Derivative financial instruments in international commercial turnover

Above conclusion may come as a surprise taking into account that this particular conflict of laws is not just an academic problem but may have far-reaching practical consequences. Firstly, there might be a risk that lexforiconcursusdoes not provide for enforcement of close-out netting in the insolvency proceedings at all. Secondly, even if the law of the forum provides for enforcement of close-out netting, it might apply different mechanism for protection of close-out netting in the insolvency as compared to rules of the forum. Moreover, differences between two legal regimes may occur with regards to questions such as: which types of contracts are eligible for close-out netting; who is allowed to use this mechanism; to what extent netting in insolvency is compatible with the paripassu principle; as well as, what constitutes an unjustified preference to the detriment of other creditors.

The question of conflict between lexforiconcursusandlexcontractusshall be typically resolved on the basis of private international law rules embedded in the national legislation of the country given. From this perspective, EU law with its harmonization element encompassing all EU Member States is worth analysis as it struggles to provide some supranational solutions in order to create legal certainty and avoid inconsistency. Currently, there is a handful of different EU regimes that are relevant for the regulation of the close-out netting. These include, Financial Collateral Directive, the Credit Institutions Insolvency Directive, as well as the relevant parts of the Insolvency Regulation and Solvency II Directive that all together still produce relatively bewildering overall picture.

The Financial Collateral Directive is one of the key pieces of EU legislation directly stipulating and protecting close-out netting under financial collateral arrangements. In Accordance with Art.7 of FCD, Member States shall ensure that a close-out netting provision takes effect notwithstanding the commencement or continuation of winding-up proceedings. Therefore, this provision protects the enforceability of close-out netting under national insolvency law of EU Member States, and prevents them from imposing restrictions on the enforceability of such provisions under their insolvency laws. Nevertheless, level of protection of close-out netting provided by FCD is limited due to material and personal scope of application of this act. Close-out netting provisions are protected only with regards to financial collateral arrangements and the provision of financial collateral. Moreover, FCD applies between only between financial institution subject to prudential supervision; public authorities; central banks, the European Central Bank, the Bank for International Settlements, a multilateral development banks, the International Monetary Fund and the European Investment Bank; central counterparties, settlement agents or clearing houses and person, other than a natural person, who acts in a trust or representative capacity; and, provided that implementing State did not opt out, other types of market participant transacting with a counterparty belonging to one of the aforementioned categories. Thus, most, but not all, financial transactions are subject to FCD. This is because the condition for coming within the scope of FCD consists of collateral or security being provided between the parties, which is a very common characteristic in wholesale transactions. However, EU Member States still possess relatively significant autonomy in deciding on enforceability of close-out netting. FCD is different from the rules contained in the other EU acts described below in the sense that these acts generally contain conflict of laws rules.

Aim of the Credit Institutions Insolvency Directive was to harmonize insolvency regime of EU credit institutions. In principle, it takes a universal approach to credit institutions' insolvencies in that a credit institution is wound up in accordance with the laws, regulations and procedures applicable in its home Member State unless CIID provides otherwise. One of such exceptions is Art. 25 of CIID, which provides that: “netting agreements shall be governed solely by the law of the contract which governs such agreements”. Therefore, CIID establishes the primacy of lexcontractusconcerning netting arrangements of credit institutions, even if insolvency was commenced.

The Insolvency Regulation applies to insolvency proceedings other than insurance undertakings, credit institutions, investment firms and other firms, institutions and undertakings to the extent that they are not covered by CIID, and collective investment undertakings. The Insolvency Regulation provides rules for identifying the insolvency forum - courts of territory of the Member State where the center of the debtor's main interests is situated have jurisdiction to open main insolvency proceedings. Regulation also provides for the general rule that law applicable to the insolvency proceedings is that country's law. However, under Insolvency Regulation there is no specific rule on close-out netting. In absence thereof, the issue of enforceability of close-out netting remains to be governed by the general rules i.e. lexforiconcursus. Solvency II Directive, which governs EU insurance and reinsurance undertakings, takes similar approach providing no specific regulation on close-out netting in case of insolvency of above-mentioned undertakings, thus leaving this questions to be stipulated by lexforiconcursus.

To conclude, in the complex landscape of insolvency regulation there is only one situation in which the governing will with no doubts provide for the enforceability of close-out netting i.e. where both parties are credit institutions and the relevant transactions are collateralised. In this scenario, both FCD and CIID apply cumulatively. CIID determines that the law applicable to the contract will also apply to the questions of enforceability in insolvency proceedings. If the parties have chosen law of the EU Member State to govern the contract, they have a guarantee of enforceability of close-out netting arrangements included in that contract. This is because FCD has been implemented across all EU jurisdictions.

Considering insolvency of a market participant, who is not covered by the CIID, the Insolvency Regulation stipulates that the enforceability of close-out netting is governed by the lexforiconcursus. Keeping this in mind,itis important to emphasize that there are still considerable differences in the implementation of the FCD in the Member States and the substantive law in general. The extent to which these differences impinge on legal certainty still needs to be defined.

