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[[Party A and Party B - ISDA Provision|In this episode]] of the JC’s series of unfeasibly deep explorations of superficially odd things in the [[ISDA]] metaverse, consider the bilateral nature of the {{isdama}} and its curious designators: “{{isdaprov|Party A}}” and “{{isdaprov|Party B}}”, and that curious descriptor of both of them: “[[counterparty]]”.  
{{quote|{{D|Bilateral|/ˌbaɪˈlætᵊrᵊl/|adj}}Having, or relating to, two sides; affecting both sides equally.}}


These set the ISDA apart; give it a sort of otherworldly aloofness; a sense almost of social justice. Other banking and broking transactions use labels which help you orient who, in the [[power structure]], is who: a loan has a “Lender” (always the bank) and “Borrower” always the punter. A brokerage has “Broker” (master) and “Customer” (servant).  
{{drop|[[The bilaterality, or not, of the ISDA|I]]|n this episode}} [[JC]] considers the “bilateral” nature of the {{isdama}}, why swap participants alone amongst financial players are called “[[counterparty|counterparties]]”, and what this confusing “{{isdaprov|Party A}}” and “{{isdaprov|Party B}}” business is all about.  


But not the {{isdama}}. From the outside its framers — the [[First Men]] — opted for the more gnomic, interchangeable “{{isdaprov|Party A}}” and “{{isdaprov|Party B}}”.
The unpresumptuous way it labels the parties to a Transaction sets the ISDA apart from its fellow [[finance contract]]s. They give it a sort of otherworldly aloofness; a sense of utopian equality. Other [[finance contract]]s label their participants to make it clear who, in the [[power structure]], is who: a [[loan]] has a “[[Lender]]” — the [[bank]]; always the master — and a “[[Borrower]]” — the punter; always the servant. A brokerage agreement has a “[[Broker]]” (master) and a “[[Customer]]” (servant).  


Why? Well, we learn it from our first encounter of an ISDA Schedule. ''[[The bilaterality, or not, of the ISDA|bilaterality]]''.
Okay, I know ''theoretically'' the master/servant dynamic is meant to be the other way around — the customer is king and everything — but come on: when it comes to finance it isn’t, is it? We are ''users'', all hooked up to the great battery grid, for the pleasure of our banking overlords and the [[The domestication of law|pan-dimensional mice]] who control them.


===Bilaterality===
But not when it comes to the {{isdama}}. From the outset, the [[First Men]] who framed it opted for the more gnomic, interchangeable and ''equal'' labels “{{isdaprov|Party A}}” and “{{isdaprov|Party B}}”.
A belief in even-handedness gripped the ones whose [[deep magic]] forged the runes from which the [[First Swap]] was born.  


For most finance contracts imply some sort of dominance and subservience: a large institutional “have” indulging a small commercial “have-not” with debt finance for the privilege of which the larger “have” extracts excruciating covenants and enjoys a preferred place in the queue for repayment among the have-not’s many scrapping creditors.
Why? Well, we learn it from our supervising associate, when we first encounter a [[Schedule - ISDA Provision|Schedule]].  


But [[swaps]], as the [[First Men]] saw them, are not like that.  
''[[The bilaterality, or not, of the ISDA|Bilaterality]]''.


“A swap contract,” they intoned, “is an exchange among peers. It is an equal-opportunity sort of thing; Biblically righteous in that, under its awnings, one be neither lender nor borrower, but an honest rival for the favour of the Lady Fortune, however capricious may she be.
===Bilaterality===
 
{{drop|A|belief in}} even-handedness gripped the ones whose [[deep magic]] forged the runes of that ancient [[First Swap]]. It has not just a two-sided structure — most private contractual arrangements have that — but a ''symmetrical'' one, lacking the dominance and subservience that traditional finance contracts imply.  
“We are equals. Rivals. ''Counterparties''”. Covenants, privileges of credit support and so on may flow either way. They may flow ''both'' ways. In our time of [[regulatory margin]], they usually do.
 
