Jurisdiction - ISDA Provision
2002 ISDA Master Agreement
Section 13(b) in a Nutshell™
Full text of Section 13(b)
Related agreements and comparisons
Content and comparisons
Largely the same, in practical effect, between the two versions: the clause grants the non-exclusive jurisdiction of the courts of the governing law you have chosen: you can launch proceedings wherever you like, but you can’t complain if they are launched in a home court, which leaves open that you might complain if they are launched in some other, inconvenient, court.
No doubt a litigation lawyer would be outraged at this suggestion that the versions mean different things, but life’s too short.
On the disapplication of 13(b)(iii)
Where you wish to elect the exclusive jurisdiction of (say) English courts in your Schedule, you may wish to explicitly disapply the proviso to 13(b) which provides that nothing in this clause precludes the bringing of Proceedings in another jurisdiction (in the flush language of the 1992 ISDA version; in 13(b)(iii) of the 2002 ISDA version).
Strictly speaking you shouldn't need to do this: Section 1(b) provides that the inconsistency created by the use of the expression “exclusive jurisdiction” in the Schedule will prevail over the text the Master Agreement. But that won’t stop officious attorneys the world over trying.
But, counselor, be warned: if you do try to explicitly override it — you know, for good measure and everything — and your counterparty pushes back, having deliberately taken the clarifying language out of a draft, you may be in a ;;worse position when interpreting the meaning of “exclusive jurisdiction", precisely because the counterparty refused to rule out the use of other jurisdictions. A cracking example of the anal paradox at work.
Don’t be too clever by half, in other words.