Bankruptcy

Indra Rajaratnam

12.1 INTRODUCTION

This chapter seeks to provide an insight into the requirements of Section 4.2 of the 2014 ISDA Credit Derivatives Definitions (henceforth the “2014 Definitions”; see International Swaps and Derivatives Association Inc. 2014b) that deal with bankruptcy. First, events that led to a bankruptcy as a result of the impact of the Covid-19 pandemic, and some of the permanent UK insolvency law changes that were introduced under the UK Corporate Insolvency and Governance Act in 2020 (UK Government 2020) are considered. The drafting differences between the 2014 Definitions and the relevant Master Agreement are also discussed. Then, each of the component limbs under Sections 4.2(a)–(h) of the 2014 Definitions are examined in sequential order and, with respect to Section 4.2(d) of the 2014 Definitions, the drafting distinction between the definition of “bankruptcy” under the Updated 2003 Definitions and that in the 2014 Definitions is highlighted. Finally, a “similar relief” analysis of several historic deliberations is undertaken to illustrate the characteristics of certain reliefs that have been persuasive in the DC’s determination relating to a bankruptcy under Section 4

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