And, to be sure, swaps ''are'' different from loans and brokerage arrangements. They start off “at market” where all is square. Either party may be long or short, fixed or floating. At the moment the trade is struck, the world infused with glorious ''possibility''. One fellow’s fortunes may rise or fall relative to the other’s and, as a result, she may ''owe'' (“[[out-of-the-money]]”) or ''be owed'' (“[[in-the-money]]”). And swaps, too, are professional instruments. Moms and pops, [[Belgian dentist]]s and the like may buy bonds, but they din’t, and never have, entered {{isdama}}s.<ref>They may enter [[contracts for difference]] and spread bets from brokers, but these are standardised, smaller contracts.</ref>
 
Now the {{isdama}} ''itself'' never uses the terms “Party A” or “Party B”.  Being genuinely bilateral, it never has to. The labels are arbitrary assignations that apply at trade level. Thus, they only appear in the {{isdaprov|Schedule}} and in {{isdaprov|Confirmation}}s, to be clear who is who on a given trade: who is paying the fixed rate and who the floating; which thresholds, maxima, minima, covenants, details, agents and terms apply to which counterparty. This much is necessarily different. Nothing beyond: the {{isdama}} assumes you already know who is who, having agreed it in the {{isdaprov|Schedule}}.
 
So we agree: for this relationship we will call you “Party B”, and me “Party A”.
 
These colourless and generic terms hark from a time where, we presume, the idea of “find and replace all” in an electronic document seemed some kind of devilish black magic. Some kind of [[Tipp-Ex]]-denying subterfuge.
 
But anyway. These generic labels still lead to practical difficulties. A [[dealer]] with ten thousand counterparties in its portfolio wants to be “Party A” every time, just for peace of mind and literary continuity when perusing its collection of Schedules, as we know [[dealer]]s on occasion are minded to do.<ref>They are not.</ref> If, here and there, a dealer must be “Party B”, this can lead to anxious moments should one misread such a Schedule and infer its infinite [[IM]] {{csaprov|Threshold}} applies to the other guy, when really, as it ought, it applies to you. Frights like this are, in their way, quite energising.
You quickly get over them when you realise it is your error of construal, not the negotiator’s of articulation.
 
Less energising are actual errors: as a group, [[negotiator]]s are redoubtable, admirable creatures but, like all of us fallible and prone to oversight: they may, by lowly force of habit, forget to invert the “Party” labels when inserting the boilerplate {{isdaprov|PPF Event}} rider for that one time in a thousand when the firm is not “Party A”. It is easily done, and just the sort of thing a [[four-eyes check]] will also miss: If it does, no-one will never know — ''unless and until it is too late''.
 
===''Is'' it bilateral though?===
But there is a better objection: for all our automatic protestations to the contrary, the ISDA is not ''really'' a bilateral contract, and it ''is'' often financing contract, in economic effect even if not in formal structure. Where there is a customer gaining exposure to a risk and a dealer providing delta-hedged exposure to that risk, a swap is a sort of “synthetic loan”.
 
You could analyse an interest rate swap as off-setting fixed rate and floating rate loans. Seeing as the same amount of principal in the same currency flows in both directions at the same time, the principal flows cancel each other out — they “net” to zero.
 
“Aha, JC: quite so. But this implies, does it not, that the parties are ''not'' lending to each other?”
 
The difference is in how the two sides manage their respective positions.
 
We should not let ourselves forget: beyond the cramped star system of inter-dealer relationships, there is a boundless universe where one party is a “dealer” and the other a “customer”. This is the great majority of all ISDA arrangements. 
 
The roles of ''customer'' and ''dealer'' are different. The difference does not depend on who is “long” and who “short”, nor on who pays the fixed rate and who pays the floating. Hence, the expressions “[[sell side|sell-side]]” — the dealers, who ''sell'' exposure — and “[[buy side|buy-side]]” — their customers, who ''buy'' it.
 
For the customer the object of transacting is to ''change'' its market exposure: to get into a positions it did not have before, or get out of one it did. This sounds obvious. But, being a bilateral contract, you might think it follows that the dealer is changing its position, too. But it is not. A dealer is there to provide exposure without taking any itself, and thereby to earn a commission. The dealer intends to say ''flat''.   
 
