Unfortunately, based on a reputation for being somewhat boiler-plate, notice provisions are often not given the care and attention in negotiations they deserve. In practice, however, notice provisions are crucial – if they are incorrect or service of notice is impossible, you cannot enforce your rights. For the derivatives market, ISDA has proposed an innovative
In Banca Nazionale del Lavoro, Commerzbank and Dexia Credit Local v Provincia di Catanzaro [2023] EWHC 3309 (Comm), the High Court granted summary judgment in favour of the joint bank claimants against the Italian public authority, Provincia di Catanzaro (“Catanzaro”). This is the latest in a succession of cases in which Italian local authorities have relied on Italian law arguments as to capacity, authority and/or validity as a basis for arguments that English-law governed derivative transactions on standard ISDA terms and subject to exclusive English jurisdiction, to which they had agreed, are invalid.Continue Reading Respect my authority: considering capacity to enter into swaps
Effectively delivering notices under commercial contracts is not as straight-forward as it maybe ought to be, with different contracts requiring different methods of delivery, different content and different timelines. Often these boiler-plate provisions are not treated with the same vigour as the commercial provisions of a contract in negotiations, meaning they can be left containing ambiguity. And this ambiguity will also often come to light at very worrisome times, like where a default notice is being delivered to close out transactions.Continue Reading On Notice: developments in delivery of notices under the ISDA Master Agreement
In Macquarie Bank Limited v Phelan Energy Group Limited [2022] EWHC 2616 (Comm) the High Court considered what must be contained in a notice of failure to pay or notice of an early termination date under the 2002 ISDA Master Agreement for it to be effective. The findings will be of interest to parties considering closing out derivative transactions. Continue Reading You Have Been Served: Requirements for a Valid Failure to Pay Notice and Early Termination Date Notice
In Deutsche Bank v Busto [2021] EWHC 2706, the English High Court recently considered the validity of certain swap contracts entered into between an Italian public authority (“Busto”) and Deutsche Bank AG, London Branch (“DB”). The capacity of public bodies to enter into derivative contracts has been fertile ground for litigation in recent years.
Continue Reading Capacity Request: validity of swaps entered into by Italian public authorities