In case of close-out netting under Russian law, private international law offers no specific conflict of law regulation applicable to this institution. However, in case of cross-border close-out netting being applied against Russian counterparty who is subject to insolvency proceedings (e.g. Russian bank under insolvency who entered transactions under ISDA MA with foreign counterparty) Art. 4.1 of the Law on Insolvency applies. This provision envisages special rules on the determination of the amount of liabilities arising from financial contracts and in fact provides for enforceability of close-out netting in insolvency, however, subject to several requirements. In general Art. 4.1 allows for close-out netting in case of OTCtransactions as referred to in the Art. 51.5 of the Law on Securities Market (these include derivative and repurchase transactions) and (or) contracts concluded on the terms of the rules of organized trading and (or) clearing rules (altogether referred to as “financial transactions”), provided that these financial transactions are:

· concluded between eligible parties;

· concluded under eligible master agreement;

· execution of the master agreement has been registered with Russian repository in accordance with Art. 15.8 of the Law on Securities Market.

Moreover, for the close-out netting under master agreement to be enforceable financial transactions must be entered into prior to the revocation of the banking license, the commencement of insolvency proceedings or the introduction of temporary administration.

Rules on eligible parties and their list is set out in the Art. 4.1 item 3 point 1) of the Law on Insolvency, which as a general rule, stipulates that at least one of the parties to the financial transaction shall be: Russian credit organization or professional participant in the securities market; Bank of Russia; a foreign legal entity having the right, to carry out banking activities or professional activities in the securities market, with a place of establishment in the particular states; the central bank of a foreign country; international financial institution; other Russian legal entity.

For the master agreement to be deemed eligible, it must be developed by industry representative organization included in the list approved by the Central Bank of Russian. Based on the FFMS Order No. 11-62/pz-n dated 29 November 2011, which is still in force, only agreements developed by ICMA and ISDA are considered eligible. Thus, as of today only ISDA Master Agreement and ICMA's Global Master Repurchase Agreement are considered eligible under Russian law. Lastly, for the close-out netting to be enforceable a record on the conclusion of the master agreement shall be entered in the register of agreements maintained by the Russian trade repository. The goal of the above-mentioned reporting requirement is to prevent bankruptcy-related fraud, mostly in the form of concluding backdated contracts, thus allowing the operation of close-out netting only in case of financial transaction under master agreement, which has been preliminary disclosed by the parties. Nevertheless, this provision is often subject to criticism in the professional literature. It is pointed out, that the dependence of financial transaction's feasibility on the time such transaction is reported to relevant authority significantly impedes enforceability of close-out netting under the Russian law. Moreover, comprehensive analysis of ISDA opinions on the close-out netting indicates that in the developed jurisdictions reporting for regulatory purposes is not regarded as a mandatory condition for close-out netting to be enforceable.

To conclude, despite the lack of special conflicts of law rules applicable to netting and insolvency in general, Russian law may be regarded as providing for enforceability of close-out netting. Nevertheless, for the close-out netting to be enforcable, several requirements must be fulfilled. Those requirements significantly limit scope of protection of close-out netting narrowing it to eligible parties and, as of today, only two master agreements developed by industry representative organization i.e. ISDA MA and ICMA's Global Master Repurchase Agreement. Moreover, for the foreign counterparty additional reporting requirement may be considered rather unusual and anachronistic.

Conclusions

Every state encounters similar problems while attempting to define derivative financial instruments. Eventually, derivatives take the same forms of options, forwards (futures) or swaps and serve the same functions, regardless of the jurisdiction. Definition has to accommodate wide range of complex mathematical structures used by participants to financial markets and at the same time, it has to apply only to contracts, which are truly derivative in their nature. Thus, there is a need to draw a thin line between derivatives on the one hand, and regular commercial contracts and prohibited gambling on the other. The aim of defining derivatives is to delineate the scope of application of the rules to the market, which already proved to be able to cause a global crisis, if left under regulated. It appears that EU legislator managed to achieve above objectives by focusing on the settlement criterion, referring to abstract category such as “purpose of the contract” and providing for umbrella definition and examples referring to economical jargon. Although complex, EU's definition reflects the unambiguous nature of derivative financial instruments and may be an example to follow or at least inspiration for amendments.

No matter definitional differences, trading financial derivatives in the international turnover is extremely standardized from legal point of view. Lion's share of cross-border over-the-counter transactions are concluded based on the ISDA standard documentation governed by English law or New York law, whereas exchange--traded derivatives follow the same regulatory patterns reflected in respective trading rules of the stock exchanges and clearing rules of clearinghouses. In this situation, the same contractual issues arise irrespective of the location of the counterparties. For instance, counterparty from Russia should be aware that multimillion swaps contract is deemed concluded and binding under English law ISDA Master Agreement from the moment parties orally agree on terms the of such contract and no documentary form is necessary.