Now, a swap is a principal obligation, so entering into one necessarily does changes the dealer’s  exposure — but the dealer must then “[[Delta-hedging|delta hedge]]” its position away, executing an offsetting position somewhere else. It might do this by buying the underlying asset, of futures, or entering into a offsetting swap by which matches off its  “long” exposure against another “short” exposure with another counterparty.   
 
There are plenty of ways to [[delta hedge]], but the basic economic principle is that the dealer has not changed its market position. It has not, over all, made an investment. It has not borrowed anything.     
 
Provided the [[dealer]] knows what it is about, its main risk in running a swap portfolio is not therefore market risk — it should not really have any — but ''customer credit'' risk. Should a customer fail, the dealer’s book is no longer matched: its hedge is now an outright position. 
 
Hence, having adequate collateral from each customer, to cover the risk that it fails, is very important. 
 
==== Swaps are usually synthetic loans ====
But how does this make a swap into a “synthetic loan”? Compare a swap with an actual loan:
 
{{Quote|{{divhelvetica|
[[Hackthorn Capital Partners]] owns USD10m of AUM. It wishes to buy USD10m of [[Cryptöagle]]. It can either: ''sell'' its existing AUM and use the proceeds to buy Cryptöagle, or ''keep'' its existing portfolio and borrow USD10m.
 
'''Sale'''<br>
If it sells its existing portfolio outright, the position is as follows:
:Sold: USD10m.
:Borrowed: Zero.
:Amount owed: Zero.
:Bought: 10m Cryptöagle @ USD1 per share.
:Amount due: [[total return swap|total return]] on 10m Cryptöagle.
'''Loan'''<br>
If it keeps its existing portfolio and borrows, the position is as follows:
:Sold: Zero.
:Borrowed: USD10m.
:Amount owed: floating rate on USD10m.
:Bought 10m of Cryptöagle @ USD1 per share.
:Amount due: [[total return swap|total return]] on 10m existing portfolio and 10m Cryptöagle.}}}}
 
Note the cashflows in the loan scenario: 
 
{{Quote|{{divhelvetica|
During the loan, Hackthorn pays a floating rate on USD10m and is exposed to the market price of [[Cryptöagle]].
 
On termination, Hackthorn sells [[Cryptöagle]] to repay the loan. If sale proceeds exceed the loan repayment, Hackthorn keeps the difference. If they don’t, Hackthorn must fund the shortfall from its portfolio and book a loss.
 
Hackthorn’s net exposure is therefore: ''USD10m - Cryptöagle spot price''.
}}}}
 
These are the same cash flows you would expect under a delta-one equity derivative:
 
{{Quote|{{divhelvetica|
During swap, Hackthorn pays floating rate on USD10m and dealer pays total return on Cryptöagle. On termination, if the swap termination amount is negative, Hackthorn pays it to dealer. If it is positive, dealer pays Hackthorn. <br>
The swap termination payment is ''USD10m - Cryptöagle spot price''.
}}}}
 
Like a loan, the equity swap gives Hackthorn exposure to [[Cryptöagle]] whilst keeping its existing portfolio, which Hackthorn uses to fund cashflows on its new capital asset. This is a form of ''[[leverage]]''. The floating rate Hackthorn pays is ''implied funding''. The dealer will only accept this if it is satisfied Hackthorn has enough capital to finance its swap payments and settle any differences at termination. This is the same risk calculation a bank lender would make.<ref>To keep it simple, I have ignored the scope for synthetic margin loan and rehypothecation.</ref>
 
But, hang on: this is a bilateral arrangement, so isn’t the converse true of the dealer?
 
Isn’t the dealer paying the cashflow of the asset to get exposure to the floating rate in the same way? Isn’t it, in a sense, “borrowing” by paying a total return? Or look at it this way: is not a “short” swap position, for a dealer, exactly the same as a “long” swap position for a customer?
 
