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{{fullanat|isda|2(a)(iii)|2002}} | {{fullanat|isda|2(a)(iii)|2002}} | ||
The world-famous [[flawed asset]] provision in the {{isdama}} | The world-famous [[flawed asset]] provision in the {{isdama}} | ||
In a {{nutshell}}, section {{isdaprov|2(a)(iii)}} does the following: | In a {{nutshell}}, section {{isdaprov|2(a)(iii)}} does the following: | ||
{{nuts|ISDA|2(a)(iii)}} | {{nuts|ISDA|2(a)(iii)}} | ||
{{isia}} | {{isia}} | ||
===Draft ISDA Section {{isdaprov|2(a)(iii)}} Protocol=== | ===Draft ISDA Section {{isdaprov|2(a)(iii)}} Protocol=== | ||
These amendments are being led by [[ISDA]] and are likely to take effect by protocol. These changes are separate to the ones being contemplated under DFA. | These amendments are being led by [[ISDA]] and are likely to take effect by protocol. These changes are separate to the ones being contemplated under DFA. | ||
The revised text looks to address 4 concerns (each arising from English case law): | The revised text looks to address 4 concerns (each arising from English case law): | ||
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#'''Extinguishment issue''': (Firth Rixson) and the "Terminated Transaction" issue (per [[Pioneer v Cosco (Case Note)|Cosco]]). | #'''Extinguishment issue''': (Firth Rixson) and the "Terminated Transaction" issue (per [[Pioneer v Cosco (Case Note)|Cosco]]). | ||
Still, the revised language raises a few concerns: | |||
#'''Incurable {{isdaprov|Events of Default}}''': [[ISDA]] was looking to apply the time restriction only in respect of "incurable" {{isdaprov|Events of Default}}'''". Not actually sure the list was sufficiently comprehensive to achieve that. Others have suggested to limit to {{isdaprov|Bankruptcy}}. Anyway, does not matter because none of that works under English law for capital reasons and so [[ISDA]] will be changing to apply the language to all {{isdaprov|Events of Default}} ([[FSA]] will require this). | #'''Incurable {{isdaprov|Events of Default}}''': [[ISDA]] was looking to apply the time restriction only in respect of "incurable" {{isdaprov|Events of Default}}'''". Not actually sure the list was sufficiently comprehensive to achieve that. Others have suggested to limit to {{isdaprov|Bankruptcy}}. Anyway, does not matter because none of that works under English law for capital reasons and so [[ISDA]] will be changing to apply the language to all {{isdaprov|Events of Default}} ([[FSA]] will require this). | ||
#The language is problematic where, for example, a {{isdaprov|Defaulting Party}} informs the {{isdaprov|Non-defaulting Party}} of a {{isdaprov|Misrepresentation}}. {{isdaprov|Non-defaulting Party}} waives the misrep and then the "defaulter" experiences a {{isdaprov|Default Under Specified Transaction}}. Would leave a gap on the CP. | #The language is problematic where, for example, a {{isdaprov|Defaulting Party}} informs the {{isdaprov|Non-defaulting Party}} of a {{isdaprov|Misrepresentation}}. {{isdaprov|Non-defaulting Party}} waives the misrep and then the "defaulter" experiences a {{isdaprov|Default Under Specified Transaction}}. Would leave a gap on the CP. | ||
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==Modified Text as per ISDA draft protocol== | ==Modified Text as per ISDA draft protocol== | ||
===Section 2(a)(iii)=== | ===Section {{isdaprov|2(a)(iii)}}=== | ||
{{isdaquote|{{ISDA Master Agreement 2002 2(a)(iii) Protocol}}|2(a)(iii)|2002}} | {{isdaquote|{{ISDA Master Agreement 2002 2(a)(iii) Protocol}}|2(a)(iii)|2002}} | ||
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}} | }} | ||
NB there isn't a Section 2(e) in [[2002 ISDA Master]] - this amendment is purely to bring the {{1992isda}} in line with the 2002 provision on {{isdaprov|Interest and Compensation}}. | NB there isn't a Section {{isdaprov|2(e)}} in [[2002 ISDA Master]] - this amendment is purely to bring the {{1992isda}} in line with the 2002 provision on {{isdaprov|Interest and Compensation}}. | ||
===Additional {{isdaprov|Definitions}} in Section 14=== | ===Additional {{isdaprov|Definitions}} in Section {{isdaprov|14}}=== | ||
{{isdasnap|Terminated Transactions Definition Protocol}} | {{isdasnap|Terminated Transactions Definition Protocol}} | ||
{{isdaquote|{{ISDA Master Agreement 2002 Condition End Date Definition Protocol}}|Condition End Date Definition|2002}} | {{isdaquote|{{ISDA Master Agreement 2002 Condition End Date Definition Protocol}}|Condition End Date Definition|2002}} | ||
{{isdaanatomy}} | {{isdaanatomy}} |