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The Financial Stability Board has asked the International Swaps and Derivatives Association “To try to eliminate some of the challenges that are caused by the ISDA Master Agreement during an attempted resolution,” said Stephen O’Connor, ISDA chairman. “We are cooperating with them and we have representatives from the buy side and sell side working on the language, and also the way forward in an attempt to execute a protocol to implement that language. That’s something that’s very important to the global regulatory community and we are responding to get that done.”
At issue are the early termination rights of derivatives counterparties to banks, many of whose operating subsidiaries are counterparties to large volumes of OTC derivatives that provide for an event of default based on the insolvency of the parent holding company.
The Financial Stability Board will be reporting progress on this effort in the fall, Federal Reserve governor Daniel Tarullo told the Senate Banking Committee. US regulators are concerned that foreign subsidiaries and branches of banks may have contractual rights and substantial economic incentives to terminate those contracts as soon as the US parent bank enters resolution. This could render a resolution unworkable by resulting in the disorderly unwind of an otherwise viable foreign subsidiary and the disruption of critical intra-affiliate activities that rely on the failing subsidiary.
“The challenge would be compounded in a bankruptcy resolution, because derivatives and other qualifying financial contracts are exempt from the automatic stay under bankruptcy law, regardless of whether the contracts are governed by US or foreign law,” Tarullo said.