Generally not, because in providing these swap exposures to its customers, the dealer is not changing its own market position. It delta-hedges. At the same moment it puts on a swap, it executes an offsetting hedge. The dealer’s net position on its derivative book will generally be flat. You don’t need to borrow money to take no position.<ref>The  dealer may need to borrow money to fund its hedge, but this is exactly what the customer’s floating rate pays for. This is “borrowing on the customer’s behalf”.</ref>
 
==== On the case for one-way margin ====
In recent years — ironically, just as the “dealer” vs “customer” dynamic has become more pronounced<ref>After the [[GFC]], bank proprietary trading fell away to almost nothing.</ref> — the global regulatory-industrial complex,<ref>This label is not just sardonic: there really is a cottage industry of of “regulatory change management professionals” who owe their last decade’s livelihood to ''accommodating'' quixotic regulatory initiatives like this. They are a powerful lobby with a direct interest in maintaining the rate of regulatory churn.</ref> still fighting last decade’s war, has forged rules which overlook this. Notably, the coordinated worldwide approach to bilateral [[regulatory margin]]. As swap positions move in and out of the market, swap counterparties must post each other the cash value of the net market movements each day. This is a little like closing positions out at the end of each day and settling up, with a key difference: you ''don’t'' close out your positions. The parties are still on risk.
 
Well — ''one'' of them is. The customer: the one who initiated the trade, to put itself into a market position of some sort. The other party, remember, is delta-hedged. It didn’t initiate the trade, but accommodated it, on the precise grounds that its market position would not change, and its credit position, against the customer, would be satisfactory.
 
Requiring margin from a customer who is net out-of-the-money makes sense: if the customer fails, the dealer’s corresponding hedges are defeated and it will be left with an open market exposure to all of the customer’s positions. This is exactly what the dealer wants to avoid. It is meant to be flat. So, daily [[variation margin]] mitigates the dealer’s market risk to date; [[initial margin]] covers it for the forward market risk while it closes out its hedge portfolio against the defaulted client. As long as the dealer is covered, market disruption is minimised, and the dealer’s own solvency — which, due to its interconnection with the rest of the market may well present a systemic risk — is not threatened.
 
Requiring a dealer to post margin to its customer against the customer’s net in-the-money position makes no sense whatsoever:
 
First, customers are trading their capital, dealers are not. Dealers are [[delta-hedge]]d against every customer. They are not “the other side of the trade”. A dealer’s “position” against a given client being “under water” in itself does not change the dealer’s risk of insolvency.  Of course, dealers ''do'' present a risk of insolvency, and customers will have tolerate so much exposure to that risk, but the customer has other levers to manage that risk. They can close out their position, take profits and re-establish the position the new level, for one thing. That enables the dealer to close out its hedge, pass on the hedge gains and reset hedges and initial margin at the higher level. This is not the same has paying the mark-to-market of a unrealised swap. To be sure, customers might not ''like'' doing this — realising a taxable gain and having to stump up more [[initial margin]] when you re-establish the position blows, for sure — but none of these are good reasons for anyone but the customer concerned. Withholding variation margin on profitable positions giving customers the choice: keep your position open and your money with the dealer and live with its solvency risk, ''or book your gain and get your money back and start again — encourages prudent behaviour. If nothing else it incentivises customers to diversify their risk. And it does not automatically lever up the customer’s portfolio. For what do we think the customer will ''do'' with all that free cash [[VM]] its dealer keeps sending it?  If it was planning to just sit on it, wouldn’t just — ''leave it at the bank''?
 
Secondly, [[dealer]]s and [[bank]]s are already capitalised and regulated for systemic risk.<ref>[[Broker/dealer]]s that are not deposit-taking banks are more lightly capitalised. But nor — for that very reason — can they hold customer assets and cash on their balance sheet, but must hold it on trust for customers with a client money bank that ''is'' capital regulated.</ref> There are already constraints on how they must operate, and how much capital they must hold against the contingency of portfolio losses. It holds this capital, in large part, to protect against the risks presented to it ''by its customers''. Customers like thinly capitalised, highly-levered investment funds.
 
