Template:M summ 2018 CSD 13(h)

What an omnishambles. ISDA’s crack drafting squad™ may usually be tiresome, leaden in its literary style, and pernickety to the point of distraction, but one thing you can say for it is that it does, usually, do things properly. It is thorough. It leaves no stone unturned, even when you wish it rather had.

With this provision it looks like the ’squad got to the point of maximum disarray, with all rocks upturned and slaters, bugs and cockroaches scuttling everywhere, and it just had a tantrum and stormed off. These provisions don’t even make sense. They are not even grammatical.

The basic problem, part I

The problem to be solved is this: initial margin is designed to cover mark-to-market exposure between (usually daily) variation margin calls. It is usually calculated to cover the likely possible change in portfolio value over that “liquidity period”, given the potential drop in collateral value over the same period. That is, one day.

However, when a counterparty goes titten hoch, the process of closing it out and determining who is owed what is a long process. For a big complex financial institution, can be months or years. One day’s market move starts to look a little bit meagre. Seeing as the initial margin is, by regulation, in the shape of non-cash assets, it too is subject to the vagaries of the market and can move up or down. So it might not quite cover what you thought it was going to cover.

to a great extent, that is just the non-linear unpredictable risk of the market. The answer is to take more collateral, of better quality, but that has its limits. So the alternative is to at least allow people in to convert the collateral into cash, to stop half of the portfolio moving around.

But fundamentally, this is just one of those risks it would be lovely to banish, but you can’t. Sorry, regulators!

The basic problem part II

Now remember: unlike variation margin, where only the in-the-money counterparty holds it, there are necessarily two bucket of Regulatory IM at all times: the stuff you have posted as security for mark-to-market moves against you, and the stuff the other guy has posted as mark-to-market movements against her.

Now: if a catastrophic event affects one party that preceipittates a close-out, there will be a winner and a loser — only one of each — but it does not follow that the Unaffected Party will be the winner. Its portfolio may be out-of-the-money. Until the final Early Termination Amount is known — and this can take a while — it should not get its Initial Margin back, and nor should it get to take the Affected Party’s Initial Margin.

What were they trying to achieve? go figure.

God only knows what they thought they were trying to achieve. Whatever remote objective they had as a goal, and whatever contingencies were dogging the ’squad’s fevered subconscious as they trudged, in formation, through the moist, dengue-infested swamps of of this drafting exercise — and there is some talk that there may have been skirmishes with pockets of rogue buy-side advisors to distract them as they went waded through the hip-high sludge — what is left to posterity is a confused, gibbering disaster.

What did they need to achieve? Straightforward

All this provision does is describe when a Secured Party can actually take the initial margin the Custodian (IM) is holding for it.

You should not be surprised to hear this should be, more or less, when the Chargor has actually defaulted and been closed out — and, really, the control of secured collateral held under Control Agreement would ordinarily be most suitably dealt by that Control Agreement. The clue, surely, is in the name?

Until the ISDA Master Agreement has been fully closed out and the Early Termination Amount — that is, the total amount due following termination and valuation of all Transactions following the default — determined, you don’t definitively know what you are owed — even if you are owed anything: only one party to an ISDA Master Agreement can be owed something, remember — so until then, what business have you got appropriating the Initial Margin? Nor do you have any credit risk over it: it is held at a third party and secured in your favour. Cool your jets.

But that event — by our read, a “Failure to Pay Early Termination Amount” — isn’t even the default value for a Secured Party Rights Event: rather, it is one of a tangled menu of alternatives.