Template:M gen 2002 ISDA 6(f): Difference between revisions

← Older edit

Template:M gen 2002 ISDA 6(f) (view source)

Revision as of 10:05, 27 September 2021

1,428 bytes added , 27 September 2021

no edit summary

Amwelladmin

Bureaucrats, Interface administrators, Administrators

82,891

edits

@@ Line 1: / Line 1: @@
+===Red letter day for {{icds}}===
+Whatever else you might have to say about ISDA’s set off provision — and as this page demonstrates, there’s quite a bit to say — one thing that stands out is ''how appallingly drafted it is''.
+The expression, “in circumstances where there is a Defaulting Party or where there is one Affected Party in the case where either a Credit Event Upon Merger has occurred or any other Termination Event in respect of which all outstanding Transactions are Affected Transactions has occurred” will make your head spin, but it is meant to strike two contingencies: ''All'' {{isdaprov|Transactions}} are being terminated, and ''one'' Party is at fault.
+The [[’squad]]’s own pedantic approach to drafting, which separates {{isdaprov|Events of Default}} from {{isdaprov|Termination Event}}s, and labels the perpetrators differently (“{{isdaprov|Defaulting Party}}” for the former; “{{isdaprov|Affected Party}}” for the latter, is to blame here.
+In any case one would only impose Section {{isdaprov|6(f)}} set off where your counterparty has gone fully ''[[tetas arriba]]'' and you have terminated all {{isdaprov|Transactions}}. In any other cases you would effect set-offs by mutually-agreed-at-the-time payment netting, which does not require any pre-existing legal right.
 ===Cross-[[affiliate]] [[set-off]]===
-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.
+The {{2002ma}}’s {{isdaprov|Set-off}} provision refers to a “{{isdaprov|Payer}}” and “{{isdaprov|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:
@@ Line 6: / Line 15: @@
 *'''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.
+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 [[affiliate|affiliates]] is liable to challenge anyway (unless you have [[cross-guarantee]] arrangements). And in these 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===
@@ Line 12: / Line 21: @@
 Often [[broker]]s will also want to set-off where there is an {{isdaprov|Illegality}} or {{isdaprov|ATE}}. There is no specific reference to all {{isdaprov|Transaction}}s being {{isdaprov|Affected Transaction}}s but this is implied in any set-off provision by its nature:
-*If only some transactions are {{isdaprov|Affected Transactions}} and so only a portion of outstanding transactions are being terminated then there is an on-going relationship and unilateral set-off is not appropriate.
+*If only some transactions are {{isdaprov|Affected Transactions}} and so only a portion of outstanding {{isdaprov|Transaction}}s are being terminated then there is an on-going relationship and unilateral set-off is not appropriate.
-*i.e., if you ''weren't'' terminating all {{isdaprov|Transaction}}s, it would be drastic and counterproductive to a relationship to use a [[set-off]].
+*i.e., if you ''weren’t'' terminating all {{isdaprov|Transaction}}s, it would be drastic and counterproductive to a relationship to use a [[set-off]].
-*As such, the standard [[ISDA]] provision and the {{Bank}} provision are very similar in scope - the {{isdaprov|Tax Event}} and {{isdaprov|Tax Event Upon Merger}} provisions (those not caught by your wording) are more likely to only affect certain transactions and not all Transactions and therefore set-off is not likely to be relevant in such instances.
+*As such, the {{isdaprov|Tax Event}} and {{isdaprov|Tax Event Upon Merger}} provisions (those not caught by your wording) are more likely to only affect certain transactions and not all {{isdaprov|Transaction}}s and therefore set-off is not likely to be relevant in such instances.
-*'''{{isdaprov|Force Majeure}}''': The {{1992ma}} contains no {{isdaprov|Force Majeure}} provision. Commercially, it is not likely that an [[ISDA]] would be closed-out as a result of a {{isdaprov|Termination Event}} as these are generally viewed as non-fault and set-off would generally not be relevant.
+*'''{{isdaprov|Force Majeure}}''': The {{1992ma}} contains no {{isdaprov|Force Majeure}} provision. Commercially, it is not likely that an {{isdama}} would be closed-out as a result of a {{isdaprov|Termination Event}} as these are generally viewed as non-fault and [[set-off]] would generally not be relevant.
-*'''{{isdaprov|Illegality}}''' does allow either party to terminate but this is limited to all {{isdaprov|Affected Transaction}}s which may not result in a [[close-out]] of the entire [[ISDA]]. In fact, the definition used of Affected Transactions makes it clear that in the cases of Illegality, Tax Event Upon Merger or Tax Event then it will only be transactions affected by the Termination Event that are closed-out. In relation to ATEs and CEUM this will be all Transactions and so set-off is relevant.
+*'''{{isdaprov|Illegality}}''' does allow either party to terminate but this is limited to all {{isdaprov|Affected Transaction}}s which may not result in a [[close-out]] of the entire {{isdama}}. In fact, the definition used of {{isdaprov|Affected Transaction}}s makes it clear that in the cases of {{isdaprov|Illegality}}, {{isdaprov|Tax Event Upon Merger}} or {{isdaprov|Tax Event}} then it will only be transactions affected by the {{isdaprov|Termination Event}} that are closed-out. In relation to {{isdaprov|ATE}}s and {{isdaprov|CEUM}} this will be all {{isdaprov|Transaction}}s and so set-off is relevant.