Determining Party - Equity Derivatives Provision
2002 ISDA Equity Derivatives Definitions
Paragraph 12.8(f) in a Nutshell™
Full text of Paragraph 12.8(f)
Content and comparisons
- 12.8(a) “Cancellation Amount”
- 12.8(b) “Means of determination”
- 12.8(c) “Determination”
- 12.8(d) “Quotations”
- 12.8(e) “Liquidation of hedges”
- 12.8(f) “Determining Party”
- 12.8(g) “Commercially reasonable procedures”
The Determining Party only ever has to determine a Cancellation Amount, Cancellation and Payment or Partial Cancellation and Payment under 12.8, and that will only happen in only when a Transaction terminates following an Extraordinary Event or an Additional Disruption Event.
Why: The Equity Derivatives recognise that while most calculations could be performed by whoever is appointed Calculation Agent, determination of a Cancellation Amount is inextricably related to the hedge and — especially where there is a disrupted market – this is best to be calculated by the one whose problem it is to unwind that hedge: namely, the Hedging Party.
In theory, too, the Hedging Party might not be named the Determining Party. Which is kind of awkward, since the Cancellation Amount is couched in terms of the cost to the determining Party of unwinding, liquidating or re-establishing its hedge — which it would only do if it was, like, hedging.
Lastly, note that if your investment bank is as left-handedly configured as some the JC has come across, the group entity writing the equity swaps might not be the same as the one doing the physical hedging of those swap obligations (with a back-to-back trade between them, for example), so the Hedging Party/Determining Party might not be either party to the actual ISDA Master Agreement at all.
The User’s Guide
We have noted elsewhere that the User’s Guide is less forthcoming than one might like it to be on what the Determining Party is for, and when (or why) there might ever be two. But it does say this:
“In calculating a Cancellation Amount, a Determining Party is required to act in good faith and to use commercially reasonable procedures. It should be noted that quotations are not necessarily required, as depending on the Transaction in question, the cost of liquidating hedges may be a more appropriate basis for determining a Cancellation Amount than soliciting quotations.
Parties should note that the Determining Party is the party that will be calculating its own cost of replacing or providing the economic equivalent of a terminated Transaction. The Calculation Agent may be a party to the Transaction, but when performing its duties as Calculation Agent it is acting as a neutral party. The Calculation Agent as such will not have a replacement cost or economic equivalent and therefore should not be designated as the Determining Party.”
If this is meant to help, it singularly fails to, except to recognise that the Determining Party is acting in its capacity as a Hedging Party, and not in its gnomic, wise, dispassionate role as impartial determiner of abstract values. This explains, maybe, why ISDA’s crack drafting squad™ thought it worthwhile to have distinct roles of Calculation Agent and Determining Party — it is not saying (as far as we can tell) that the party who is Calculation Agent cannot be Determining Party at all, but only that when it is being a Determining Party it is not being Calculation Agent: the two roles wear different trousers, so to speak.
But what it does confirm is that the Determining Party is meant to refer to the person who is actually hedging the trade, and that what they will be doing is liquidating hedges to get prices.
Two Determining Parties?
Yes, it does say this, but no, you shouldn’t go there. For a lengthy disquisition on why not, see the commentary to Section 12.7(c).
Fewer than one Determining Party?
But do at least try to have one: the ’squad, in their infinite wisdom — or perhaps indulging in some cosmic sense of humour, did not provide for a fallback should you neglect to appoint a Determining Party in your Confirmation at all (it would be nice if it defaulted to the Hedging Party, of even the Calculation Agent, so at least there was someone in charge of calculating what happens on an Additional Disruption Event, but no. Otherwise it might make for some squeaky bottoms should things suddenly, collectively, go tetas arriba, for there is no-one on hand to calculate the all-important Cancellation Amount.
For those who do forget we can offer only moral support: in spirit — for whatever that is worth — it should be the person doing the hedging, but good luck persuading your client of that, when le monde est allé en enfer dans un panier du main, everyone has their hair on fire etc etc.
A dispute right for Calculation Agent and Determining Party determinations?
Recognising that “should you?”, and “will you have to?”, are different questions — buyside counsel may insist, using their regular platter of exotic preparations of canard that buyside lawyers always serve up, and you may ultimately decided not to die in a ditch about it, however much it pains you — recognising all that; here — if you are doing synthetic prime brokerage business — is how it rolls.
Client’s lawyer: we must have a dispute right, so help me.
- The Dealer will be the Calculation Agent. (True.)
- The Dealer will be the Hedging Party. (True.)
- The Dealer will be the Determining Party. (True.)
- Dealers are bad, venal people. They have blackened hearts and will stop at nothing to rip their clients’ faces off. We need some check on their unfettered and sure-to-be outrageously exercised discretion. (A matter of debate and, to be sure, recent history has not looked kindly on the goings on in some dealers, but if that’s your starting point a far better question is “why are you doing business with such a rascal in the first place”? And generally, hedge funds haven’t had a spotless track record either, have they? For every Lehman, there’s been an LTCM, Amaranth, Archegos, SAC, Galleon and, er, Madoff.)
The Dealer’s lawyer: Look, dudes, you seem to be missing the point.
- Firstly, This is synthetic prime brokerage. It isn’t an arm’s length trading arrangement. It is business facilitation for you. When we hedge, we are delta neutral. That means if our hedge pays us 50, we pay you 50. So firstly, we can’t rip your face off, even though it is one only a mother could love.
- Secondly, we are owe you best execution
- Thirdly, because we delta hedge, we come up with our “determinations” by actually selling the right number of shares. It isn’t like we confect some hypothetical valuation based on a model some geek in correlation trading built in excel. We don’t go ask some stooge dealers for a soft estimate, and promise them champagne in the mail. We actually sell the stock. Our own money out the door. We can’t get it back. What you are asking is to second guess our actual transaction by you asking some stooge dealer for a soft estimate. This is like putting a bet on Crystal Palace to beat Scunthorpe and when Palace loses, telling the bookmaker: “but my buddy is a football expert, and he says Palace were dead unlucky, hit the crossbar a couple of times, and that Scunthorpe goal should have been disallowed, so really it should have been a 4:0 win to Palace. So you have to pay me anyway.”
- Fourthly, there are a ton of controls on us already, contractual, regulatory and economic:
- Contractual: Section 12.8 of the Equity Derivatives (especially Sections 12.8(b) and 12.8(g)) is shot through with requirements to act in a commercially reasonable manner, using commercially reasonable procedures, going out to leading dealers and so on. Likewise, a whenever a Calculation Agent is acts or exercises judgment in any way, it must do so in good faith and in a commercially reasonable manner (See Section 1.40). What the dispute provision is aimed to do, your adversary will say, is provide a stick to enforce that obligation. but at some point this becomes an infinite regression: what if the dispute is not registered in good faith? Where is the stick to enforce that?
- Regulatory: There's the best execution obligation. The COBS rules require us to treat our clients fairly.
- Economic: You are the client. You can pull your business. You can decide to never give us another trade. Seeing as we are delta-one hedged, we have no incentive at all to lowball, and every incentive to give you the best price we can manage.
- If Calculation Agent == Dealer, and Dealer == Hedging Party, and Hedging Party == Determining Party, then Calculation Agent == Determining Party.
- AND WHO SHALL REMAIN NAMELESS.
- “May be”. You think?
- Emphasis added.
- Admittedly this only holds if the Dealer does owe best execution, but if it is MiFID-regulated and you are a professional client, it will.