The global derivatives industry launched an Irish law version of its dispute resolution mechanism for trillions of euros of swaps contracts on Tuesday to “future-proof” users against the uncertainties presented by Brexit.
The International Association of Swaps and Derivatives Association (ISDA) writes the “master agreement” used as a template for hundreds of thousands of swap contracts bought by companies to hedge against adverse moves in borrowing costs and currencies.
The current agreement allows users to refer disputes to courts in Japan, New York or England, but ISDA began fundamental changes to cope with a “hard” Brexit earlier this year and has added Irish and French courts to its list.
“Right now with the political situation with Brexit, it’s unpredictable as to what the final outcome will be. This is part of the preparations that are necessary,” ISDA Chief Executive Scott O’Malia told Reuters in a telephone interview.
“The Irish agreement makes sure that our members have legal certainty, complete access and quick access. Not to say English law won’t be respected in Europe, but the Irish law agreement might give an easier path in disputes if they arise.”
Nearly all market participants in Europe opt for English courts, but ISDA said earlier this year that it was unclear if this could continue for European Union counterparties after Britain leaves the bloc in just over a year’s time.
Sticking with English law could potentially mean more expense, more uncertainty and more red tape, it added.
O’Malia said he could not estimate at this point how much business ISDA expects will move to Ireland or France.
“Obviously ISDA is not in the business of going out and producing documentation unless there has been member demand for its availability,” said Judith Lawless, a partner at Irish law firm McCann FitzGerald, which worked with ISDA on the proposals.
“That’s not to say that we’re going to have swarms of ISDA members entering into Irish law versions overnight, but clearly there was a significant bank of ISDA members who were sufficiently concerned.”
Ireland, which operates a common law system like England, is among a handful of countries competing for firms moving operations as a result of Brexit and has already drawn banking, insurance and funds industry jobs way from London.
“This is a tremendous vote of confidence not just in Ireland but in Irish law and in the Irish courts system,” Irish junior minister for justice David Stanton said, adding that it could significantly boost potential new business for Irish firms.
