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knowledge 28 June 2018 |

Irish law ISDA Master Agreement Available Now

The International Swaps and Derivatives Association, Inc. (“ISDA”) has today published Irish and French law versions of its 2002 ISDA Master Agreement, which are available on its website (here).  It has also commissioned updated Irish and French netting opinions encompassing those new versions, which have been made available to ISDA members in its Opinions Library (see here).  This initiative forms part of ISDA’s strategy to provide users of its documentation with the tools they need to future-proof contractual arrangements against the uncertainties presented by Brexit.

McCann FitzGerald was delighted to work closely with ISDA on the Irish law aspects of this project and to provide the updated Irish netting opinion, which encompasses both the new French and Irish law versions of the Master Agreement.  It is anticipated that other jurisdictions’ netting opinions will be extended to encompass these new versions as they are updated. 

The Irish ISDA Master Agreement

Post-Brexit, the availability of the Irish law ISDA Master Agreement will enable parties to continue to transact derivatives under the laws of an EU member state that is a common law jurisdiction and to benefit from the automatic recognition and enforcement of judgments referred to above.  Further, the:

  • very limited differences between the English and Irish law governed versions of the 2002 Master Agreement;
  • similarity of the contract law and legal systems of England and Ireland;
  • regard had by the Irish courts, in the absence of a binding Irish precedent, to decisions of the English courts on analogous matters,

will reassure users familiar with the English law governed Master Agreement that market expectations as to how the ISDA Master Agreement works should be respected.

Comment                          

The availability of an Irish law version of the ISDA Master Agreement is a very welcome development both for users of that Master Agreement and for Ireland.  It will facilitate users that have a preference for contracts governed by the laws of Ireland, or of an EU Member State more generally, whether that derives from Brexit-related concerns (eg Article 55 of BRRD, Article 46(6) of MiFIR or the availability of the EU’s highly flexible regime for the recognition and enforcement of judgments referred to above) or other reasons.  We also anticipate that ISDA’s initiative will stimulate an increased acceptance by the international finance and business community of Irish law as a governing law of choice for cross-border transactions.

Whereas ISDA’s initial focus has been on its 2002 Master Agreement, a suite of Irish law governed credit support documents has also been drafted and made available to ISDA members for comment. 

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.