In late June 2018, the International Swaps and Derivatives Associations, Inc. ("ISDA") published a version of the ISDA 2002 Master Agreement governed by Irish law as part of its response to Brexit; see our previous update here. To complete the document set, ISDA has now published the following Irish law governed credit support documents:
- 1995 ISDA Credit Support Annex (Title Transfer – Irish law)
- 2016 ISDA Credit Support Annex for Variation Margin (VM) (Title Transfer – Irish law)
Copies of the Irish law governed 2002 Master Agreement and the credit support documents are available from ISDA's online bookstore.
Matheson worked closely with ISDA in drafting the Irish law governed ISDA documents, which are substantively identical to the equivalent English law versions. The only differences between the Irish law credit support documents and their English law equivalents are:
- changes to the header and footer to identify the document as governed by Irish law and for use with ISDA 2002 Master Agreements (Irish law);
- as the 1995 Credit Support Annex (Title Transfer – Irish law) is intended for use only with the ISDA 2002 Master Agreement (Irish law), incorporation of the amendments to the 1995 Credit Support Annex provided for by the ISDA 2002 Master Agreement Protocol; and
- as the 2016 VM CSA (Title Transfer – Irish law) is intended for use only with the ISDA 2002 Master Agreement (Irish law), omission of provisions in the English law version specific to the 1992 ISDA Master Agreement and updating a reference to the EMIR RTS.
The publication of the Irish law governed credit support documents is a welcome step in ISDA's project to make available Irish law and French law governed documents for use by counterparties concerned with the implications of Brexit on English law governed documents and/or the choice of English courts to resolve disputes. Together with the publication of the Irish law Master Agreement and ongoing work to update ISDA's netting and collateral opinions to cover Irish law ISDA documents, the market infrastructure to facilitate greater use of Irish law is nearing completion.
Matheson's Derivatives, Netting and Collateral team recently advised on a cross-border financing transaction where an ISDA 2002 Master Agreement (Irish Law) was used. We expect to see Irish law governed ISDA documents used much more frequently in 2019.
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