Remedies Cumulative - ISDA Provision
Overview
Section 9(d) is unchanged between the 1992 ISDA and the 2002 ISDA.
Summary
Finance contracts tend to be far more categorical about how innocent parties can detonate defaulters than anything else: there is not much to be said on the happy dimensions of lending money, after all: I give it to you, you give it back, you pay me some interest in the meantime.
So, legislating for defaults, potential defaults, terminations, close out, and exercise of drastic rights. We are amongst financiers; we should expect paranoia.
There is one last paranoia. It is a sort of meta-paranoia. It is this: What happens if, in carefully writing down all my rights upon your Event of Default, I inadvertently undo some better right that I might have at common law? Does my right to send a Section 6(a) and kick off that infernal close-out process cut off some better, quicker remedy I might access just by declaring a repudiation of the contract and suing for damages?
Most of the time, you would think, it should not, but if it does, Section 9(d) is your chosen slug of boilerplate. This vouches safe your common law rights notwithstanding anything explicit in the contract.
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- The JC’s famous Nutshell™ summary of this clause
See also
- Rights cumulative in our general boilerplate anatomy