Template:2(a)(iii) case table: Difference between revisions
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Amwelladmin (talk | contribs) Created page with "{| class="wikitable" |+ Caption text {{aligntop}} ! Case !! Date !! Judge !! Issue !! And? !! Status {{aligntop}} | {{Casenote|Enron|TXU}}|| 2003 || NSW Supreme Court || If you suspend under {{isdaprov|2(a)(iii)}} do you eventually have to close out or can you just sit there indefinitely? || You can just sit there for ever. || After global financial crisis this has become less and less popular with regulators, and is often amended (Wait Period) but it is still law. {..." |
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! Case !! Date !! Judge !! Issue !! And? !! Status | ! Case !! Date !! Judge !! Issue !! And? !! Status | ||
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| {{Casenote|Enron|TXU}}|| 2003 || NSW Supreme Court || If you suspend under {{isdaprov|2(a)(iii)}} do you eventually have to close out or can you just sit there indefinitely? || You can just sit there for ever. || After [[global financial crisis]] this has become less and less popular with regulators, and is often amended (Wait Period) but it is still law. | | {{Casenote|Enron|TXU}}|| 2003 || NSW Supreme Court || If you suspend under {{isdaprov|2(a)(iii)}} do you eventually have to close out or can you just sit there indefinitely? || You can just sit there for ever. || After [[global financial crisis]] this has become less and less popular with regulators, and is often amended (Wait Period) but it is still law. Unless you are seeking safe harbors from the US Bankruptcy Code, as Metavante was. But in the proper, right-thinking English law world, {{casenote|Enron|TXU}} is stioll right. | ||
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| {{Casenote|Marine Trade|Pioneer}}|| 2009 || Flaux J (High Court)|| 1. Can you net under Section 2( | | {{Casenote|Marine Trade|Pioneer}}|| 2009 || Flaux J (High Court)|| 1. Can you net under Section {{isdaprov|2(c)}} if there is an ongoing {{isdaprov|Event of Default}}? <br>2. (''[[Obiter dictum|Obiter]]'') If the {{isdaprov|Event of Default}} ceases, do payment obligations resume? || 1. No, because the payment is not presently due. <br>2. No. The obligation is effectively extinguished. || 1. Doubted (''[[Obiter]]'') by {{casenote|Pioneer|TMT}}. <br>2. Overruled by {{casenote|Lomas|Firth Rixson}}. | ||
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| {{Casenote|Metavante|Lehman}}|| 2009 || Bankruptcy Court for the Southern District of New York || If you suspend under {{isdaprov|2(a)(iii)}} do you eventually have to close out or can you just sit there indefinitely? || Yes you do have to close out, but for special reasons involving deep magic of [[safe harbor|safe harbors]] from the [[Bankruptcy Code]] ''but'' if you are incautious enough to ''not'' have closed out promptly, not only do you have to resume your payments, but you lost the right to close out at all, and have to pay default interest and everyting || Very, ''very'' [[litigationey]]. But now also widely considered to be “restricted to its facts”, dependent on US [[Bankruptcy Code]] [[safe harbor]]s etc. | |||
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| {{Casenote|Pioneer|Cosco}}|| 2011 || Flaux J (High Court) ||If the {{isdaprov|Event of Default}} ceases, do payment obligations resume? || No. The obligation is effectively extinguished. || Reversed on appeal (in {{Casenote|Lomas|Firth Rixson}}) | | {{Casenote|Pioneer|Cosco}}|| 2011 || Flaux J (High Court) ||If the {{isdaprov|Event of Default}} ceases, do payment obligations resume? || No. The obligation is effectively extinguished. || Reversed on appeal (in {{Casenote|Lomas|Firth Rixson}}) | ||
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| {{Casenote|Pioneer|TMT}}|| 2011 || Gloster J (High Court) || 1. Can you net under Section {{isdaprov|2(c)}} if there is an ongoing {{isdaprov|Event of Default}}? || Yes. It would be absurd for a {{isdaprov|Defaulting Party}} to have to pay more than it would owe if it were not Defaulting. || Good law (albeit ''[[Obiter dictum|Obiter]]'') | |||
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| {{Casenote|Lomas|Firth Rixson}}|| 2012|| Longmore LJ (Court of Appeal) || If the {{isdaprov|Event of Default}} ceases, do payment obligations resume? || Yes. The obligation is suspended, not extinguished. || Good law. | | {{Casenote|Lomas|Firth Rixson}}|| 2012|| Longmore LJ (Court of Appeal) || If the {{isdaprov|Event of Default}} ceases, do payment obligations resume? || Yes. The obligation is suspended, not extinguished. || Good law. | ||
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Revision as of 16:38, 23 May 2023
| Case | Date | Judge | Issue | And? | Status |
|---|---|---|---|---|---|
| Enron v TXU | 2003 | NSW Supreme Court | If you suspend under 2(a)(iii) do you eventually have to close out or can you just sit there indefinitely? | You can just sit there for ever. | After global financial crisis this has become less and less popular with regulators, and is often amended (Wait Period) but it is still law. Unless you are seeking safe harbors from the US Bankruptcy Code, as Metavante was. But in the proper, right-thinking English law world, Enron v TXU is stioll right. |
| Marine Trade v Pioneer | 2009 | Flaux J (High Court) | 1. Can you net under Section 2(c) if there is an ongoing Event of Default? 2. (Obiter) If the Event of Default ceases, do payment obligations resume? |
1. No, because the payment is not presently due. 2. No. The obligation is effectively extinguished. |
1. Doubted (Obiter) by Pioneer v TMT. 2. Overruled by Lomas v Firth Rixson. |
| Metavante v Lehman | 2009 | Bankruptcy Court for the Southern District of New York | If you suspend under 2(a)(iii) do you eventually have to close out or can you just sit there indefinitely? | Yes you do have to close out, but for special reasons involving deep magic of safe harbors from the Bankruptcy Code but if you are incautious enough to not have closed out promptly, not only do you have to resume your payments, but you lost the right to close out at all, and have to pay default interest and everyting | Very, very litigationey. But now also widely considered to be “restricted to its facts”, dependent on US Bankruptcy Code safe harbors etc. |
| Pioneer v Cosco | 2011 | Flaux J (High Court) | If the Event of Default ceases, do payment obligations resume? | No. The obligation is effectively extinguished. | Reversed on appeal (in Lomas v Firth Rixson) |
| Pioneer v TMT | 2011 | Gloster J (High Court) | 1. Can you net under Section 2(c) if there is an ongoing Event of Default? | Yes. It would be absurd for a Defaulting Party to have to pay more than it would owe if it were not Defaulting. | Good law (albeit Obiter) |
| Lomas v Firth Rixson | 2012 | Longmore LJ (Court of Appeal) | If the Event of Default ceases, do payment obligations resume? | Yes. The obligation is suspended, not extinguished. | Good law. |