Force Majeure Event - ISDA Provision

Numbering Discrepancy: Note the numbering discrepancy in Section 5(b) between the 1992 ISDA and 2002 ISDA. This is caused by a new 5(b)(ii) (Force Majeure Event) in the 2002 ISDA before Tax Event, which is thus shunted from Section 5(b)(ii) (in the 1992 ISDA) to Section 5(b)(iii) (in the 2002 ISDA).

In gory detail

1992 ISDA 5(b)(ii) Tax Event. Due to: (x) any action taken by a taxing authority, or brought in a court of competent jurisdiction, on or after the date on which a Transaction is entered into (regardless of whether such action is taken or brought with respect to a party to this Agreement) or (y) a Change in Tax Law, the party (which will be the Affected Party) will, or there is a substantial likelihood that it will, on the next succeeding Scheduled Payment Date (1) be required to pay to the other party an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is required to be deducted or withheld for or on account of a Tax (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is required to be paid in respect of such Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B)); (view template)

2002 ISDA 5(b)(ii) Force Majeure Event. After giving effect to any applicable provision, disruption fallback or remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in this Agreement, by reason of force majeure or act of state occurring after a Transaction is entered into, on any day:― 5(b)(ii)(1) the Office through which such party (which will be the Affected Party) makes and receives payments or deliveries with respect to such Transaction is prevented from performing any absolute or contingent obligation to make a payment or delivery in respect of such Transaction, from receiving a payment or delivery in respect of such Transaction or from complying with any other material provision of this Agreement relating to such Transaction (or would be so prevented if such payment, delivery or compliance were required on that day), or it becomes impossible or impracticable for such Office so to perform, receive or comply (or it would be impossible or impracticable for such Office so to perform, receive or comply if such payment, delivery or compliance were required on that day); or 5(b)(ii)(2) such party or any Credit Support Provider of such party (which will be the Affected Party) is prevented from performing any absolute or contingent obligation to make a payment or delivery which such party or Credit Support Provider has under any Credit Support Document relating to such Transaction, from receiving a payment or delivery under such Credit Support Document or from complying with any other material provision of such Credit Support Document (or would be so prevented if such payment, delivery or compliance were required on that day), or it becomes impossible or impracticable for such party or Credit Support Provider so to perform, receive or comply (or it would be impossible or impracticable for such party or Credit Support Provider so to perform, receive or comply if such payment, delivery or compliance were required on that day), so long as the force majeure or act of state is beyond the control of such Office, such party or such Credit Support Provider, as appropriate, and such Office, party or Credit Support Provider could not, after using all reasonable efforts (which will not require such party or Credit Support Provider to incur a loss, other than immaterial, incidental expenses), overcome such prevention, impossibility or impracticability; (view template)

Note that, while the 1992 ISDA does not contain the concept of Force Majeure, there is an ISDA Illegality/Force Majeure Protocol (see here) which can be signed to adopt/incorporate the relevant parts:

Section 5(b)(ii) in the 1992 ISDA

There is no equivalent to the Force Majeure Event in the 1992 ISDA. An Impossibility clause was frequently written into the schedule, which endeavoured to do the same thing. Note a few caveats with regard to Force Majeure Events:

• Hierarchy of Events: Under Section 5(c) an Illegality or a Force Majeure Event "trumps" a Failure to Pay or Deliver, Breach of Agreement or Credit Support Default Event of Default occasioned by the same circumstances (e.g. a Failure to Pay or Deliver occasioned by an act of God is a Force Majeure Event and not an Event of Default). this doesn't apply with respect to other Events of Default though (such as Bankruptcy or Cross Default).
  
• Deferral of Payments and Deliveries During Waiting Period: Upon an Illegality or Force Majeure Event, payments and deliveries are deferred until the earlier of (a) the expiry of any Waiting Period; and (b) the date on which the Illegality or Force Majeure Event is cured.

Waiting Period

The Waiting Period for Illegality (Section 5(b)(i)) is three Local Business Days; for a Force Majeure Event (5(b)(ii)) it is 8 Local Business Days.

Incorporating Force Majeure into the 1992 ISDA

One can incorporate Force Majeure into the 1992 ISDA as long as you carry the concept through to its logical conclusion i.e.:

• Include a Hierachy of Events;
• Consider the impact re a deferral of Early Termination Amount etc.

The concept also impacts the basis of Close Out because the 2002 ISDA requires use of true mids for valuation i.e, not the mean of each party's view of the bid/offer where a Force Majeure Event (or Illegality) occurs, which is effectively what you get under the 1992 ISDA with a "Two Affected Parties" option.