General Conditions - ISDA Provision: Difference between revisions
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 1: | Line 1: | ||
{{manual|MI|2002|2(a)|Section|2(a)|medium}} | |||
{{isdaanat|2(a)}} | {{isdaanat|2(a)}} | ||
''Section 2(a) is identical in the {{1992ma}} and the {{2002ma}}.'' | ''Section 2(a) is identical in the {{1992ma}} and the {{2002ma}}.'' | ||
Revision as of 17:22, 1 February 2020
|
2002 ISDA Master Agreement
Section 2(a) in a Nutshell™ Use at your own risk, campers!
Full text of Section 2(a)
Related agreements and comparisons
|
Content and comparisons
The 1987 ISDA, being concerned only with interest rates and currency exchange, does not contemplate delivery, as such. Delivery implies non-cash assets. Therefore portions of 2(a)(i) and 2(a)(ii) were augmented in the 1992 ISDA to cater for this contingency. The 1992 ISDA also added a condition precedent to the flawed asset clause (Section 2(a)(iii)) that no Early Termination Date had been designated.
Thereafter Section 2(a) is identical in the 1992 ISDA and the 2002 ISDA. However the subsidiary definition of Scheduled Settlement Date — a date in which any Section 2(a)(i) obligations fall due — is a new and frankly uncalled-for innovation in the 2002 ISDA.
We have a special page dedicated to Section 2(a)(iii), by the way. That is a brute, and one of the most litigationey parts of the Agreement.
Summary
Section 2 contains the basic nuts and bolts of your obligations under the Transactions you execute. Pay or deliver what you’ve promised to pay or deliver, when you’ve promised to pay it or deliver it, and all will be well.
“Scheduled Settlement Date”
Though it doesn’t say so, at least in the 2002 ISDA the date on which you are obliged to pay or deliver an amount is the “Scheduled Settlement Date”. The ’02 definition only shows up only in Section 2(b) (relating to the time by which you must have notified any change of account details) and then, later, in the tax-related Termination Events (Tax Event and Tax Event Upon Merger). That said, “Scheduled Settlement Date” isn’t defined at all in the 1992 ISDA.
Section 2(a)(iii): the flawed asset provision
And then there’s the mighty flawed asset provision of Section 2(a)(iii). This won’t trouble ISDA negotiators on the way into a swap trading relationship — few enough people understand it sufficiently well to argue about it — but if, as it surely will, the great day of judgment should visit upon the financial markets again some time in the future, expect plenty of tasty argument, between highly-paid King’s Counsel who have spent exactly none of their careers considering derivative contracts, about what it means.
We have some thoughts on that topic, should you be interested, at Section 2(a)(iii).
General discussion
Flawed assets
Section 2(a)(iii): Of these provisions, the one that generates the most controversy (chiefly among academics and scholars, it must be said) is Section 2(a)(iii). It generates a lot less debate between negotiators, precisely because its legal effect is nuanced, so its terms are more or less inviolate. Thus, should your counterparty take a pen to Section 2(a)(iii), a clinching argument against that inclination is “just don’t go there, girlfriend”.
Payments and deliveries
In a rare case of leaving things to practitioners’ common sense, ISDA’s crack drafting squad™ deigned not to say what it meant by “payment” or “delivery”.
Payments
Payments are straightforward enough, we suppose — especially since they are stipulated to be made in “freely transferable funds and in the manner customary for payments in the required currency”: beyond that, money being money, you either pay or you don’t: there are not too many shades of meaning left for legal eagles to snuggle into.
Deliveries
Deliveries, though, open up more scope for confecting doubts one can then set about avoiding. what does it mean to deliver? What of assets in which another actor might have some claim, title or colour of interest? In financing documents you might expect at least a representation that “the delivering party beneficially owns and has absolute rights to deliver any required assets free from any competing interests other than customary liens and those arising under security documents”.
What better cue could there be for opposing combatants leap into their trenches, and thrash out this kind of language?
Less patient types — like yours truly — might wish to read all of that into the still, small voice of calm of the word “deliver” in the first place.
