Template:M summ 2002 ISDA 12

Who would have thought a Notices provision would be so controversial? Especially the question, “What is an electronic messaging system”?

This is defined, by the way, in Section 14 as:

“electronic messages” does not include e-mails but does include documents expressed in markup languages, and “electronic messaging system” will be construed accordingly.

No-one, it is humbly submitted, until 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.

Oh, and another thing: who seriously has a telex in this day and age?