Template:Isda 9(b) summ

Exceptionally poor drafting takes a clause which didn’t really need to be said at all, and converts it into a monster. If we convert this to symbolic logic it must mean this:

Effective amendment or waiver =In writing AND [EITHER executed by each party OR confirmed by exchange of [EITHER Telex OR electronic message]]

Firstly, “in writing” means recorded for posterity, in words ingestable by means of the eyes, as opposed to the ears. This is not the OED definition, I grant you — I made it up just now — but it zeroes in on thte immutable fact that, whether it is on parchment, paper, cathode ray tube, LED screen or electronic reader, you take them in by looking at them. Not orally — from the mouth — or for that matter, aurally — to the ears. Visible sentences.

So WHAT THE HELL IS “INCLUDING A WRITING EVIDENCED BY A FACSIMILE TRANSMISSION” MEANT TO ADD? What even is “a” writing? But, readers, this brief sentence gets only worse. Then it says “AND executed by each of the parties” — so what, are you saying you have to get them to sign your fax copy? —

And note, despite what you might think, email does not count as an electronic messaging system. So a waiver of a NAV Trigger by emails is not strictly possible. Though of course waivers unsupported by consideration are generally revocable on fair notice under English law anyway.

As a result ISDA’s crack drafting squad™ can pat itself on the back for having inserted as long ago as 1992 what, at the time, was an unnecessary clause but which turned out to anticipate a rather woeful decision of the Supreme Court in 2018.

“No oral modification” is a self-contradictory stricture on an amendment agreement, until 2018 understood by all to be silly fluff put in a contract to appease the lawyers and guarantee them an annuity of tedious work. But as of 2018 it is no longer, as it ought to be, a vacuous piece of legal flannel — thanks to what we impolitely consider to be an equally vacuous piece of legal reasoning by no less an eminence than Lord Sumption of the Supreme Court in Rock Advertising Limited v MWB Business Exchange Centres Limited if one says one cannot amend a contract except in writing then one will be held to that — even if on the clear evidence the parties to the contract later agreed otherwise.

This is rather like sober me being obliged to act on promises that drunk me made to a handsome rechtsanwältin during a argument about theoretical physics in a nasty bar in Hammersmith after the end-of-year do, which that elegant German attorney can not even remember me making, let alone wishing to see performed. Hold my beer.