Court of Appeal rules on key provisions of the ISDA Master Agreement

​Section 2(a)(iii) of the ISDA Master Agreement was relevant to each of the appeals. Section 2(a)(iii) provides, amongst other things, that the obligation of each party to make each payment or delivery specified in each Confirmation to be made by it is subject to the condition precedent that no Event of Default or Potential Event of Default with respect to the other party has occurred and is continuing.

In a unanimous judgment, the key findings were as follows:

a) where there is an Event of Default or Potential Event of Default with respect to one party on the due date for payment or delivery, the other party's obligation to pay or deliver is suspended by Section 2(a)(iii) until either the Event of Default or Potential Event of Default is cured or an Early Termination Date occurs or is designated, but is not extinguished;

b) there is no implied term in the ISDA Master Agreement that payment and delivery obligations suspended by Section 2(a)(iii) revive after a reasonable time or on the last scheduled date for payment or delivery under the Transaction or under all Transactions;

c) payment or delivery obligations suspended by Section 2(a)(iii) do not expire on the last scheduled date for payment or delivery or otherwise by "effluxion of time";

d) when making the calculation required by Section 6 following an Early Termination Date, all outstanding Transactions (including those where the last date for performance has passed prior to the Early Termination Date) must be taken into account as part of the close-out netting mechanism;

e) the payment netting provision in Section 2(c) applies where one of the parties is subject to an Event of Default or Potential Event of Default on the payment date, and therefore operates irrespective of Section 2(a)(iii), but only in respect of amounts expressed to be payable on that date (and not amounts due and remaining unpaid in relation to any earlier payment date);

f) on the facts of the appeal in which the issue was raised, the operation of Section 2(a)(iii) does not contravene either the anti-deprivation principle of English insolvency law or the pari passu rule of distribution in an English liquidation; and;

g) a party calculating payments due on early termination in accordance with the Loss payment measure must do so assuming satisfaction of each applicable condition precedent (including Section 2(a)(iii) (1)).

Background

Common to all four appeals was the effect of Section 2(a)(iii) of the ISDA Master Agreement. In the first two appeals, the court considered the effect of Section 2(a)(iii) where no Early Termination Date has been designated. In the third and fourth appeals, the court considered whether Section 2(a)(iii) affects the calculation of the net close-out amount due after the occurrence of an Early Termination Date. During the course of its judgment, the court referred to a number of decisions at first instance that have considered the rights and obligations of parties following an Event of Default under an ISDA Master Agreement. All four appeals primarily addressed the position in the 1992 version of the ISDA Master Agreement, however the 2002 version was also considered in relation to the first appeal and the reasoning and conclusions of the court generally apply to both versions. The 1987 version was considered (as discussed below) in relation to one point to assist interpretation.

ISDA (represented by Allen & Overy LLP, Antony Zacaroli Q.C. and Jeremy Goldring) was granted permission to intervene in the appeals, having previously been permitted to intervene in Firth Rixson at first instance.

First appeal (Lomas v Firth Rixson)

The parties had not specified Automatic Early Termination (AET) as being applicable and, following the appointment of administrators, large sums would, but for the Event of Default, have been due from each Non-defaulting Party to LBIE. Each Non-defaulting Party elected not to designate an Early Termination Date and, instead, relied on Section 2(a)(iii) as the basis for not making further payments to LBIE. Each of the relevant Transactions came to the end of its term, or would shortly do so, by the time judgment was handed down.

Second appeal (LBSF v Carlton)

The second appeal involved two linked interest rate swaps entered into between Lehman Brothers Special Financing Inc (LBSF) and Carlton Communications Limited (Carlton). Lehman Brothers Holdings Inc (LBHI) acted as Credit Support Provider for both Transactions. The entry by LBHI and LBSF into Chapter 11 bankruptcy proceedings on 15 September 2008 and 3 October 2008, respectively, constituted two Events of Default under the relevant ISDA Master Agreement. The parties had not elected for AET. But for the operation of Section 2(a)(iii), one further payment would have been due from Carlton to LBSF on 2 March 2009. Carlton, relying on Section 2(a)(iii), did not make that payment.

Third appeal (Pioneer v Cosco)

This case involved eleven forward freight agreements (FFAs) entered into by Pioneer Freight Futures Company Limited (Pioneer) and Cosco Bulk Carrier Company Limited (Cosco) between January 2007 and August 2008. All were subject to the 2007 terms of the Forward Freight Agreement Brokers Association (FFABA 2007 Terms) which incorporated by reference the 1992 version of the ISDA Master Agreement. AET applies by default under the FFABA 2007 Terms. Under four of the FFAs Cosco was the seller; under the remaining seven Pioneer was the seller.

Following a failure by Pioneer to make a payment due in November 2008, Cosco relied on Section 2(a)(iii) to avoid making any subsequent payments that would otherwise have fallen due. On 14 December 2009, Pioneer passed a resolution for its winding-up. This was an Event of Default under the ISDA Master Agreement, to which AET applies, resulting in the occurrence of an Early Termination Date in respect of all outstanding Transactions. Pioneer contended that all eleven FFAs were subject to AET, whereas Cosco argued that eight FFAs were not subject to AET because in each case the last date for performance had passed prior to the Early Termination Date being designated.

