Preamble - ISDA Provision
2002 ISDA Master Agreement
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Little material difference between the 1992 ISDA and the 2002 ISDA here. ISDA’s crack drafting squad™ being, by 2002, a more world-weary, battle-hardened combat unit than it was in 1992, was more alive in the 2002 ISDA to the idea that one might confirm Transactions other than via a full-blown Confirmation: those with master confirmation agreements and who match commoditised swap transactions through online trade matching systems may appreciate this acknowledgement, but it still falls in the circular “goes without saying” filing cabinet in this commentator’s opinion.
The preamble, which talks in somewhat laboured terms about the architecture of the ISDA contract, is the only place in the ISDA Master Agreement where the concept of the “Transaction” — being the actual swaps you put on under one of these confounded agreements — is defined.
The legal documentation for an ISDA swap transaction comes in three main parts, but — of course — there are complications for the legal eagles to get their iatrogenic talons into. But for now, let’s start at the beginning.
- the state-of-the-art 2002 ISDA;
- the still-popular-with-traditionalists-and-Americans 1992 ISDA, and
- the all-but-retired-but-don’t-forget-there-are-still-soldiers-in-the-Burmese-jungle 1987 ISDA
- the interesting-only-for-its-place-in-the-fossil-record-and-witty-acrostic 1985 ISDA Code; and
- there isn’t a 2008 ISDA. That’s a little running JC in-joke.
The first part of the trinity is the pre-printed form of ISDA Master Agreement.
- Content: The ISDA Master Agreement has 14 “Sections” and is inviolate. It doesn’t have much to say about any particular Transaction, but just assumes you will be entering lots of them, and provides for general terms that apply to all of them. So, Representations, covenants to maintain certain standards and supply credit information, and critically Events of Default, Termination Events, and Close-out rights. Close-out is deep ISDA lore: this is what almost all of the excitement in an ISDA negotiation is about, and there will be much more to say about it later.
- You don’t edit it: You don’t, despite the darkest fears of your internal audit department, ever edit this document. Ever. This is by quite deliberate design. Everyone in the market knows the ISDA intimately, and there is good comfort in knowing, when it comes to that terrible moment when, as the world goes to hell, you have to understand your rights and obligations, that you don't have to read the 19 pages of the pre-print as well. Even the pagination and line-layout is sacrosanct: Some connoisseurs cherish the Schedule amendment which purports to excise “the third word of the second line of limb (b) of Section 5(a)(viii)”. Honestly. The ISDA Master Agreement’s generally a .pdf, so you can’t but, in any weather, you don’t. You just don’t.
- You do amend it: But, of course, an ISDA Master Agreement is nothing without a long and pointless negotiation to amend, augment or clarify this agreement! And to be sure you can amend an ISDA, but you do this is by providing for an amendment in your ...
This overlays the pre-printed master agreement. Here you specify Additional Termination Events, add economic variables, names, addresses, add Tax Representations and then, in Part 5, you are free to make any technical amendments your credit and legal chicken lickens want for the avoidance of doubt, and that you couldn't make because technical ineptitude and unerring market convention prevented you editing the preprinted master. That comprises your overarching ISDA Master Agreement, though you may also have a ...
The credit support arrangement usually takes the form of an annex to the ISDA Master Agreement. It may be under English law or New York law. The English law CSA has 11 “Paragraphs”; the 1994 New York law CSA — which has fiddly and rather pointless security provisions — has 13, in each case the last one being an editable schedule of Elections and Variables. Like the ISDA Master Agreement you don’t edit the pre-printed Paragraphs. Now in order to document a specific Transaction you will need a...
The Confirmation is the thing that actually documents a specific swap Transaction. This you can edit, to your heart’s content. There is sometimes an intermediate Master Confirmation Agreement which documents the generic terms for all, say equity derivative Transactions.
- There is no such thing as a 2008 ISDA. That was a joke on our part.
- Seriously: proceed with caution with one of these. 1987 ISDAs don’t have a lot of safety features a modern derivatives counterparty relies on, so only for real specialists and weirdos. Think of it like flying a spitfire rather than a 737 Max. Um, okay, bad metaphor.
- Talking to yourself might not be the first sign of madness, but having in-jokes with yourself might be.
- I know you can, but you are forgetting about the general technical aptitude of your average ISDA negotiator who can’t figure out how to get goddamn tab stops to work.
- “But what if we did?” wails internal audit. How would you know? This is your chance to pull the exasperated Kermit face. It won’t help, of course, but you may feel better.