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Review of Expert Determinations of the International Swaps and Derivatives Association by Domestic Courts

Published on May 2, 2012        Author: 

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A central policy concern since the onset of the Greek debt crisis in 2010 has been whether sovereign debt restructurings trigger credit default swaps (CDS). CDS are insurance-like financial products whereby a protection seller agrees to pay the protection buyer in case of a credit event on a reference entity (in this case Greece) in return for a premium over a defined period of time. The legal framework for CDS transactions is largely standardized. More than 90 percent of CDS transactions are based on the ISDA Master Agreement. As a mechanism for creditors to hedge against the default of a debtor, CDS are financial instruments to redistribute risk (or, according to their defenders, to shift risk onto those entities willing and capable of better bearing such risks). Over the last two decades, CDS on sovereign debtors became increasingly common.

Greece’s debt restructuring in February/March 2012 was the first to be implemented under the umbrella of a large number of CDS (more than 2.5 billion Euros in net terms).  During the implementation phase of the Greek restructuring in March 2012, several interested market participants raised the question whether the Greek restructuring triggered an obligation for the sellers of CDS on Greece to pay. The Determinations Committee (DC) of the International Swaps and Derivatives Association (ISDA) for Europe, Middle East and Africa, the body established by ISDA and given decision-making power under the ISDA documentation to rule on credit events,  found that a restructuring credit event was triggered on March  9 2012.  The parties to CDS have agreed by contract that a credit event occurs only if the competent DC has said so.

As the Greek restructuring in February/March 2012 demonstrated, the consequences of such expert determinations by DCs can be momentous in financial terms not only for the parties to CDS transactions themselves, but also for the broader public and for taxpayers. A case in point is the Austrian bank KA Finanz, the bad bank split off from Kommunalkredit, the comparatively small Austrian lender to municipalities previously owned by Dexia that the Austrian government nationalized at the height of the global financial crisis. KA Finanz had taken over about 500 million Euros of CDS on Greece from Kommunalkredit. As a result of the payouts following the March 9 decision, the Austrian government had to inject another 1 billion Euros into the bank in order to stave off its collapse.

DCs recruit their members from among financial institutions and investment managers, which will often have positions on either side of CDS transactions. In view of their composition and the considerable practical importance of their decisions, concern has arisen that DC members may be tempted to “vote their own book” – i.e. to reach credit determinations in part based on whether the firm is on the buying or selling side of CDS for a particular reference entity.  For instance, two members of the Steering Committee of the Institute of International Finance  which negotiated the restructuring of Greek debt on behalf of private creditors of Greece, are voting members of the DC for Europe (BNP Paribas and Deutsche Bank). They were net sellers of CDS protection on Greece, meaning that both institutions had to pay out to protection buyers when the credit event occured. Given these concerns about independence of DCs and the right to a fair trial in civil matters under Article 6 of the European Convention, it is an open question whether competent domestic courts could in effect review decisions and potentially overturn decisions of DCs. Read the rest of this entry…

 

Extraterritorial Civil Jurisdiction: Obstacles and Openings in Canada

Published on May 1, 2012        Author: 

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Bruce Broomhall is a Professor at the Department of Law of the University of Quebec at Montreal, teaching mainly international and Canadian criminal law. He thanks François Larocque, Mark Arnold and others for their input.

On 18 April 2012, the Supreme Court of Canada issued a trio of decisions promising to have an important impact on how Canadian law responds to attempts at civil recovery for international law violations occurring abroad, or partly abroad.

The cases are based on issues of classic private international law, not human rights or public international law. Club Resorts Ltd. v. Van Breda dealt jointly with two cases (of plaintiffs Van Breda and Charron) asking whether an Ontario court had and should exercise jurisdiction over civil claims arising from Cuban sun vacations in which severe personal injury (Van Breda), death (Charron) and related damages were claimed. The importance of Van Breda lies in the test that the Supreme Court lays out for determining the existence of jurisdiction in a case with trans-boundary elements. The accompanying Éditions Écosociété Inc. v. Banro and Breedan v. Black are actions in defamation that examine primarily (and Van Breda also examines) the issue whether jurisdiction, once recognized, should in fact be exercised, or whether it should instead be declined on grounds of forum non conveniens. This posting looks at the former question.

Van Breda presents an assessment of the ‘real and substantial connection’ required for the exercise of civil jurisdiction under the exclusive competence over “Property and Civil Rights” that Canada’s Constitution Act 1867 (at s.92(13)) accords to the Provinces and their courts. As the Court points out, this test has been the source of confusion to litigants and judges alike. It is both a principle of constitutional law used to prevent ‘jurisdictional overreach’ by any given province (a question left aside in Van Breda), as well as a principle of private international law, typically for purposes of international jurisdictional coordination (the focus of the decision) (paras. 22ff.). [One might add that it is also the concept set out in the seminal Libman case for determining the scope of territorial jurisdiction for criminal law purposes.] The Court’s aim in reformulating the Ontario Court of Appeal’s decision in the instant case was to encourage predictability in jurisdictional determinations based on the test and so to restrict case-by-case variability. The Court identifies four connecting factors that raise a rebuttable presumption that a court has jurisdiction over a given case: that the defendant is (1) domiciled or resident in or (2) carries on business in the forum province, or (3) the tort was committed or (4) a contract connected with the dispute was made there (para. 90). The Court allows (at para. 91ff.) for courts to develop additional connecting factors in accordance with strict criteria. Nonetheless, where no listed or new presumptive connecting factors are present, “a court should not assume jurisdiction on the basis of the combined effect of a number of non-presumptive connecting factors” (para. 93).

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