What else could it realistically mean, but to deliver outright, and free of competing claims? It is bound up with implications about what you are delivering, and whose the thing is that you are delivering. It would be absurd to suppose one could discharge a physical delivery obligation under a swap by “delivering” an item to which one had no title at all: it is surely implicit in the commercial rationale that one is transferring, outright, the value implicit in an asset and not just the formal husk of the asset itself, on terms that it may be whisked away at any moment at the whim of a bystander.
Swaps are exchanges in value, not pantomimes: one surrenders the value of the asset for whatever value one’s counterparty has agreed to provide in return. Delivery is not just some kind of performative exercise in virtue signalling. You have to give up what you got. As the bailiffs take leave of your counterparty with the asset you gave it strapped to their wagon, it would hardly do to say, “oh, well, I did deliver you that asset: it never said anywhere it had to be my asset, or that I was meant to be transferring any legal interest in it to you. It is all about my act of delivery, I handed something to you, and that is that.”
We think one could read that into the question of whether a delivery has been made at all. Should a third party assert title to or some claim over an asset delivered to you, your best tactic is not a vain appeal to representations your counterparty as to the terms of delivery, but to deny that it has “delivered” anything at all. “I was meant to have the asset. This chap has repossessed it; therefore I do not have it. If I don’t have it, it follows that you have failed to deliver it.”
Modern security as practical control
In any weather, nowadays much of this is made moot by the realities of how financial assets are transferred: that is, electronically, fungibly, in book-entry systems, and therefore, by definition, freely: a creditor takes security over accounts to which assets for the time being are credited, or by way of physical pledge where the surety resides in the pledgee holding and therefore controlling the securities for itself. It is presumed that, to come about, any transfer of assets naturally comes electronically and without strings attached. It would be difficult for such a security holder to mount a claim for an asset transferred electronically to a bona fide third party recipient for value and without notice: the practicalities of its security interest lie in its control over the asset in the first place: holding it, or at the least being entitled to stop a third party security trustee or escrow custodian delivering away the asset without the security holder’s prior consent.
See also
- Flawed asset
- Section 2(a)(iii)
References
|
ISDA Anatomy™
view template
view template
|
Section 2(a) is identical in the 1992 ISDA and the 2002 ISDA.
Of these provisions, the one that generates the most controversy (chiefly among academics and scholars, it must be said) is Section 2(a)(iii). It generates a lot less debate between negotiators precisely because its legal effect is nuanced, so its terms are more or less inviolate. Thus, should a counterparty of yours take a pen to Section 2(a)(iii), a clinching argument against that inclination is “just don’t go there, girlfriend”.
So, for academics and frustrated geeks only:
Section 2(a)(iii)
Section 2(a)(iii) of the ISDA Master Agreement was considered in the Metavante v Lehman litigation, which has led to more or less the opposite conclusion to the court in Enron v TXU.
The following is a proposal to "fix" the issues perceived to arise from the Metavante and, more specifically, the Marine Trade case with respect to Section 2(a)(iii), about which HMT Treasury is sufficiently concerned so as to establish a consultation group to advise it on the ISDA Master Agreement.
Mean time, ISDA is looking to propose a market led solution. That is HMT's preferred position but they may well legislate if a workable solution is not forthcoming.
HMT has not concluded that 2(a)(iii) necessarily operates as a walk-away clause (or an “ipso facto” clause, as it is called in the US) but is concerned it may have that economic effect and is is raising policy arguments as to why that should not be allowed to continue.
Clearly, any push towards a finding of "walk-aways" takes derivative counterparties to an unsupportable place with regard to RWA generation under the Capital Accords.
HMT concerns
The key concern for HMT relates to non-payment into the insolvent estate by the insolvent company's debtors. Specifically:
1. Time delay - how long can parties rely on 2(a)(iii) for? Indefinitely?
2. Opportunism: Can a non-defaulting party effectively monetise the gross obligations of a defaulting party by not designating an Early Termination Date and then realising value through the exercise of Set-off rights or the enforcement of security?
3. Faux J indicated in his judgment that the obligations of the non-defaulting party under the ISDA never come into existence if the condition precedent is not satisfied on the relevant payment date: i.e., the failure cannot be cured and the obligations cannot come into existence on a future date if the CP is subsequently satisfied. That view is controversial and was expressed obiter dicta. The CA may not address it for that latter reason.