82,891
edits
Amwelladmin (talk | contribs) |
Amwelladmin (talk | contribs) |
||
Line 23: | Line 23: | ||
==NatWest’s errors== | ==NatWest’s errors== | ||
Schoolboy error no.1 was to have notice deadline which expired during the Christmas holiday period, when Greenclose was highly likely to be out of the office. But that’s as may be. In fairness, | Schoolboy error no.1 was to have notice deadline which expired during the Christmas holiday period, when Greenclose was highly likely to be out of the office. But that’s as may be. (In fairness, it’s not ''that'' outlandish to expect a hotel to be open in the Christmas holidays.) But generally, don’t have your options expire at Christmas. | ||
{{Box|'''Learning Number 1''': Don’t set options that expire in when | {{Box|'''Learning Number 1''': Don’t set options that expire in when everyone’s likely to be out of the office.}} | ||
Error no. 2 – less of a schoolboy one, in this reviewer’s opinion – was to presume that an [[email]], being, after all, an '''electronic''' mail '''message''' sent over a computer '''system''' (so sayeth [https://en.wikipedia.org/wiki/Email Wikipedia]) | Error no. 2 – less of a schoolboy one, in this reviewer’s opinion – was to presume that an [[email]], being, after all, an '''electronic''' mail '''message''' sent over a computer '''system''' (so sayeth [https://en.wikipedia.org/wiki/Email Wikipedia]) counted as an “[[electronic messaging system]]”. | ||
===Wait - [[email]] is ''not'' an [[electronic messaging system]]?=== | ===Wait - [[email]] is ''not'' an [[electronic messaging system]]?=== | ||
Line 39: | Line 39: | ||
{{box|{{ISDA Master Agreement 2002 12}}}} | {{box|{{ISDA Master Agreement 2002 12}}}} | ||
The intellectual endeavour here is interesting: Firstly, to deduce the meaning of the words in | The intellectual endeavour here is interesting: Firstly, to deduce the meaning of the words in the agreement, Andrews J looks at ''the intentions of the person who drafted the form of {{1992ma}}'', and not those of the parties who negotiated this actual agreement. Here’s the point: ''ISDA was not a party to the contract''. It may have been ISDA's 1992 form, but it was signed in 2006, by which stage “[[email]]” was widely known and understood. | ||
Why would parties deliberately include all [[electronic messaging system]]s ''except'' [[email]], especially since email is the only system vaguely answering the description of an “[[electronic messaging system]]” than a hotel owner in Wales would be likely to have? | |||
The court also needed also to draw a peculiar, narrow meaning of the word “system” to rule that while email may be a means of communicating electronic messages, it is not a “system”. [[SWIFT]], thought the court, is a messaging system. [[SMTP]] over the [[Internet]] it thought, is not. You have to squint really hard and hold your head in a funny way to follow that logic. Hotel owners in Wales ''can’t'' communicate by [[SWIFT]]. whether or not they had modern email in mind, the drafters of the {{1992ma}} certainly weren’t contemplating Welsh hoteliers. | |||
What’s oddest about this is that the court needed to make ''none'' of these assertions to find NatWest’s attempted service invalid, because ''Greenclose hadn’t specified an email address in the ISDA {{isdaprov|Schedule}} in any case''. Simply put, ''there was no agreed email address to which NatWest could send Greenclose a message'', however you construe Section {{isdaprov|12}}. Therefore, valid communication by email under Section {{isdaprov|12}} ''wasn’t possible''. Case closed. | |||
And what would the court have found if [[Greenclose]] ''had'' specified an email address? That he was wrong to do so, because that wasn’t an identifier | (Andrews J also was exercised mightily about whether a notification, even if undisputedly effective, not consistent with Section {{isdaprov|12}} would count for the purposes of exercising options under the {{isdama}}. Andrews J chose the path less travelled, in finding that “any notice or other communication ''may'' be given in any manner described below” meant it may ''only'' be given in that manner. Which raises a subsidiary question: what if the court had found that a non-compliant notice had, in actual fact, been delivered to the recipient? Would the court still follow substance over form and disallow the claim? | ||
And what would the court have found if [[Greenclose]] ''had'' specified an email address? That he was wrong to do so, because that wasn’t an identifier of a valid “[[electronic messaging system]]”? | |||
Questions that won’t be answered for now, as NatWest has not appealed the decision. |