Power

The English court of first instance has provided important guidance on the close-out provisions under the 2002 ISDA Master Agreement. Particular findings of note which will be of interest to all users of the 2002 form where English law is selected are:

• The determining party must use objectively reasonable processes and must also reach an objectively reasonable result when making close-out calculations under the 2002 ISDA Master. This contrasts with the 1992 ISDA Master, where the English courts have found the more subjective standard of “rationality” applies.
• Although the 2002 ISDA Master permits the use of indicative quotations, it is not commercially reasonable for a determining party to rely on them when it proposes to enter into a replacement transaction shortly afterward.
• Once a party has submitted a calculation following termination, it is not open to that party to withdraw and replace it. However, the court may take into account revised calculations when determining what range of results a calculation in line with the ISDA Master would have arrived at.
• The judge was unwilling to accept mark-to-market valuations or modeled evaluations as evidence for the price at which a replacement transaction would have been available in the market where they differed from actual quotations obtained from leading dealers in the market at the relevant time.