International Instruments for Close-out Netting Laws Harmonization

Abstract

The subject matter of the article is the process of harmonizing close-out netting regulation and the mostimportant international standards in this area. Close-out netting is a contractual instrument for the terminationof obligations under a range of financial transactions that is widely used in international markets. Mandatorybankruptcy rules in many countries hinder close-out netting operation resulting in the need for adoptingnational laws aimed at the recognition and enforceability of close-out netting. Supported by internationalbodies in the field of financial markets regulation, international standards for the harmonization of close-outnetting legislation were adopted. The main objective of these instruments is the formation of model rulesand guidelines to be used by legislators and regulators in their activities. Model Netting Act, drafted andpublished by the International Swaps and Derivatives Association in 1996, became the first one in a rangeof such documents. Subsequently, the organization has published updated model netting laws in 2002and 2006. For eight years, these model acts were the only standards in that area and have been used for implementing netting laws in several key jurisdictions. Subsequently, renowned international organizationsin the field of unification of private law joined the harmonization process. UNCITRAL Legislative Guide onInsolvency 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 (financial contracts) and arefocused on the restriction of certain institutions of insolvency law, such as the prohibition of set-off shortlybefore and amidst the bankruptcy process, the right to challenge or reject the execution of transactions aswell as imposing a moratorium on the termination of obligations. However, the UNIDROIT Principles can beconsidered as the most 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 of financial marketsregulation and financial institutions resolution.