Notices - 1992 ISDA Provision

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1992 ISDA Master Agreement
A Jolly Contrarian owner’s manual

Section 12 in a NutshellTM
Use at your own risk, campers!

12. Notices

12(a) Effectiveness. Any communication under this Agreement may be given in any manner described below (except that communications about Events of Default and Termination Events or Early Termination may not be given by electronic messaging system) as set out in the Schedule) and will be effective when delivered:―

(i) By hand: when delivered;
(ii) By telex: when the recipient’s answerback is received;
(iii) By fax: when received in legible form (the burden of proof being on the sender: a transmission report won’t do);
(iv) By registered mail: when delivered (or when delivery is attempted);
(v) By electronic messaging system: when received; or

unless delivery or receipt happens outside ordinary business hours on a Local Business Day, in which case it will be deemed effective on the following Local Business Day.
12(b) Change of Details. Either party may change its contact details by notice.
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Section 12 in full

12. Notices
12(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner set forth below (except that a notice or other communication under Section 5 or 6 may not be given by facsimile transmission or electronic messaging system) to the address or number or in accordance with the electronic messaging system details provided (see the Schedule) and will be deemed effective as indicated:—

(i) if in writing and delivered in person or by courier, on the date it is delivered;
(ii) if sent by telex, on the date the recipient’s answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is received by a responsible employee of the recipient in legible form (it being agreed that the burden of proving receipt will be on the sender and will not be met by a transmission report generated by the sender’s facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), on the date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic message is received,

unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business Day or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local Business Day, in which case that communication shall be deemed given and effective on the first following day that is a Local Business Day.
12(b) Change of Addresses. Either party may by notice to the other change the address, telex or facsimile number or electronic messaging system details at which notices or other communications are to be given to it.
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Related agreements and comparisons

Related Agreements
Click here for the text of Section 12 in the 2002 ISDA
Comparisons
Click to compare this section in the 1992 ISDA and 2002 ISDA

Resources and navigation

Resources Wikitext | Nutshell wikitext | 2002 ISDA wikitext | 2002 vs 1992 Showdown | 2006 ISDA Definitions | 2008 ISDA
Navigation Preamble | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14
Events of Default: 5(a)(i) Failure to Pay or Deliver5(a)(ii) Breach of Agreement5(a)(iii) Credit Support Default5(a)(iv) Misrepresentation5(a)(v) Default Under Specified Transaction5(a)(vi) Cross Default5(a)(vii) Bankruptcy5(a)(viii) Merger without Assumption
Termination Events: 5(b)(i) Illegality5(b)(ii) Tax Event5(b)(iii) Tax Event Upon Merger5(b)(iv) Credit Event Upon Merger5(b)(v) Additional Termination Event

The major change between the versions of Section 12 (Notices) was the 2002 ISDA’s inclusion of e-mail as a means of communication in addition to the 1992 ISDA’s electronic messaging system. Also, fax and electronic messaging system are not permitted means of serving close-out communications (i.e., under Sections 5 and 6) under the 1992 ISDA, but fax is permitted under the 2002 ISDA, whereas electronic messaging system and email are not. Got all that?
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Overview

Who would have thought a Notices provision would be so controversial? Especially the question, “what is an electronic messaging system”?

No-one, it is humbly submitted, until Andrews, J. of the Chancery Division, was invited to opine on Greenclose v National Westminster Bank plc, the kind of “little old lady” case that makes bad law.[1] The learned judge does nothing to dispel the assumption that lawyers are technological Luddites who would apply Tip-Ex to their VDUs if they didn't have someone to do their typing for them (and if they knew what a VDU was).

For there it was held that email is not an “electronic messaging system and, as such, was an invalid means for serving a close-out notice under the 1992 ISDA, which doesn’t mention email.

While we’re on the subject, who seriously has a telex in this day and age?

Read in depth about that case here.
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Details

Note the restriction on forms of notice for closing out: No email, no electronic messages. But note another dissonance: in the 1992 ISDA, close-out notification by fax was expressly forbidden; in the 2002, it is not: only electronic messaging systems and e-mail are verboten. Ironic, seeing how faxes have got on as a fashionable means of communication in the decades since they were sophisticated enough to be a plot McGuffin for a John Grisham novel.

Deliver

The Cambridge Dictionary says that to “deliver” is “to take goods, letters, parcels, etc. to people's houses or places of work:”[2] Merriam Webster says it means “to take and hand over to or leave for another”.[3] The Collins Dictionary of British English, in a rather modishly modern English format, tells us “If you deliver something somewhere, you take it there.”[4] A bit more challengingly, the Lexico Oxford Dictionary says it means “Bring and hand over (a letter, parcel, or goods) to the proper recipient or address”. Oxford’s language suggests a “handing” from sender to recipient, though a commonsense application of delivery through a letterbox says the only “hands” involved are the sender′s. An agent for the recipient does not need to be there; just that the notice is conveyed to the appointed place. It is no good refusing to answer the door, hiding behind the sofa or blocking up your letter box with Araldite: if the sender’s agent brings a notice to your designated address, even by regular post, the sender has “delivered” it.

Email vs electronic messaging system

The well-intended and, we think, presumed harmless — even modern — addition of email in the 2002 ISDA, in addition toelectronic messaging system”, persuaded the Chancery Division of the High Court to conclude that “electronic messaging system” and “email” are mutually exclusive things, rather than a basic commentary on ISDA’s crack drafting squadTM inability to let things go — a conclusion which the JC finds hard to accept, as you will see if you read the Greenclose v National Westminster Bank plc case note.

A John Grisham McGuffin yesterday. well, in about 1986 actually.

CSA

Note that the 1995 English Law CSA subjects its notice provisions to this provision (see Paragraph 9(c) and 11(g).
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See also

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References