Fourth appeal (Bulk v Britannia Bulk)

The final appeal again involved an FFA on FFABA 2007 Terms incorporating the 1992 version of the ISDA Master Agreement pursuant to which the parties, Bulk Trading SA (Bulk) and Britannia Bulk Plc (Britannia Bulk), had specified AET as being applicable and selected Loss as the payment measure.

Administrators were appointed over Britannia Bulk on 31 October 2008 which resulted in an Early Termination Date occurring on that date by virtue of AET. The dispute related to the basis on which the Loss calculation by Bulk was required to be made.

The Court of Appeal judgment

a) Did the obligation of the Non-defaulting Party ever come into existence?

b) Extinction or suspension?

c) Revival otherwise than by curing the Event of Default?

d) Extinction of payment obligation on maturity?

e) Are Transactions whose natural term has expired prior to the occurrence of AET subject to close-out netting?

f) Gross vs Net

g) Anti-deprivation principle and pari passu rule

As regards the anti-deprivation principle, the court referred extensively to the recent Supreme Court decision in Belmont Park Investments PTY Limited (Respondent) v BNY Corporate Trustee Services Limited and Lehman Brothers Special Financing Inc (Appellant) [2011] UKSC 38 which it described as the "authoritative statement" on the anti-deprivation principle. In Belmont, it had been held that a transaction will not fall foul of the anti-deprivation principle if it was entered into in good faith and was commercially sensible. In this case, the court thought it was difficult to see how Section 2(a)(iii) could be said to offend against the principle. It considered that the purpose of Section 2(a)(iii) is to protect the Non-defaulting Party from the additional credit risk involved in performing its own obligations whilst the Defaulting Party remains unable to pay its own. The indefinite suspension of the payment obligation of the Non-defaulting Party (like any attempt to balance competing interests) might be criticised as imperfect but it could not be said to be uncommercial.

The good faith test referred to above does not prevent a transaction being challenged pursuant to the pari passu principle. Therefore, if Section 2(a)(iii) was considered to breach the pari passu principle, it would be invalid whatever the motivation behind the section. However, the court held that Section 2(a)(iii) did not breach this rule. This was for two reasons:

i. the pari passu principle is only engaged in respect of assets of the insolvent estate as at the commencement of the liquidation. In this case, there was no debt payable to LBSF when its liquidation commenced because the obligation to pay was subject to the condition precedent that there be no continuing Event of Default. There was therefore no property which was capable of being distributed. This is very much a "flawed asset" analysis and so it would appear that the court was of the view that the inclusion of a condition precedent, such as the one that appears in Section 2(a)(iii), is sufficient to prevent the pari passu principle coming into play even though a flawed asset analysis is not enough, in itself, to prevent the anti-deprivation principle from applying (the provision must also be in good faith and commercially sensible); and

ii. Carlton was not a creditor of LBSF in respect of the payment that would have fallen due, but for Section 2(a)(iii). In most cases, the pari passu rule will be relied upon by the liquidator to defeat a creditor's reliance on a contractual arrangement which was intended to give him preference in relation to the distribution of the estate.

h) Basis for calculations under the Loss payment measure

Bulk argued that it had made no gain in respect of the Transaction since, had early termination not occurred, no payments would have accrued due to Britannia Bulk because Britannia Bulk would have been subject to an Event of Default for the remainder of the term of the agreement. Bulk relied on the omission of the words "assuming the satisfaction of each applicable condition precedent" from the first sentence of the definition of Loss in the ISDA Master Agreement which deals with the calculation of a party's forward-looking losses, costs or gains in connection with Terminated Transactions.

The court, consistent with the findings of Mr Justice Flaux at first instance and those of Mrs Justice Gloster in Pioneer v TMT, held that the ISDA Master Agreement requires a party calculating payments due on early termination in accordance with the Loss payment measure to assume satisfaction of each applicable condition precedent. It considered that Bulk's argument was founded upon a fallacy or impossibility: it assumed an Event of Default going forward for the remainder of the contract period, but that was not possible since the Event of Default itself led to AET. In addition, if Bulk's submission were right, a Non-defaulting Party would never have to pay anything in respect of loss of bargain going forward in these circumstances, which was inconsistent with the terms of the ISDA Master Agreement.

The court also cited with approval comments made by Mr Justice Briggs in Anthracite Rated Investments (Jersey) Limited v Lehman Brothers Finance SA (in liquidation) [2011] 2 Lloyd's Rep 538 in respect of the Loss and Market Quotation payment measures. These included the following: "Loss and Market Quotation are, although different formulae, aimed at achieving broadly the same result, so that the outcomes derived from one may be usefully tested by way of cross-check by reference to the other…. The termination payment formulae under Section 6(e) are not to be equated with, or interpreted rigidly in accordance with the quantification of damages at common law for breach of contract." These findings were also inconsistent with the interpretation put forward by Bulk.

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