Template:M summ 2002 ISDA 9(b)
Three lookouts here.
Email isn’t included: according to her majesty’s judiciary, email is not included and does not count as an electronic messaging system. Let your klaxons blare. It seems absurd at first glance — some would say it seems absurd having read the whole judgment in Greenclose v National Westminster Bank plc and thought about it at length over a hearty walk in the woods — but there it is: that is the law of the land at the time of writing.
Two: This might not so much matter were it not for another spectacular outing for her majesty's judiciary[1], in which Lord Sumption decided that a “no oral modification” clause means what it says. Hitherto is has been assumed to be an easy give to pedantic lawyers who have nothing more constructive to say. Strictly interpreting a NOM clause probably makes sense if you are contemplating the eternal verities on the hard benches of a law library — or your judicial chambers — but it makes none if your job is to manage the cut and thrust of daily operational contract management.
To be sure, most financial institutions have a military-industrial complex handling the negotiation of ISDA Master Agreements and other trading contracts, so a formal amendment is not likely to pass without copperplate script execution. But where the Agreement contains a manifest error, and the parties perform notwithstanding to the intended commercial bargain — who can say?
And as for waivers — especially when your credit department is in the thrall of setting NAV triggers it doesn’t monitor and isn’t likely to to exercise — by the lights of this clause you must formally confirm these waivers in writing, which is a profound waste of everyone’s time.
Three: Good luck reconciling the above with the Counterparts and Confirmations clause, which says, rightly, that the binding action on a Transaction is the moment the parties first agree it — that is, as likely as not, a phone call or Bloomberg chat, or in volume products, an electronic handshake between booking systems. Since a Transaction is a modification to the ISDA Master Agreement, the words above ring a bit hollow.
BUT ANYWAY.