Transfer of Title - CSA Provision

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CSA Anatomy


In a Nutshell Section 5(a):

5(a) Transfer of Title. All right, title and interest to any Eligible Credit Support, Equivalent Credit Support, Equivalent Distributions or Interest Amount transferred under this Annex will vest in the recipient free of any encumbrances or other interests (other than usual clearing system liens).
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1995 ISDA CSA full text of Section 5(a):

5(a) Transfer of Title. Each party agrees that all right, title and interest in and to any Eligible Credit Support, Equivalent Credit Support, Equivalent Distributions or Interest Amount which it transfers to the other party under the terms of this Annex shall vest in the recipient free and clear of any liens, claims, charges or encumbrances or any other interest of the transferring party or of any third person (other than a lien routinely imposed on all securities in a relevant clearance system).
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Related Agreements
Click here for the text of Section 5(a) in the 1995 English Law CSA
Click here for the text of Section 5(a) in the 2016 English Law VM CSA
Click [[{{{3}}} - NY VM CSA Provision|here]] for the text of the equivalent, Section [[{{{3}}} - NY VM CSA Provision|{{{3}}}]] in the 2016 NY Law VM CSA
Comparisons
1995 English Law CSA and 2016 English law VM CSA: click for comparison
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Resources Full wikitext | Nutshell wikitext
Navigation 1 (Interpretation) | 2 (Credit Support Obligations) | 3 (Transfers, Calculations and Exchanges) | 4 (Dispute Resolution) | 5 (Title Transfer etc) | 6 (Default) | 7 (Representation) | 8 (Expenses) | 9 (Miscellaneous) | 10 (Definitions) | 11 (Elections and Variables)

Index — Click ᐅ to expand:

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If you must say it, don’t ask five industry associations to get together at once to explain it to you.

Clearing system liens

A little bit of “well, it really ought to go without saying but, hell, you are derivatives lawyers, so we know that’s not how you roll” drafting.

In these modern, dematerialised times, the securities in a clearing system — that is, pretty much all securities — exist only as entries in a ledger maintained by the clearing system. The individual securities are not security-printed, physical things. [1]

In any case, like all good intermediaries, the clearing system gets fees from participants for being a clearing system. To guard against non-payment of these fees, it keeps a lien on all global securities it holds.

Now all this sits a long way down the stack of turtles that makes up the modern metaphysical financial system — almost so deep as to be beyond the paranoid articulations of an ISDA ninja — but, as you can see, not quite.

The big difference between 1994 New York law CSAs and English law CSAs: title transfer and pledge

This feels as good a time as any to raise the great subject of title transfer and pledge. Under a 1994 New York law CSA one transfers Credit Support by means of pledge. Under a English law CSA one transfers Credit Support by means to title transfer.

What is the difference? Well, in a Nutshell:

Title transfer under a English law CSA

Under a “title transfer collateral arrangement” when a party provides collateral it transfers it to the other party outright and absolutely: it gives it, free of all reversionary interests, to the Transferee.

Pledge under a 1994 New York law CSA (and a English law CSD)

Examples: The 1994 New York law CSAs and the English law CSD are security financial collateral arrangements in that the Pledgor creates a security interest over the document in favour of the Secured Party, but retains beneficial ownership of the assets.

Transaction” versus “Credit Support Document” complicated affair.

English law CSAs are Transactions but are not Credit Support Documents. 1994 New York law CSAs are Credit Support Documents but are not Transactions.

Because ownership transfers absolutely, the Transferee doesn’t have to do anything to enforce its collateral. It already owns it outright. Indeed, to the contrary, should the Exposure that the collateral supports disappear, the Transferor will be the creditor of the Transferee. It is as it it were a Transaction under the ISDA where the mark-to-market exposure had flipped around. Indeed, a English law CSA is a “Transaction” under the ISDA Master Agreement — it is an integral part of the ISDA Master Agreement itself, and it is the proverbial schoolboy error to label a English law CSA as a “Credit Support Document”. It is not a Credit Support Document. From the point of view of the ISDA architecture it is the Confirmation for a Transaction.

But the 1994 New York law CSAs are not Transactions, for the same reason: title doesn’t change hands. They are old fashioned security arrangements. Therefore they 'are Credit Support Documents in the labyrinthine logic of ISDA’s crack drafting squad™. This all no doubt must have seen an excellently complex thing for the little gnomes in ISDA’s crack drafting squad™when they were devising the idea of the CSA back in the early nineties. Nowadays, it just seems silly. But here we are, folks.

See also

References

  1. See common depositary for more information.
  2. This doesn't stop triparty agents requiring title transfer providers to grant their counterparties a right of reuse.