Template:M summ 2018 CSD 3(c)(iii)

The point where, with the greatest of respect, the 2018 English law IM CSD gets totally over the front of its skis. Had it just reined in its enthusiasm, and limited itself to dealing with *just* regulatory IM, that actually has to be posted, compulsorily, to a third party custodian, this document would have been shorter, less controversial, and way easier to understand. But no: ISDA’s crack drafting squad™ went into bafflement overdrive.

A casual reader might also wonder whether someone is having a laugh, at our expense, about how these undoubtedly overcomplicated provisions are expressed. ISDA’s crack drafting squad™ could scarcely have made this more convoluted, as our nutshell summary to the right should indicate.

Initial margin and independent amounts

A common confusion in the ISDA Master Agreement is its use of “Independent Amount” to describe what everyone else in the market colloquially calls initial margin. Were they trhe same? were they different? it was quite difficult on a cold read to say, especially as an Independent Amount looks, in the 1995 CSA, like it is meant to function as a distinct amount of standalone credit protection, held without reference to a given Transaction, but in practice it does not, and is called Transaction-by-Transaction.

Anyway, opportunistically ISDA’s crack drafting squad™ has solved that problem by introducing two kinds of Margin Amount in the 2018 English law IM CSD: the Margin Amount (IM) and the Margin Amount (IA). Maybe someone thought this was a neat trick, I don’t know. It seems a dumb one to me: once everyone know Independent Amount and initial margin were, for all intents and purposes, the same; now they are subtly different.

The problem ISDA’s crack drafting squad™ was trying to “solve for” was the swap counterparty who is already taking initial margin and wants to keep doing that, its own way, somehow, even now the technocrats have railroaded their way into the room and mandated by regulation their own version initial margin, which you must do their way.

These counterparties include, for example, those in a prime brokerage relationship, who might have their swap positions “cross-margined” with a wider range of physical and futures positions that their prime brokers will want to margin — and rehypothecate — as a single pool of assets and liabilities.

But it might be as simple as a dealer who has set its Independent Amounts higher than those mandated by the regulators, and wants to keep the higher value.

So the 2018 English law IM CSD contemplates, on one hand, regulatory initial margin, which it calls “Margin Amount (IM)”, and non-regulatory initial margin, which it labels with fond redolence to the old days of Independent Amounts, as “Margin Amount (IA)”.

The theory of the Margin Approach

Let’s call your existing, pre-regulatory initial margin arrangement your “IA”, and the regulatory requirement “IM”. IA could be more than IM, less than IM, or (unlikely, but let’s say) the same.

The other difference is that usually you paid your IA directly, and by title transfer, to your counterparty. Since generally dealers would require IM, but customers would not, this had the curious effect of increasing the customer’s credit exposure to the dealer, at the same time it reduced the dealer’s market exposure against the customer. But — and for that very reason, Reg IM you must pay not to your dealer, but to a third-party custodian, subject to a security arrangement and an account control agreement, to avoid exacerbating counterparty credit risk the other way. The regulatory regime is therefore economically not the same as the previous non-regulatory IA regime, as the recipient cannot monetise the regulatory initial margin it receives, or use it elsewhere in its business. This reuse right is important for those involved in margin lending.

So once the Reg IM comes in, the question becomes (a) do you still want your old IA delivered to you so you can reuse it — in total, or just any of it in excess of the new IM requirement?

The 2018 English law IM CSD proposes three ways of solving this:

• Distinct Margin Flow Approach: you pay IM under the 2018 English law IM CSD and pay the whole IA whack, separately, to the counterparty under the Other CSA. Obviously enough, customers are not going to like this.
• Allocated Margin Flow Approach: you pay the Reg IM portion of the IA under the 2018 English law IM CSD, and pay any excess over that in the IA to the counterparty under the Other CSA. To the JC’s way of thinking, this is the only one that makes any sense;
• Greater of Margin Flow Approach: You pay the whole of the IA (or the IM, if it is greater) under the 2018 English law IM CSD and nothing under the Other CSA. We don’t think the broker will ever give up the right to reuse excess IA by steering that to a third party custodian, and nor, really should the client, since their implied financing rates will surely rise.