That risk is amplified if dealers must pay away their own cash to reflecting their clients’ unrealised gains on a derivative portfolio already 70% financed by the dealer. It's just mad: “Hi. You owe me 70pc of the value of the stock you bought largely with my money, and you want  ''me'' to pay you margin if the stock goes up?”
 
This is all the more mad where the dealer is hedging with a physical asset. No-one pays variation margin on gains on a physical asset.<ref>Dealers can, and do, manage this by financing their physical portfolios. They would do this anyway, but variation margin requirements more or less oblige then to.</ref>


Now you might make the case that this capital regulation has been a bit of disaster, and some have<ref>Notably Gerd Gigerenzer, who has tracked the expansion in length of the Basel accords against the persistent rate of bank failure.</ref> but one lot of crappy regulations is not a prescription for ''more'' crappy regulations. Even if, as in this case, the new regulations were also proposed by the Basel committee too.<ref><ref> Especially not when they undermine the first lot.  
In the ISDA there is not — ''necessarily'' — a large “have” indulging a small “have-not” with favours of loaned money, for which it extracts excruciating [[covenant]]s, gives not a jot in return, and enjoys a preferred place amongst the [[customer]]’s many scrapping creditors.


And this is ''exactly'' what bilateral variation margin does. Capital is the measure of “unallocated cash” available to meet the claims of general creditors. Cash being fungible, ''any'' cash on the balance sheet counts towards the capital ratio. A counterparty with an uncollateralised paper gain of $100m against a dealer still has a claim to that $100m: it can close out at any time, and even if the dealer fails first ''it still has a claim on that amount from the dealer’s capital reserves''. It is just lining up with other creditors who also have claims.
[[Swaps]], as the [[First Men]] saw them, would not be like that. Not ''necessarily''.


===Voluntary margin===
“A swap shall be an exchange among peers: an equal-opportunity, righteous sort of thing under whose auspices, one is neither lender nor borrower, but simply an honest rival for the favour of Lady Fortune, however capricious may she be. Those who ''swap'' things are not master and servant, but ''rivals''.  
No-one of this stops the dealer recognising the “equity” in a customer’s unrealised [[mark-to-market]] gains and extending credit — increasing lines — against it. This is what margin lenders and cash prime brokers do every day of the week.  


But this lending is discretionary, and dealers can apply the haircuts, credit terms and diversification criteria as they see fit. The dealer can decide where and when to draw its lines.  
“Let us call them ''Counterparties''.”


Imagine if lending banks were ''forced'' to pay mortgage customers the value of unrealised gains on their house prices. Imagine how much worse the global financial crisis would have been then.  
This foundation myth imagines “swaps” in a pure, innocent, trading-bubble-gum-cards-in-the-playground way.  


“But, but, but, JC: there is a difference. Where a house is concerned, the customer owns the house.  It has no credit exposure to the bank for the house. If the bank fails, the customer keeps its house. With a swap, the customer would lose everything. All this is true. But, equally the customer’s personal capital outlays for that house — its real investment — is 20% (at the time of the GFC it might have been closer to 0%). This is a levered play.  
“I have two Emerson Fittipaldis, you have two Mario Andrettis, we can increase each other’s net happiness and thereby the world’s by swapping so we both have one of each.”


The same is true of a derivative exposure. It is an implied loan. The customer puts down its initial margin — economically equivalent to a deposit — and gets the return of the whole asset. The bank’s interest is to optimise its funding and to earn a commission on the opening and closing of the trade. It agrees to lend 70 percent of the starting value of the asset. If the customer wants to isolate its credit exposure from the dealer, it can take out a margin loan against a physical asset, just like a mortgage. Or it can take its profit, close out its trade and find out the terms on which the dealer will reset.
In the playground there are no brokers or dealers of bubble gum cards to intermediate, make markets and provide liquidity, let alone a trusted central clearer. It is a peer-to-peer, decentralised marketplace.<ref>Oh, wait. Hang on. There ''was''. It was Peason Minor in 3B. That made a two-way market in foopballers, F1 drivers and Top Trumps military planes and supercars. That guy was incredible. Wonder what he’s doing now. [''CIO at GSAM — Ed.''] Okay so most metaphors don’t bear close examination.</ref>


For several reasons:
And, to be sure, swaps ''are'' different from [[loan]]s and brokerage arrangements. They start “at market”, where all is square. Either party may be long or short, fixed or floating: at the moment the trade is struck, the world infused with glorious possibility.


