The Safe Harbors for Swaps and Repurchase Agreements in Bankruptcy Presented By: Evelyn H. Biery Fulbright & Jaworski L.L.P. 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 Telephone: 713.651.5544 Facsimile: 713.651.5246
[email protected] Prepared By: David L. Barrack Fulbright & Jaworski L.L.P. 666 Fifth Avenue New York, New York 10103 Telephone: 212.318.3302 Facsimile: 212.318.3400
[email protected] June 10, 2008 International Insolvency Institute Berlin, Germany A. Purpose ofthe Safe Harbors. The Bankruptcy Code contains certain "safe harbor" provisions which provide special treatment for certain types of financial and other contracts (i.e. swaps, repurchase agreements, forward contracts, securities contracts, and commodities contracts) that are designed to reduce systemic risk in the event that a counterparty becomes a debtor under the BanklUptcy Code. When enacting amendments to these "safe harbor" provisions in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, S.256, 109th Congo (2005) (the "2005 Amendments"), Congress described "systemic risk" as "the risk that the failure of a finn or disruption of a market or settlement system will cause widespread difficulties at other films, in other market segments or in the financial system as a whole. If participants in certain financial activities are unable to enforce their rights to tenninate financial contracts with an insolvent entity in a timely mauneI', or to offset or net their various contractual obligations, the resulting uncertainty and potential lack of liquidity could increase the risk ofan inter-market disruption.,,1 In December 2006, Congress enacted the Financial Netting Improvements Act of 2006, which further amended certain definitions and safe harbor provisions.