What would ISDA do?
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Boilerplate Anatomy™
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In irons
/ɪn aɪənz/ (Prepositional phrase.)
Stalled, prow to wind, and unable to come about or tack either way.
Should you find yourself composing finance contracts out of fresh air and upon clear blue water you may find yourself becalmed, or “in irons”, broiling under the midday sun, wrestling with the dreary question of “how much boilerplate should I include?” a good rule of thumb is to ask:
Not because ISDA’s crack drafting squad™ is any great model for economy when it comes to la verbiage — surely, by now, you know JC’s thoughts on that — but because ISDA Master Agreement is a contract under which parties both take significant risks and the usual bargaining power asymmetry in finance —which leads to contracts being stuffed with pointless flummery is absent.
So we can list the usual commonplaces of the backend and hold them up against this standard. If the ISDA Master Agreement does not trouble itself to say, for example, that
references to the singular shall include the plural and vice versa unless expressly stated otherwise.
Then it is safe enough to leave it out of your NDA.
Hacking swathes of needless semolina from your templates is a cleansing, cathartic process. Following the ISDA Master Agreement is the first step on a self-abnegating change journey. Before long you will come to recognise that much of what is in the ISDA could go without saying too, and before long you will be pitched headlong on a journey to scour every relative clause from your canon.
| Boilerplate | Has ISDA got it? | Should ISDA have it? |
|---|---|---|
| Entire agreement | Yes: Entire Agreement | Debatable |
| Singulars and plurals | No. | No. |
| Contracts (Rights of Third Parties) Act 1999 | No. | Negotiators probably insist on it in the Schedule, but no. |