Notices - 1992 ISDA Provision
1992 ISDA Master Agreement
Section 12 in full
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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?
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. 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).
While we’re on the subject, who seriously has a telex in this day and age?
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.
The Cambridge Dictionary says that to “deliver” is “to take goods, letters, parcels, etc. to people's houses or places of work:” Merriam Webster says it means “to take and hand over to or leave for another”. The Collins Dictionary of British English, in a rather modishly modern English format, tells us “If you deliver something somewhere, you take it there.” 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.
The well-intended and, we think, presumed harmless — even modern — addition of email in the 2002 ISDA, in addition to “electronic 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.
- As the JC always says, anus matronae parvae malas leges faciunt.
- https://dictionary.cambridge.org/dictionary/english/deliver. Make your words meaningfulTM.