Template:M summ 2002 ISDA 9(b): Difference between revisions
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Three lookouts here. | |||
'''Email isn’t included''': according to her majesty’s judiciary, [[email]] is not included and ''does not count as an [[electronic messaging system]]''. Let your klaxons blare. It seems absurd at first glance — [[Jolly Contrarian|some]] would say it seems absurd having read the whole judgment in {{Casenote|Greenclose|National Westminster Bank plc}} and thought about it at length over a hearty walk in the woods — but there it is: that is the law of the land at the time of writing. | |||
'''Two''': This might not so much matter were it not for another spectacular outing for her majesty's judiciary<ref>{{casenote|Rock Advertising Limited|MWB Business Exchange Centres Limited}}</ref>, in which Lord Sumption decided that a “[[no oral modification]]” clause means what it says. Hitherto is has been assumed to be an easy give to pedantic lawyers who have nothing more constructive to say. Strictly interpreting a [[NOM]] clause probably makes sense if you are contemplating the eternal verities on the hard benches of a law library — or your judicial chambers — but it makes none if your job is to manage the cut and thrust of daily operational contract management. | |||
To be sure, most financial institutions have a military-industrial complex handling the negotiation of {{isdama}}s and other trading contracts, so a formal amendment is not likely to pass without copperplate script execution. But where the Agreement contains a manifest error, and the parties perform notwithstanding to the intended commercial bargain — who can say? | |||
And as for [[waiver|waivers]] — especially when your [[credit department]] is in the thrall of setting [[NAV trigger|NAV triggers]] it doesn’t monitor and isn’t likely to to exercise — by the lights of this clause you ''must'' formally confirm these waivers in writing, which is a profound waste of everyone’s time. | |||
'''Three''': Good luck reconciling the above with the {{isdaprov|Counterparts and Confirmations}} clause, which says, rightly, that the binding action on a {{isdaprov|Transaction}} is ''the moment the parties first agree it'' — that is, as likely as not, a phone call or Bloomberg chat, or in volume products, an electronic handshake between booking systems. Since a {{isdaprov|Transaction}} ''is'' a modification to the {{isdama}}, the words above ring a bit hollow. | |||
BUT ANYWAY. | |||
{{ATE Capsule|isdaprov}} | {{ATE Capsule|isdaprov}} | ||
Revision as of 13:59, 16 March 2020
Three lookouts here.
Email isn’t included: according to her majesty’s judiciary, email is not included and does not count as an electronic messaging system. Let your klaxons blare. It seems absurd at first glance — some would say it seems absurd having read the whole judgment in Greenclose v National Westminster Bank plc and thought about it at length over a hearty walk in the woods — but there it is: that is the law of the land at the time of writing.
Two: This might not so much matter were it not for another spectacular outing for her majesty's judiciary[1], in which Lord Sumption decided that a “no oral modification” clause means what it says. Hitherto is has been assumed to be an easy give to pedantic lawyers who have nothing more constructive to say. Strictly interpreting a NOM clause probably makes sense if you are contemplating the eternal verities on the hard benches of a law library — or your judicial chambers — but it makes none if your job is to manage the cut and thrust of daily operational contract management.
To be sure, most financial institutions have a military-industrial complex handling the negotiation of ISDA Master Agreements and other trading contracts, so a formal amendment is not likely to pass without copperplate script execution. But where the Agreement contains a manifest error, and the parties perform notwithstanding to the intended commercial bargain — who can say?
And as for waivers — especially when your credit department is in the thrall of setting NAV triggers it doesn’t monitor and isn’t likely to to exercise — by the lights of this clause you must formally confirm these waivers in writing, which is a profound waste of everyone’s time.
Three: Good luck reconciling the above with the Counterparts and Confirmations clause, which says, rightly, that the binding action on a Transaction is the moment the parties first agree it — that is, as likely as not, a phone call or Bloomberg chat, or in volume products, an electronic handshake between booking systems. Since a Transaction is a modification to the ISDA Master Agreement, the words above ring a bit hollow.
BUT ANYWAY.