Governing Law and Jurisdiction - ISDA Provision

2002 ISDA Master Agreement A Jolly Contrarian owner’s manual™ Resources and navigation [[{{{1}}} - 1992 ISDA Provision|This provision in the 1992]] Resources Wikitext | Nutshell wikitext | 1992 ISDA wikitext | 2002 vs 1992 Showdown | 2006 ISDA Definitions | 2008 ISDA | JC’s ISDA code project Navigation Preamble | 1 • (a) (b) (c) | 2 • (a) (b) (c) (d) | 3 • (a) (b) (c) (d) (e) (f) (g) | 4 • (a) (b) (c) (d) (e) | 5 • 5(a) Events of Default: 5(a)(i) Failure to Pay or Deliver 5(a)(ii) Breach of Agreement 5(a)(iii) Credit Support Default 5(a)(iv) Misrepresentation 5(a)(v) Default Under Specified Transaction 5(a)(vi) Cross Default 5(a)(vii) Bankruptcy 5(a)(viii) Merger Without Assumption 5(b) Termination Events: 5(b)(i) Illegality 5(b)(ii) Force Majeure Event 5(b)(iii) Tax Event 5(b)(iv) Tax Event Upon Merger 5(b)(v) Credit Event Upon Merger 5(b)(vi) Additional Termination Event (c) (d) (e) | 6 • (a) (b) (c) (d) (e) (f) | 7 | 8 • (a) (b) (c) (d) | 9 • (a) (b) (c) (d) (e) (f) (g) (h) | 10 | 11 | 12 • (a) (b) | 13 • (a) (b) (c) (d) | 14 | Index: Click ᐅ to expand: 2002 ISDA 1992 ISDA Section 13 in a Nutshell™ Use at your own risk, campers! 13. Governing Law and Jurisdiction 13(a) Governing Law. The governing law will be set out in the Schedule. 13(b) Jurisdiction. For any proceedings under this Agreement (“Proceedings”), each party irrevocably:― 13(b)(i) submits to:― (1) for English law-governed Agreements, the non-exclusive jurisdiction of the English courts (or their exclusive jurisdiction where Proceedings involve a Convention Court); or (2) for New York law-governed Agreements, the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in Manhattan; 13(b)(ii) waives its right to object to such court as a venue for any Proceedings brought in, or claim it is an inconvenient forum, or that it has no jurisdiction; and 13(b)(iii) agrees that Proceedings brought in one jurisdictions will not preclude Proceedings in any other jurisdiction. 13(c) Service of Process. Each party appoints any Process Agent specified for it in the Schedule to receive service of process in any Proceedings. If a Process Agent cannot act, the appointing party must tell the other party and within 30 days appoint an acceptable substitute. The parties consent to service of process by hand, fax or registered mail per Section 12. This clause does not stop parties serving process in any other permissible manner. 13(d) Waiver of immunities. Each party irrevocably waives all sovereign immunity relating to any Proceedings and agrees not to claim any such immunity in any Proceedings. view template Full text of Section 13 13. Governing Law and Jurisdiction 13(a) Governing Law. This Agreement will be governed by and construed in accordance with the law specified in the Schedule. 13(b) Jurisdiction. With respect to any suit, action or proceedings relating to any dispute arising out of or in connection with this Agreement (“Proceedings”), each party irrevocably:― 13(b)(i) submits:― (1) if this Agreement is expressed to be governed by English law, to (A) the non-exclusive jurisdiction of the English courts if the Proceedings do not involve a Convention Court and (B) the exclusive jurisdiction of the English courts if the Proceedings do involve a Convention Court; or (2) if this Agreement is expressed to be governed by the laws of the State of New York, to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; 13(b)(ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party; and 13(b)(iii) agrees, to the extent permitted by applicable law, that the bringing of Proceedings in any one or more jurisdictions will not preclude the bringing of Proceedings in any other jurisdiction. 13(c) Service of Process. Each party irrevocably appoints the Process Agent, if any, specified opposite its name in the Schedule to receive, for it and on its behalf, service of process in any Proceedings. If for any reason any party’s Process Agent is unable to act as such, such party will promptly notify the other party and within 30 days appoint a substitute process agent acceptable to the other party. The parties irrevocably consent to service of process given in the manner provided for notices in Section 12(a)(i), 12(a)(iii) or 12(a)(iv). Nothing in this Agreement will affect the right of either party to serve process in any other manner permitted by applicable law. 13(d) Waiver of immunities. Each party irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction or order for specific performance or recovery of property, (iv) attachment of its assets (whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any Proceedings. view template Related agreements and comparisons Click here for the text of Section 13 in the 1992 ISDA Template:Isdadiff 13 Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Content and comparisons

Largely the same, in practical effect, between the two versions: the clause grants the non-exclusive jurisdiction of the courts of the governing law you have chosen: you can launch proceedings wherever you like, but you can’t complain if they are launched in a home court, which leaves open that you might complain if they are launched in some other, inconvenient, court.

