82,891
edits
Template:M gen 2002 ISDA 12: Difference between revisions
no edit summary
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 1: | Line 1: | ||
===Mandatory, or not?=== | ===Mandatory, or not?=== | ||
Section {{isdaprov|12}} specifies a variety of different formats by which a party “[[may]]” deliver notices under the {{isdama}}. Ordinarily “[[may]]” implies discretion and optionality on a party, such that if it wishes it might choose something different. We have waxed lyrical elsewhere about the potential redundancy of such optional clauses.<ref>See: [[I never said you couldn’t]].</ref> However, this is ''not'' how Andrews J saw this ''particular'' “[[may]]” in the idiosyncratic, but unappealed, case of ''[[Greenclose]]''. This “[[may]]” means “[[must]]” and, as long as ''[[Greenclose]]'' remains the unchallenged last word in British jurisprudence, it excludes any other means of delivering a notice. Since hand-delivery and delivery by courier are mentioned but the ordinary post isn’t, this probably rules it out. (But if it’s important, who would use snail mail anyway?) | Section {{isdaprov|12}} specifies a variety of different formats by which a party “[[may]]” deliver notices under the {{isdama}}. Ordinarily “[[may]]” implies discretion and optionality on a party, such that if it wishes it might choose something different. We have waxed lyrical elsewhere about the potential redundancy of such optional clauses.<ref>See: [[I never said you couldn’t]].</ref> However, this is ''not'' how Andrews J saw this ''particular'' “[[may]]” in the idiosyncratic, but unappealed, case of ''[[Greenclose]]''. This “[[may]]” means “[[must]]” and, as long as ''[[Greenclose]]'' remains the unchallenged last word in British jurisprudence, it excludes any other means of delivering a notice. Since hand-delivery and delivery by courier are mentioned but the ordinary post isn’t, this probably rules it out. (But if it’s important, who would use snail mail anyway?) | ||
On the other hand it hardly needs to be said that all of the ordinary day-to-day communication under the {{isdama}} between trading and back-office staff of each party — inconsequential matters like trading, payments, settlements, reconciliations, and margin — will happen by telephone and email, in naked disregard for the terms of the {{isdama}} which, at that point, will be languishing languishing unobserved in an electronic document repository to which operations staff might not even have access. This somewhat gives the lie to ''[[Greenclose]]''’s rather quaint apprehensions about how {{isdama}}s operate in practice. | |||
===Close-out notice restrictions=== | ===Close-out notice restrictions=== | ||
However curious Andrews J’s reasoning on “[[may]]”, note the overriding restriction on forms of notice for closing out: no [[email]], no [[Electronic messaging system - ISDA Provision|electronic messages]]. But note ''another'' dissonance: in the {{1992ma}}, close-out notification by [[fax]] was expressly forbidden; in the 2002, it is not: only [[Electronic messaging system - ISDA Provision|electronic messaging systems]] and [[e-mail]] are ''verboten''. Ironic, seeing how [[fax|faxes]] have got on as a fashionable means of communication in the decades since they were sophisticated enough to be a plot McGuffin for a John Grisham novel. | However curious Andrews J’s reasoning on “[[may]]”, note the overriding restriction on forms of notice for closing out: no [[email]], no [[Electronic messaging system - ISDA Provision|electronic messages]]. But note ''another'' dissonance: in the {{1992ma}}, close-out notification by [[fax]] was expressly forbidden; in the 2002, it is not: only [[Electronic messaging system - ISDA Provision|electronic messaging systems]] and [[e-mail]] are ''verboten''. Ironic, seeing how [[fax|faxes]] have got on as a fashionable means of communication in the decades since they were sophisticated enough to be a plot McGuffin for a John Grisham novel. | ||