Banks are Banks are not losing value on the customer positions: as per the above, they are delta-hedged. Banks have no market exposure unless their clients go bust.
One fellow’s fortunes may rise or fall relative to the other’s and, as a result, she may ''owe'' (in the vernacular, be “[[out-of-the-money]]”) or ''be owed'' (“[[in-the-money]]”) at different times as the transaction wends its way to maturity.  


Banks generally go bust because their clients go bust. They don’t go bust by themselves—I know, I know, Silicon Valley Bank did, but it is an honourable exception that proves the rule.
Covenants, collateral, credit support and so on may, thereby, flow either way. They may flow ''both'' ways. In our time of [[regulatory margin]], they usually do.


If we are worried about bank solvency, then forcing the bank to cash settle unrealised gains on derivatives portfolios is a bad idea.
And swaps, too, are the preserve of professional investors, who know what they are doing. Usually, they know it better than the bank employees they face, having once themselves ''been'' bank employees. Mums and dads, [[Belgian dentist]]s and the like may take loans, buy bonds, have a flutter on the share market and even trade cryptocurrencies but they don’t, and never have, entered {{isdama}}s.<ref>They may trade [[contracts for difference]] and make spread bets with brokers, but these are standardised, smaller contracts.</ref> The ISDA is for grown-ups. Equals.


“settling to market” every day with an important distinction: you don
So much so that, other than below the dotted lines where you type the counterparty names, the pre-printed part of {{isdama}} itself does not even use the expressions “{{isdaprov|Party A}}” or “{{isdaprov|Party B}}”. Being genuinely bilateral, it never has to.


Banks are independently capital regulated for solvency.
Party-specific labels are only needed once the studied symmetry of the Master Agreement gives way to the need, articulated in in the {{isdaprov|Schedule}} and {{isdaprov|Confirmation}}s, to stipulate who is taking which side on a given trade, giving which covenant or submitting to which {{isdaprov|Additional Termination Event}}.  


Swap counterparties are sophisticated professionals with the tools and resources to monitor credit exposure to their dealers and brokers. (We take it that understanding the [[financial weapons of mass destruction]] that these sophisticates truck in require more ninja wizardry than does weighing up the creditworthiness of a regulated financial institution).
The parties may be equals, but we still need to know who is going to pay the [[fixed rate]] and who the [[Floating rate|floating]]; which thresholds, maxima, minima, covenants, details, agents and terms apply to which party. This much is necessarily different. Nothing beyond: the {{isdama}} assumes you already know who is who, having agreed it in the {{isdaprov|Schedule}}.


It is a much better discipline for sophisticated counterparts to manage their credit exposure — spread it around, so to speak, than to require their banks to send hard cash out the door as collateral to clients with outsized exposures.  
So we agree: for this swap trading relationship we will call you “Party B”, and me “Party A”. Beyond these colourless labels, we are equal.


Every dollar these banks pay away reduces the capital buffer the bank has available for everyone else.  It also provides the customer with free money on an unrealised [[mark-to-market]] position. This is like paying out while the roulette wheel is still spinning, in the expectation of where the ball might land. That is a loan: if the customer doubles down and loses, you don’t get your money back.  
But they are maddeningly forgettable labels: harking from a time where the idea of “find and replace all” in an electronic document seemed like [[Tipp-Ex]]-denying, devilish magic. It might have been easier — and saved some curial angst— had parties been able to use ''unique'' identifying labels across their agreement portfolios.  