No doubt a litigation lawyer would be outraged at this suggestion that the versions mean different things, but life’s too short.

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Summary

Section 13(a)

There are parts of the ISDA Master Agreement with which you will spend weeks, months, or even years of your life grappling, pushing and pulling the embedded and nested intellectual concepts around in your mind, scrabbling desperately for a handhold, trying with all your might to get some purchase on the forensic Play-Doh that these clauses represent. We are fairly confident, without even knowing you, that section 13(a) will not be one of them.

If it is, it may be time to get your coat.

Section 13(b)

On the disapplication of Section 13(b)(iii)

Where you wish to elect the exclusive jurisdiction of (say) English courts in your Schedule, you may wish to explicitly disapply the proviso to 13(b) which provides that nothing in this clause precludes the bringing of Proceedings in another jurisdiction (in the flush language of the 1992 ISDA version; in 13(b)(iii) of the 2002 ISDA version).

Strictly speaking, you shouldn’t need to do this: Section 1(b) provides that the inconsistency created by the use of the expression “exclusive jurisdiction” in the Schedule will prevail over the text the Master Agreement. But that won’t stop officious attorneys the world over trying.

But, counselor, be warned: if you do try to explicitly override it — you know, for good measure and everything — and your counterparty pushes back, having deliberately taken the clarifying language out of a draft, you may be in a worse position when interpreting the meaning of “exclusive jurisdiction”, precisely because the counterparty refused to rule out the use of other jurisdictions. A cracking example of the anal paradox at work.

Don’t be too clever by half, in other words.

“Convention Court”

The 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters is this fellow. Be my guest. Let me know what you find.

The 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters is this puppy. Knock yourself out, and let us know how you get on.

Section 13(c)

English law

Process agent
/ˈprəʊsɛs ˈeɪʤᵊnt/ (n.)

An agent located in a jurisdiction who is appointed by a contracting counterparty outside that jurisdiction to accept service of legal proceedings filed against it in the courts of that jurisdiction, to discharge the procedural requirement that they are physically served within the jurisdiction.

For English law contracts the jurisdiction in question is that of “the courts of England and Wales” — there is no such thing as United Kingdom law — the rules of English civil court procedure require process physically to be served within England or Wales (or, in theory, their adjacent territorial waters). Service in Scotland — or its territorial waters — will not do. This means you can serve process on someone rowing a boat in the Bristol Channel, but not in Inverness, much less on someone escaping in rowing a boat to, for example, the Isle of Skye.

A contracting counterparty whom you cannot rely on being in England or Wales should you have to sue it — one who has no permanent place of business there — you might ask to appoint as its agent a company who reliably will be there, and who is prepared to receive process served upon the counterparty and pass it on to head office. That person is a “process agent”.

The best kind of process agent is an English-domiciled affiliate of the contracting entity who is happy to perform that role, as it generally will do it for free. But if you don’t have one, there are dedicated process agency businesses who will act as your process agent for, naturally enough, a suitably outrageous fee.

New York law

The New York rules of civil procedure are here. As you might expect, they seem complicated. CT Corporation seems to charge a lot for serving process — so we assume there is a reason for that.

Section 13(d)

Don’t confuse sovereign immunity with ultra vires — cue thunder crack at the mention of Orange County or Hammersmith and Fulham council and a dramatic look from our house gopher — for they are quite different things.

• Ultra vires: If a contract is beyond your powers or capacity to enter into a contract in the first place then it is void ab initio; any payments you have made under that contract are also void and you may reclaim them, and you can appeal to the court system to do that. That is to say, ultra vires is an “intra-legal” measure, recognised, defended and enforced by the courts.
• Sovereign immunity: Sovereign immunity is a different, “extra-legal” thing: it is to say “I am, quite literally, above the law: I am the law, and I do not have to subject myself to the judicial branch of my law — or anyone else’s law — unless I choose to.” This extends to being free from judicial intervention if I decide not to perform my contractual obligations, but it also means I cannot myself resort to the court process to make my counterparty perform its obligations. If I choose to go to court, then I subject myself fully to the courts as regards actions my counterparty wishes to bring against me.

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General discussion

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See also

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References

13 Governing Law and Jurisdiction

13(a) Governing Law
13(b) Jurisdiction
13(c) Service of Process
13(d) Waiver of immunities