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Greenclose v National Westminster Bank plc: Difference between revisions
Greenclose v National Westminster Bank plc (view source)
Revision as of 15:58, 25 May 2016
, 25 May 2016→The errors
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{{box|{{ISDA Master Agreement 2002 12}}}} | {{box|{{ISDA Master Agreement 2002 12}}}} | ||
The intellectual endeavour here is interesting: Firstly, to deduce the meaning of the words in that agreement Andrews J looks at ''the intention of the person who crafted the {{1992ma}}'', and not the intentions of the parties who actually negotiated the agreement. The agreement was signed in 2006 - by which stage email was widely known and understood, and it seems fanciful to suggest parties would intend to include all [[electronic messaging | The intellectual endeavour here is interesting: Firstly, to deduce the meaning of the words in that agreement Andrews J looks at ''the intention of the person who crafted the {{1992ma}}'', and not the intentions of the parties who actually negotiated the agreement. The agreement was signed in 2006 - by which stage email was widely known and understood, and it seems fanciful to suggest parties would intend to include all [[electronic messaging system]]s ''but'' [[email]]. There is a long disquisition on what {{ISDA}} intended, which this reviewer submits is utterly irrelevant because ISDA was not a party to the contract. | ||
Andrews J needs also to draw a peculiar, narrow meaning of the word "system" to rule that while email may be a means of communicating electronic messages, it is not a "system". [[SWIFT]] is a messaging system. [[SMTP]] over the [[Internet]] is, apparently, not. You have to squint really hard and hold your head in a funny way to follow that logic. | Andrews J needs also to draw a peculiar, narrow meaning of the word "system" to rule that while email may be a means of communicating electronic messages, it is not a "system". [[SWIFT]] is a messaging system. [[SMTP]] over the [[Internet]] is, apparently, not. You have to squint really hard and hold your head in a funny way to follow that logic. | ||
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(Andrews J also was exercised mightily about whether a notification, even if undisputedly effective, not consistent with Section {{isdaprov|12}} would count for the purposes of exercising options under the {{isdama}}. Andrews J chose the path less travelled, in finding that "any notice or other communication ''may'' be given in any manner described below" meant it may ''only'' be given in that manner. Which raises the question: what if the court found on the facts that a non-compliant notice had, nonetheless made its way to the relevant person, been appropriately adverted to: would it still follow substance over form? | (Andrews J also was exercised mightily about whether a notification, even if undisputedly effective, not consistent with Section {{isdaprov|12}} would count for the purposes of exercising options under the {{isdama}}. Andrews J chose the path less travelled, in finding that "any notice or other communication ''may'' be given in any manner described below" meant it may ''only'' be given in that manner. Which raises the question: what if the court found on the facts that a non-compliant notice had, nonetheless made its way to the relevant person, been appropriately adverted to: would it still follow substance over form? | ||
But what would the court have found if [[Greenclose]] ''had'' specified an email address? That he was wrong to do so, because that wasn't an identifier on a valid "[[electronic messaging | But what would the court have found if [[Greenclose]] ''had'' specified an email address? That he was wrong to do so, because that wasn't an identifier on a valid "[[electronic messaging system]]"? | ||