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Template:M gen 2002 ISDA 12: Difference between revisions
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===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?) | |||
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=== | |||
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. | |||
===“[[Deliver]]”=== | ===“[[Deliver]]”=== | ||
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===[[Email]] vs [[electronic messaging system]]=== | ===[[Email]] vs [[electronic messaging system]]=== | ||
The well-intended and, we think, presumed harmless — even ''modern'' — addition of [[email]] in the {{2002ma}}, ''in addition to'' “[[electronic messaging system]]”, persuaded the [[Chancery Division]] of the High Court to conclude that “[[electronic messaging system]]” and “[[email]]” are mutually exclusive things, rather than a basic commentary on {{icds}} inability to let things go — a conclusion which the [[JC]] finds hard to accept, as you will see if you read the {{casenote|Greenclose|National Westminster Bank plc}} case note. | [[File:Faxpaper.png|250px|thumb|left|A John Grisham McGuffin yesterday. well, in about 1986 actually.]]The well-intended and, we think, presumed harmless — even ''modern'' — addition of [[email]] in the {{2002ma}}, ''in addition to'' “[[electronic messaging system]]”, persuaded the [[Chancery Division]] of the High Court to conclude that “[[electronic messaging system]]” and “[[email]]” are mutually exclusive things, rather than a basic commentary on {{icds}} inability to let things go — a conclusion which the [[JC]] finds hard to accept, as you will see if you read the {{casenote|Greenclose|National Westminster Bank plc}} case note. | ||
===CSA=== | ===CSA=== | ||
Note that the {{csa}} subjects its notice provisions to this provision (see Paragraph {{csaprov|9(c)}} and {{csaprov|11(g)}}. | Note that the {{csa}} subjects its notice provisions to this provision (see Paragraph {{csaprov|9(c)}} and {{csaprov|11(g)}}. | ||