Daily mark to market moves are mainly ''noise''. Yet this is what parties must collateralise against. A great deal of the back-and-forth of variation margin is accomodating noise
{{Quote|It was, I am afraid, a rather sloppily drafted document. First, it described LBIE as Party A and LBF as Party B, contrary to the Schedule which gave them the opposite descriptions.
. The signal emerges over a prolonged duration. Over the short run posted collateral can, as we know a system effect: if I double down on an illiquid position, it will tend to rise, and I will get more margin, and — this is the story of [[Archegos]].
:—Briggs, J, in ''Lehman Brothers International (Europe) v. Lehman Brothers Finance S.A.'' [2012] EWHC 1072 (Ch)}}


The increased systemic exposure of banks failing — which is what the margin regs were designed to address — is not caused by the banks themselves, but by their client exposures. Client exposures in turn are a function of client failures, which are in turn a function of leverage
Being ''so'' generic, the “Party A” and “Party B” labels can lead to practical difficulties: a [[dealer]] with thirty thousand counterparties wants to be “Party A” every time, just for peace of mind and literary continuity when perusing its collection of Schedules, as we know [[dealer]]s on occasion are minded to do.<ref>They are not.</ref> This is not just a matter of having to play in your “away strip” every now and then: if, here and there, a dealer must be “Party B”, having lost the toss to a counterparty who also insists on being Party A, this can lead to anxious moments, should one have momentarily forgotten the switch during the negotiation and assigned your carefully-argued infinite [[IM]] {{csaprov|Threshold}} to the other guy.


Their failure shouldn't, typically, be a systemic risk unless their unusually size, interconnectedness or unintended system effects ''make'' them systematically important, in which case they should be regulated if they are systemically important, and made to hold capital, and (b) they have the market position and bargaining power to negotiate margin terms.
Frights like this are quite energising, if you pick them up during the “four eyes check” at the conclusion of [[onboarding]].<ref>You won’t.</ref> Less so, when Briggs J catches them for you when handing down a judgment from the commercial division of the High Court.<ref>He will.</ref>

Latest revision as of 09:38, 4 February 2024

Bilateral
/ˌbaɪˈlætᵊrᵊl/ (adj.)
Having, or relating to, two sides; affecting both sides equally.

In this episode JC considers the “bilateral” nature of the ISDA Master Agreement, why swap participants alone amongst financial players are called “counterparties”, and what this confusing “Party A” and “Party B” business is all about.

The unpresumptuous way it labels the parties to a Transaction sets the ISDA apart from its fellow finance contracts. They give it a sort of otherworldly aloofness; a sense of utopian equality. Other finance contracts label their participants to make it clear who, in the power structure, is who: a loan has a “Lender” — the bank; always the master — and a “Borrower” — the punter; always the servant. A brokerage agreement has a “Broker” (master) and a “Customer” (servant).

Okay, I know theoretically the master/servant dynamic is meant to be the other way around — the customer is king and everything — but come on: when it comes to finance it isn’t, is it? We are users, all hooked up to the great battery grid, for the pleasure of our banking overlords and the pan-dimensional mice who control them.

But not when it comes to the ISDA Master Agreement. From the outset, the First Men who framed it opted for the more gnomic, interchangeable and equal labels “Party A” and “Party B”.

Why? Well, we learn it from our supervising associate, when we first encounter a Schedule.

Bilaterality.

Bilaterality

Abelief in even-handedness gripped the ones whose deep magic forged the runes of that ancient First Swap. It has not just a two-sided structure — most private contractual arrangements have that — but a symmetrical one, lacking the dominance and subservience that traditional finance contracts imply.

In the ISDA there is not — necessarily — a large “have” indulging a small “have-not” with favours of loaned money, for which it extracts excruciating covenants, gives not a jot in return, and enjoys a preferred place amongst the customer’s many scrapping creditors.

Swaps, as the First Men saw them, would not be like that. Not necessarily.

“A swap shall be an exchange among peers: an equal-opportunity, righteous sort of thing under whose auspices, one is neither lender nor borrower, but simply an honest rival for the favour of Lady Fortune, however capricious may she be. Those who swap things are not master and servant, but rivals.

“Let us call them Counterparties.”

