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Set-off - ISDA Provision: Difference between revisions
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→Cross-affiliate set-off
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===Cross-[[affiliate]] [[set-off]]=== | ===Cross-[[affiliate]] [[set-off]]=== | ||
The {{2002ma}}’s {{isdaprov|Set-off}} provision refers to a “Payer” and “Payee”. | The {{2002ma}}’s {{isdaprov|Set-off}} provision refers to a “Payer” and “Payee”. Since either the “{{isdaprov|Payer}}” or the “{{isdaprov|Payee}}” could be the {{isdaprov|Innocent Party}}<ref>i.e., non-{{isdaprov|Defaulting Party}} or the non-{{isdaprov|Affected Party}}.</ref>, including {{isdaprov|Affiliates}} into the 2002 definition becomes problematic and cumbersome. | ||
Generally, market practice is therefore to do the following: | Generally, market practice is therefore to do the following: | ||
*'''Where {{isdaprov|Affiliate}}s ''are'' required''': to use bespoke wording. | *'''Where {{isdaprov|Affiliate}}s ''are'' required''': to use bespoke wording. | ||
*'''Where {{isdaprov|Affiliate}}s are ''not'' required''': use the {{2002ma}} standard {{isdaprov|set-off}} wording above. | *'''Where {{isdaprov|Affiliate}}s are ''not'' required''': use the {{2002ma}} standard {{isdaprov|set-off}} wording above. | ||
But cross affiliate set-off is a pretty rum affair in any case. Generally set-off requires mutuality of payment, currency, time and counterparty, so setting off between affiliates is liable to challenge anyway (unless you have [[cross-guarantee]] arrangements). And in this modern days of bank recovery and resolution, conjoining claims between entities which are supposed to be siloed and independent isn't really the thing. | |||
===Scope of Set-off=== | ===Scope of Set-off=== | ||