One of the key rules governing standard derivative documentation is the “single agreement” principle stipulating that all transactions entered into between the same parties under one master agreement form single agreement. This principle creates a link between otherwise unconnected transactions providing for mutuality of obligations. In case of insolvency, it deprives the insolvency administrator of right to reject unprofitable over-the-counter derivative contracts while preserving profitable ones. Thus, it is of paramount importance in minimizing credit risk. Interestingly, in some countries with developed financial markets such as the United Kingdom, there are sometimes raised concerns related to the enforceability of the “single agreement” principle, whereas Russian regulatory approach is clear on this matter and Art. 4.1 of Law on Insolvency de facto provides for enforceability of the “single agreement” concept, at least with respect to ISDA Master Agreement and ICMA's Global Master Repurchase Agreement, should some mandatory requirements are met.

Although English law or New York law typically govern over-the-counter contracts based on the choice of the parties expressed in the Schedule or Confirmation and with respect to exchange-traded derivatives governing law clause is typically included in the trading rules, private international law plays an important role. In particular, it may not be always the case that parties to the transaction actually have valid Master Agreement and Schedule in place. In fact, this situation is far from unseen on the financial markets, where decisions are taken instantly and negotiations of legal documents may take months.

In the context of the above, it is worth noticing that from global perspective rules of private international law relevant for financial derivatives follow the same pattern and therefore typically will lead to the same governing law. This is caused by the fact that so far, no special conflict of laws rule applicable to derivative contracts emerged and thus they are treated as any other contracts. At the same time, conflict of laws rules applicable to contracts are generally universal. By way of example, both EU Regulation Rome I and Section 6 of Russian Civil Code generally allow for the explicit choice of the parties in case of contractual relationship. With respect to ETDs, should the parties fail to choose applicable law, Rome I stipulates that the law of the state whose authorities supervise a given stock exchange shall apply, while Russian law points on law of the location of the stock exchange. However, in most instances, it is authorities of the country where the stock exchange is located that supervise that exchange. In the absence of the choice of the parties, EU and Russian law determine the law applicable to OTC contract with the use of collision norms structured on the criteria of “characteristic performance” and location of the party effecting it. Should application of the conflict of laws rule related to characteristic performance not be possible, ultimately lexconnectionisfermitatis determines the applicable law. Factors, which may influence the closest connection are not limited neither under Russian, nor under EU law. Therefore, with respect to derivative contracts, circumstances such as jurisdictions of the organization of the counterparties and branches engaged in the transaction, the stock exchange on which the underlying asset is traded, the location of the traders who created the contract, the currency in which the agreement is contracted or the jurisdiction of the underlying reference entity may be relevant.

When considering private international law andclose-out netting, the following conclusions shall be made. Despite the criticism of some representatives of the doctrine, protection of enforcement of close-out netting is necessary for developed financial markets. Jurisdictions, which do not set forth netting-friendly laws, will most probably impede their own growth and role on the global financial markets. This motivation may be considered one of the key factors for successful international harmonization of law aiming to enforce close-out netting.

EU law on close-out netting is far from perfect and creates rather bewildering overall picture. Nevertheless, in the maze of different laws there are some points worth noticing for the Russian legislator. Firstly, adoption of special conflict of laws rules that apply in case of insolvency should be considered, particularly in the context of close-out netting. EU still requires comprehensive, not a fragmentary, regulation of close-out netting, nevertheless, it dealt with the most basic problems such as law applicable to insolvency, thus also to close-out netting. Without basic set of rules of private international law in insolvency, Russian Federation most probably will not be considered reliable jurisdiction for participants to financial markets. Secondly, Credit Institutions Insolvency Directive serves as a good example that at least in certain cases concerning insolvencies of credit institutions, special collision norm particularly on close-out netting is desired and may by successfully adopted. Preference of lexcontractususually chosen by the parties over lexforiconcursus, which may not always point on the law providing for protection and enforceability of close-out netting, increases stability of the financial markets and unambiguity of legal relationship of parties to financial transactions. It also allows overcoming the problem of different mechanisms providing for enforcement and protection of close-out netting under national legislation of various jurisdictions. Parties will have opportunity to choose only law that provides for enforceability of close-out netting and in the manner that is known to them and. Moreover, parties will have guarantee that law of choice applies also in case of insolvency.

Finally, despite the lack of conflict of laws norms applicable in insolvency, Russian Federation managed to adopt laws that to some degree allow for enforceability of close-out netting. Enforcement of close-out netting in insolvency is, however, subject to several restrictions. Under Law on Insolvency, close-out netting applies only to certain financial transactions and between eligible parties. These two requirements shall not come as a surprise. EU law in certain cases also introduces similar limitations.

However, as of today Russian law protects close-out netting arrangement only under ISDA Master Agreement and ICMA's Global Master Repurchase Agreement.

Moreover, for the close-out netting to apply, reporting requirement to the Russian trade repository needs to be satisfied, which is against modern international trend and practice of the developed jurisdictions. Removal of the reporting requirement may increase attractiveness of the legal environment of Russia in the eyes of the participants to the international financial market.

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