International Instruments for Close-out Netting Laws Harmonization

Abstract

The subject matter of the article is the process of harmonizing close-out nettingregulation and the most important international standards in this area. Close-out nettingis a contractual instrument for the termination of obligations under a range of financialtransactions that is widely used in international markets. Mandatory bankruptcy rulesin many countries hinder close-out netting operation resulting in the need for adoptingnational laws aimed at the recognition and enforceability of close-out netting. Supportedby international bodies in the field of financial markets regulation, international standardsfor the harmonization of close-out netting legislation were adopted. The main objectiveof these instruments is the formation of model rules and guidelines to be used bylegislators and regulators in their activities. Model Netting Act, drafted and published bythe International Swaps and Derivatives Association in 1996, became the first in a rangeof such documents. Subsequently, the organization has published updated model nettinglaws in 2002 and 2006. For eight years, these model acts were the only standards inthat area and have been used for implementing netting laws in several key jurisdictions.Subsequently, renowned international organizations in the field of unification of private lawjoined the harmonization process. UNCITRAL Legislative Guide on Insolvency Law (2004)and UNIDROIT Principles of Close-out Netting (2013) were adopted to put close-outnetting relations in order. All close-out netting instruments have similar scope (financialcontracts) and are focused on the restriction of certain institutions of insolvency law, suchas the prohibition of set-off shortly before and amidst the bankruptcy process, the right tochallenge or reject the execution of transactions as well as imposing a moratorium on thetermination of obligations. However, the UNIDROIT Principles can be considered as themost preferred tool for legislators and regulators since the document takes into accountthe interests of all the parties involved as well as the latest developments in the field offinancial markets regulation and financial institutions resolution.