Template:Isda electronic messaging system sum isda92prov

Especially the question, “What is an electronic messaging system”? The term is used liberally enough in the 1992 ISDA — the best the 1987 ISDA managed was “telex” so think yourself lucky, Boomer — but, apparently, electronic messaging systems in 1992 were different to the sort of things we’d consider an electronic messaging system today, and this sort of thing is likely to cause culturally insensitive millennials and digital natives problems.

How so? Well, by confusing what your grandparents might think counted as electronic messaging systems with what you do. For until the Natwest Bank found itself embroiled in the interest rate swap mis-selling scandal of 2013, everone thought they knew what an electronic messaging system was, but no-one had thought very hard about it.

That all changed when Andrews, J. of the Chancery Division, was invited to opine on it in Greenclose v National Westminster Bank plc.

Mr Greenclose was the kind of “little old lady” — well, Welsh hotelier, but you get the picture — who induces judges to make bad law.

This decision does nothing to dispel the assumption that lawyers are technological Luddites who would apply Tip-Ex to their VDUs if they didn’t have someone to do their typing for them (and if they knew what a VDU was).

For there it was held that email is not an “electronic messaging system” and, as such, was an invalid means for serving a close-out notice under the 1992 ISDA, which doesn’t mention email. Read in-depth about that case here.

And that was before the entire, interconnected world decided, as an orchestrated whole, to cease the conduct of the business as a physical idea for an indefinite period in early 2020. Suddenly, a widely-used and, it was assumed, well-tested notices regime started to look like it might not work.