Force Majeure Event - ISDA Provision: Difference between revisions

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{{isdaquote|{{ISDA Master Agreement 2002 5(b)(ii)}}|5(b)(ii)|2002}}
{{isdaquote|{{ISDA Master Agreement 2002 5(b)(ii)}}|5(b)(ii)|2002}}


Note that, while the {{1992ma}} does not contain the concept of Force Majeure, there is an [[ISDA Illegality/Force Majeure Protocol]] (see [http://www.isda.org/2012illegalityprot/docs/ISDA_Protocol_-_Adoption_of_2002_Illegality_FM_provisions_Final.pdf here]) which can be signed to adopt/incorporate the relevant parts:
Note that, while the {{1992ma}} does not contain the concept of [[force majeure]], there is an [[ISDA Illegality/Force Majeure Protocol]] (see [http://www.isda.org/2012illegalityprot/docs/ISDA_Protocol_-_Adoption_of_2002_Illegality_FM_provisions_Final.pdf here]) which can be signed to adopt/incorporate the relevant parts:
 


===Section {{isdaprov|5(b)(ii)}} in the {{1992ma}}===
===Section {{isdaprov|5(b)(ii)}} in the {{1992ma}}===

Revision as of 19:40, 3 February 2016

Numbering Discrepancy: Note the numbering discrepancy in Section 5(b) between the 1992 ISDA and 2002 ISDA. This is caused by a new 5(b)(ii) (Force Majeure Event) in the 2002 ISDA before Tax Event, which is thus shunted from Section 5(b)(ii) (in the 1992 ISDA) to Section 5(b)(iii) (in the 2002 ISDA).

Text of Section 5(b)(ii), ISDA Master Agreement

2002 ISDA

5(b)(ii) Force Majeure Event. After giving effect to any applicable provision, disruption fallback or remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in this Agreement, by reason of force majeure or act of state occurring after a Transaction is entered into, on any day:―
5(b)(ii)(1) the Office through which such party (which will be the Affected Party) makes and receives payments or deliveries with respect to such Transaction is prevented from performing any absolute or contingent obligation to make a payment or delivery in respect of such Transaction, from receiving a payment or delivery in respect of such Transaction or from complying with any other material provision of this Agreement relating to such Transaction (or would be so prevented if such payment, delivery or compliance were required on that day), or it becomes impossible or impracticable for such Office so to perform, receive or comply (or it would be impossible or impracticable for such Office so to perform, receive or comply if such payment, delivery or compliance were required on that day); or
5(b)(ii)(2) such party or any Credit Support Provider of such party (which will be the Affected Party) is prevented from performing any absolute or contingent obligation to make a payment or delivery which such party or Credit Support Provider has under any Credit Support Document relating to such Transaction, from receiving a payment or delivery under such Credit Support Document or from complying with any other material provision of such Credit Support Document (or would be so prevented if such payment, delivery or compliance were required on that day), or it becomes impossible or impracticable for such party or Credit Support Provider so to perform, receive or comply (or it would be impossible or impracticable for such party or Credit Support Provider so to perform, receive or comply if such payment, delivery or compliance were required on that day),
so long as the force majeure or act of state is beyond the control of such Office, such party or such Credit Support Provider, as appropriate, and such Office, party or Credit Support Provider could not, after using all reasonable efforts (which will not require such party or Credit Support Provider to incur a loss, other than immaterial, incidental expenses), overcome such prevention, impossibility or impracticability;

(view template)

Note that, while the 1992 ISDA does not contain the concept of force majeure, there is an ISDA Illegality/Force Majeure Protocol (see here) which can be signed to adopt/incorporate the relevant parts:

Section 5(b)(ii) in the 1992 ISDA

There is no equivalent to the Force Majeure Event in the 1992 ISDA. An Impossibility clause was frequently written into the schedule, which endeavoured to do the same thing. Note a few caveats with regard to Force Majeure Events:

Waiting Period

The Waiting Period for Illegality (Section 5(b)(i)) is three Local Business Days; for a Force Majeure Event (5(b)(ii)) it is 8 Local Business Days.

Incorporating Force Majeure into the 1992 ISDA

One can incorporate Force Majeure into the 1992 ISDA as long as you carry the concept through to its logical conclusion i.e.:

The concept also impacts the basis of Close Out because the 2002 ISDA requires use of true mids for valuation i.e, not the mean of each party's view of the bid/offer where a Force Majeure Event (or Illegality) occurs, which is effectively what you get under the 1992 ISDA with a "Two Affected Parties" option.