This foundation myth imagines “swaps” in a pure, innocent, trading-bubble-gum-cards-in-the-playground way.

“I have two Emerson Fittipaldis, you have two Mario Andrettis, we can increase each other’s net happiness and thereby the world’s by swapping so we both have one of each.”

In the playground there are no brokers or dealers of bubble gum cards to intermediate, make markets and provide liquidity, let alone a trusted central clearer. It is a peer-to-peer, decentralised marketplace.[1]

And, to be sure, swaps are different from loans and brokerage arrangements. They start “at market”, where all is square. Either party may be long or short, fixed or floating: at the moment the trade is struck, the world infused with glorious possibility.

One fellow’s fortunes may rise or fall relative to the other’s and, as a result, she may owe (in the vernacular, be “out-of-the-money”) or be owed (“in-the-money”) at different times as the transaction wends its way to maturity.

Covenants, collateral, credit support and so on may, thereby, flow either way. They may flow both ways. In our time of regulatory margin, they usually do.

And swaps, too, are the preserve of professional investors, who know what they are doing. Usually, they know it better than the bank employees they face, having once themselves been bank employees. Mums and dads, Belgian dentists and the like may take loans, buy bonds, have a flutter on the share market and even trade cryptocurrencies but they don’t, and never have, entered ISDA Master Agreements.[2] The ISDA is for grown-ups. Equals.

So much so that, other than below the dotted lines where you type the counterparty names, the pre-printed part of ISDA Master Agreement itself does not even use the expressions “Party A” or “Party B”. Being genuinely bilateral, it never has to.

Party-specific labels are only needed once the studied symmetry of the Master Agreement gives way to the need, articulated in in the Schedule and Confirmations, to stipulate who is taking which side on a given trade, giving which covenant or submitting to which Additional Termination Event.

The parties may be equals, but we still need to know who is going to pay the fixed rate and who the floating; which thresholds, maxima, minima, covenants, details, agents and terms apply to which party. This much is necessarily different. Nothing beyond: the ISDA Master Agreement assumes you already know who is who, having agreed it in the Schedule.

So we agree: for this swap trading relationship we will call you “Party B”, and me “Party A”. Beyond these colourless labels, we are equal.

But they are maddeningly forgettable labels: harking from a time where the idea of “find and replace all” in an electronic document seemed like Tipp-Ex-denying, devilish magic. It might have been easier — and saved some curial angst— had parties been able to use unique identifying labels across their agreement portfolios.

It was, I am afraid, a rather sloppily drafted document. First, it described LBIE as Party A and LBF as Party B, contrary to the Schedule which gave them the opposite descriptions.

—Briggs, J, in Lehman Brothers International (Europe) v. Lehman Brothers Finance S.A. [2012] EWHC 1072 (Ch)

Being so generic, the “Party A” and “Party B” labels can lead to practical difficulties: a dealer with thirty thousand counterparties wants to be “Party A” every time, just for peace of mind and literary continuity when perusing its collection of Schedules, as we know dealers on occasion are minded to do.[3] This is not just a matter of having to play in your “away strip” every now and then: if, here and there, a dealer must be “Party B”, having lost the toss to a counterparty who also insists on being Party A, this can lead to anxious moments, should one have momentarily forgotten the switch during the negotiation and assigned your carefully-argued infinite IM Threshold to the other guy.

Frights like this are quite energising, if you pick them up during the “four eyes check” at the conclusion of onboarding.[4] Less so, when Briggs J catches them for you when handing down a judgment from the commercial division of the High Court.[5]

  1. ↑ Oh, wait. Hang on. There was. It was Peason Minor in 3B. That made a two-way market in foopballers, F1 drivers and Top Trumps military planes and supercars. That guy was incredible. Wonder what he’s doing now. [CIO at GSAM — Ed.] Okay so most metaphors don’t bear close examination.
  2. ↑ They may trade contracts for difference and make spread bets with brokers, but these are standardised, smaller contracts.
  3. ↑ They are not.
  4. ↑ You won’t.
  5. ↑ He will.
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