Template:Isda 9(b) general
Three lookouts here.
One: Email isn’t included. According to her majesty’s judiciary, email is not included and does not count as an electronic messaging system. Let your klaxons blare. But at least the 1992 ISDA is equivocal about it: in the 2002 ISDA it is written into the definition of “electronic messaging system” that it doesn’t include email. I know it seems absurd at first glance — some would say it seems absurd having read the whole judgment in Greenclose v National Westminster Bank plc and thought about it at length over a hearty walk in the woods — but there it is: that is the law of the land at the time of writing.
Two: This might not so much matter were it not for another spectacular outing for her majesty's judiciary[1], in which Lord Sumption decided that a “no oral modification” clause means what it says. Hitherto is had been assumed to be an easy concession to pedantic lawyers to let then can march in triumph back to their clients having had their iatrogenic way, but it now actually means something. Strictly interpreting a NOM clause probably makes sense if you are contemplating the eternal verities on the hard benches of a law library — or your judicial chambers — but it makes none if your job is to manage the cut and thrust of daily operational contract management.
To be sure, most financial institutions have a military-industrial complex handling the negotiation of ISDA Master Agreements and other trading contracts, so a formal amendment is not likely to pass without copperplate script execution in any case. And where the agreement contains a manifest error, and the parties perform to its true intent, notwithstanding misdirected written text, does this give one side a free, unconscionable option? — who can say?
And as for waivers — especially when your credit department is in the thrall of setting NAV triggers it doesn’t monitor and isn’t likely to to exercise — by the lights of this clause you must formally confirm these waivers in writing, which is a profound waste of everyone’s time.
Three: Good luck reconciling the above with the {{{{{1}}}|Counterparts and Confirmations}} clause, which says, rightly, that the binding action on a {{{{{1}}}|Transaction}} is the moment the parties first agree it — that is, as likely as not, a phone call or Bloomberg chat, or in volume products, an electronic handshake between booking systems. Since a {{{{{1}}}|Transaction}} is a modification to the ISDA Master Agreement, the words above ring a bit hollow.
BUT ANYWAY.