy-up material to bring triggered {{{{{1}}}|Termination Event}}s into scope. There is a period between notice of termination and when the {{{{{1}}}|Early Termination Date}} is actually designated to happen — and in a busy ISDA it could be a pretty long period — during which time the {{{{{1}}}|Transaction}} is still on foot and going, albeit headed inexorably at a brick wall.