Template:Isda 3(a) details

Section {{{{{1}}}|3(a)(i)}}: {{{{{1}}}|Status}}

That basic, resting-state level of confidence we all want to have that the legal entity we are hoping to trade with is not, actually a figment of our imagination, has not sneakily been dissolved or somehow transmogrified into a non-material projection on an astral plane, and is up to date with its bills, audits financial statements and annual regulatory filings.

Some of these, nowadays, ought to be moderated by the existence of universal unique legal entity identifiers — to quote pub philosopher Des Carter, I have an LEI, therefore I am — though most, you would think would be better coming from your satisfaction that the folk in onboarding have actually done their job.

However you look at it, there remains a bit of an existential question afoot here. It quickly gets rather Cartesian. For if you are not sure whether the person to whom you are speaking is really there, then how will asking that person to confirm it help?

“Could you please tell me you exist?” sounds to these old ears like a cry for the kind of help the representations and warranties section of a legal contract is not, realistically, well positioned to provide.

And if they do, but it turns out they don’t, then what?

Section {{{{{1}}}|3(a)(ii)}}: {{{{{1}}}|Powers}}

Whether your counterparty is even constitutionally capable of entering into obligations of the type contemplated by your contract, is a question of its capacity (as to which see also ultra vires). In this day and age, capacity — once a rich source of legal paranoia — is largely a dead letter among commercial enterprises in sensible jurisdictions, but it is still a banana skin for municipal bodies and local governments. Even thirty years on, the words “Orange County” or “Hammersmith and Fulham council” will be enough to get buttocks clenching in your risk department.
Ultra vires is Latin for “beyond its powers”, a concern which crops up usually in the context of a corporation or governmental authority exceeding the powers and objects set out in its constitution or charter. It may also have some relevance to a Trust.

In that most valuable and intellectually rewarding pastime of checking a prospective combatantcounterparty’s capacity and authority, ultra vires is your principle concern should it not, after all, have the capacity to transact in your chosen kind of derivative.

These days ultra vires is a rather old fashioned notion as far as an ordinary corporation goes — in most sensible jurisdictions, the vicissitudes of the ultra vires rule for innocent, publicly spirited bystanders (like swap dealers), whose only concern is that an undertaking is prudently managing the financial exposures inherent in its business, have been largely obliterated by legislation, but it is still liable to induce butterflies in your team of legal eagles if you are dealing with a local authority.

Section {{{{{1}}}|3(a)(v)}}: {{{{{1}}}|Obligations binding}}

Now there was once a time the JC would have nodded along and said, yes, this is representation that transgresses the very first rule of representations and warranties, which is that they are meant to be about matters of private, present fact, known to the representor but not the representee, but about which the representee cares a lot, and which might colour its decision to enter the contract in the first place.

but the practical facts of the matter is that “obligations binding” are part of the commonplace, in boilerplate up and down the land, and while there are tendentious theoretical arguments to resist giving such a representation, there are absolutely no good practical ones.

It is true that the validity, enforceability and bindingness of a contract is a matter of law; but it is a pretty fundamental one that one should know about oneself without recourse to an external legal adviser. The gossamer latticework of international, and national regulation being what it is, one’s regulatory status, which parts of whose regulatory perimeter you fall in or out of ought to be clear enough to you, but will be by no means obvious to your counterparty, and it is a sign of basic nose-breathing competence that you should know it, and be able to confidently say it to your counterpart should she ask about it.

It in theory requires an opinion, from one qualified to give one — and that is a reasonable conclusion for a third party to draw, if there really is no other way of getting to the bottom of the matter — but not a first party. First parties need to know what one they are and are not permitted do, so save themselves from winding up in the slammer, and it won’t do — as lawyers from as august an institution as Goldman Sachs have been known to — to be unprepared to make that statement about their own firm, unsupported by written evidence from Sullivan and Cromwell to a counterparty who asks them.

The obligations binding representation offends another principle of contractual representation, too: it is a pre-contractual statement as to a legal state of affairs which, by definition, has not yet come about. The “bindingness” of the contract is not a present fact at the time this representation is made. Representations as to the expected state of the world in the future are not generally called “representations”. They are called “promises”.

There is a slight paradox about it all the same: a warranty, or representation, about a notionally current state of affairs, presents some kind of existential state of undecidability that not even Kurt Gödel can let us out of. For if this warranty is wrong, then the contract it lives in, QED, is invalid — that is to say, for all intents and purposes, does not exist, including this warranty. So precisely when you need to rely on it, you find it has vanished like some kind of that Schrödinger’s cat.

Which, we think is why it is also styled a “representation”.