Template:M intro isda qualities of a good ISDA

These qualities interact and depend on each other: agreements which are fair will need to be clear, those that are clear will inspire confidence in your vown staff, which will tend them away from the Casanova principle towards fairness; an agreement that is clear and fair lends itself to consistency, since there will be less cause to negotiate and one that is fair, clear and consistent is easy to maintain and, heaven forfend, enforce.

Fair

Fairness as an abstract quality seems like one of those lip-servicey, all-very-well-in-theory ideas that got you good grades in your alternative dispute resolution tutorials but takes a haymaker to the jaw on first contact with the real commercial world.

We like to tell ourselves that, we do tell ourselves that, we are enculturated to present in the trenches as if facing a mortal enemy, and as the counterparty is similarly disposed fairness never gets a chance to break out.

But this is no single round prisoner’s dilemma. To show fairness is not to show weakness, but strength.

JC is by lifelong experience a sell-side guy: he comes at this from the perspective of a merchant contracting with its customers. We are, generally , all on the same side: our interests gently conflict but not viciously: I want a commission, you want cheap implied funding, but beyond that we each wish earnestly for each other’s continued prosperity. Things can get chewy at the extremes, but most customers never get near a chewy extreme.

We may occasionally engage contract with apparently hostile parties — competitor brokers, in litigation — but even when we do, we presume limited pact of good faith for the purpose of the common end to which both sides aspire. We must, at some level trust each other, or we would not contract at all. We don’t negotiate with terrorists.

In any case, the “merchant to customer” contract is, by a landslide, the most common kind. If you have any in-house experience of bona fide, non-existential, customer disputes you will know one thing: when there is any doubt, and frequently when there is no doubt, the business will roll over. This is nothing more than common sense: you stand far more to gain in future revenue by preserving the relationship at small cost now then taking a literal stance on technical errors.

This instinct is so pronounced that compliance teams have contrived processes to validate these waivers to ensure they do not amount to impermissible “inducements”.

In any case, the commercial imperative is such an overwhelming power that there is little point in starting with, or achieving, terms that go beyond fair. No-one will ever use them. Seeing as, all other things being equal a you will complete a fair contract faster than you will an unfair one — the ideal negotiation is no negotiation — you should start with a fair template.

Confident

Your form should inspire confidence in your negotiation team. They should feel comfortable with it, they should understand it, you should encourage them to go beyond its formal articulation and understand the underlying commercial drivers.

A negotiation team that is fearful of its material will hide behind formal rules. They won’t be drawn to discuss it — they don't understand it, so why would they put that vulnerability on show? — so will resort to the usual electronic trench warfare of long, bulleted issues listed that exist between counterparties and within organisations. This is to prefer the form over the substance — no-one should be surprised to see that our high modernist times — but deference to a plainly suboptimal form — which doesn't net our saintly criteria — is no cause for celebration. A confident negotiating team engages with the form rather than deferring to it.

Clear

Of the many purposes of the ISDA, most deal with the present (such as desired capital treatment; the availability of close-out netting) and the past (representations and warranties, and conditions precedent to transacting and continuing to perform), but only one deals with the future. The credit terms: in what circumstance can I break the glass, sound the alarm and head for the lifeboats.

These will only come into serious contemplation at times of extreme stress: the market’s, your management’s and, therefore, yours. The more the firm stands to lose, the more extreme those stressy circumstances are likely to be. Your management will be going mad — make no bones about that — but so will the market and, quite possibly, the geopolitical situation too. All kinds of people will be doing inexplicable things.

Your customers will be AWOL: the defaulting client certainly will. Bank chief executives won’t take each other’s calls. Prime Ministers will be ordering overseas embassies to max out their credit cards just to have cash on hand to meet the government’s obligations. Central bankers will be ordering the banks they regulate to lowball LIBOR.

We do not imagine that, when they crafted its close-out mechanics, the ’squad had the wider general ambiance in which the ISDA’s s last-resort rights would be exercised. They can’t have. We imagine they pictured the close-out urge coming upon the responsible credit officer, in isolation, at a time of beatific placidity: that there would be time and space to consider and quietly contemplate what must be done, perhaps with a frisson of regret for the poor customer whom one is letting down.

It will not be like that.

There will be multiple counterparty failures at once. All kinds of things will be stretching your attention, and your management’s. There will be allegations — unproven, unverifiable, and likely false but at the time you won’t know it — of fraud, of dastardly dealing, of internecine conflicts within the client, of side-conversations with your CEO who is allegedly related to the chief investment officer by marriage, of predatory competitors beating you to the close-out punch and eating your lunch. All of this is the fog of war.

Even among those who had them in the first place, patience and a sense of humour will be in short supply. People — many, many people — will want short, clipped answers to different questions they are all shouting at you at once — to which there are no short, clipped answers. If you even understand the question, the last thing anyone wants to hear by way of answer is, “ahhh, it’s complicated” or, God forbid, “the contract is not clear.”

And bet your bottom dollar, it will not be clear.

This, counsels, we think — and we are obliged to say the JC seems to be on his own about this one — short, clear, plain, blunt termination language, with simple-to-follow events addressing only generally catastrophic circumstances. The day is going to be an omnishambles, so make your job on that day as easy as it can possibly be.

The reality is that most of the weapons you need are embedded in the pre-printed form of the ISDA master agreement itself. Do not mess around with these, try to resist the temptation to unnecessarily augment them, and have ready-at-hand a simple step-by-step guide to how to get through them without screwing anything up. Like this one.

Consistent

It helps with clarity if you have confidence in a scrape that you know what you're ISDA is going to say where it matters. You can be sure of this if you are rigourous about quality control where it matters. (Where it doesn’t — acquiescing to a counterparty’s required modern slavery representation or agreeing to the ethical treatment of the environment etc, you can afford to take a view)

How, JC, do we force a counterparty to take our credit terms? No-one in their right mind would do that! We have to negotiate every time! And plus, we can’t stop our counterparties insisting on bespoke terms you know: this is a client service business! We cannot dictate!

Quite so: and we commend serenity’s prayer to you. There is a portion of this you can change; your own docs. If you start off with something you know to be unacceptable to your customers do not be surprised when they do not accept it stop therefore, rebase your documents to be at least in concept of all from the off. There is a false economy or at any rate a mis alignment in believing that your premium clients should be offered better terms then your regular ones. Your premium customers take greater risk and present greater catastrophe.. on a greater scale stop if you are prepared to run this risk with the premium customer then you should be prepared to run it with a smaller custom or two. This will also reduce the time you spend fruitlessly negotiating with customers who you know be generating less of your revenue. Nor does de-escalating your starting position we can your hand in the negotiation. Your walk away remains your walk away Colin the sooner you get to it the better that it's does not take long tends to focus our customers mind even one a customed to long and rewarding negotiations. Furthermore if you are diligent and consistent in your positioning, customers and their advisors will quickly tyre of banging their heads against a brick wall and will accept what is, after all, a reasonable position.

It is true that you cannot change the negotiating position of a truculent customer, but by rebating your documents to something more agreeable you perhaps avoid painting the clients into a corner from which it will not then back down in the first place.