Legal Risk Section 2070.1 An institution’s trading and capital-markets will prove unenforceable. Many trading activi- activities can lead to significant legal risks. ties, such as securities trading, commonly take Failure to correctly document transactions can place without a signed agreement, as each indi- result in legal disputes with counterparties over vidual transaction generally settles within a very the terms of the agreement. Even if adequately short time after the trade. The trade confirma- documented, agreements may prove to be unen- tions generally provide sufficient documentation forceable if the counterparty does not have the for these transactions, which settle in accor- authority to enter into the transaction or if the dance with market conventions. Other trading terms of the agreement are not in accordance activities involving longer-term, more complex with applicable law. Alternatively, the agree- transactions may necessitate more comprehen- ment may be challenged on the grounds that the sive and detailed documentation. Such documen- transaction is not suitable for the counterparty, tation ensures that the institution and its coun- given its level of financial sophistication, finan- terparty agree on the terms applicable to the cial condition, or investment objectives, or on transaction. In addition, documentation satisfies the grounds that the risks of the transaction were other legal requirements, such as the ‘‘statutes of not accurately and completely disclosed to the frauds’’ that may apply in many jurisdictions. investor. Statutes of frauds generally require signed, writ- As part of sound risk management, institu- ten agreements for certain classes of contracts, tions should take steps to guard themselves such as agreements with a duration of more than against legal risk. Active involvement of the one year (including both longer-term transac- institution’s legal counsel is an important ele- tions such as swaps and master or netting ment in ensuring that the institution has ade- agreements for transactions of any duration). quately considered and addressed legal risk. An Some states, such as New York, have provided institution’s policies and procedures should limited exceptions from their statutes of frauds include appropriate review by in-house or out- for certain financial contracts when other sup- side counsel as an integral part of the institu- porting evidence, such as confirmations or tape tion’s trading and capital-markets activities, recordings, is available. including new-product development, credit In the over-the-counter (OTC) derivatives approval, and documentation of transactions. markets, the prevailing practice has been for While some issues, such as the legality of a type institutions to enter into master agreements with of transaction, may be addressed on a jurisdiction- each counterparty. Master agreements are also wide basis, other issues, such as the enforceabil- becoming common for other types of transac- ity of multibranch netting agreements covering tions, such as repurchase agreements. Each mas- several jurisdictions, may require review of ter agreement identifies the type of products and individual contracts. specific legal entities or branches of the institu- An institution should have established proce- tion and counterparty that it will cover. Entering dures to ensure adequate legal review. For into a master agreement may help to clarify that example, review by legal counsel may be each subsequent transaction with the counter- required as part of the product-development or party will be made subject to uniform terms and credit-approval process. Legal review is also conditions. In addition, a master agreement that necessary for an institution to establish the types includes netting provisions may reduce the of agreements to be used in documenting trans- institution’s overall credit exposure to the actions, including any modifications to standard- counterparty. ized agreements that the institution considers appropriate. The institution should also ensure An institution should specify its documenta- that prior legal opinions are reviewed periodi- tion requirements for transactions and its proce- cally to determine if they are still valid. dures for ensuring that documentation is consis- tent with orally agreed-on terms. Transactions entered into orally, with documents to follow, DOCUMENTATION should be confirmed as soon as possible. Docu- mentation policies should address the terms that If the terms of a transaction are not adequately will be covered by confirmations for specific documented, there is a risk that the transaction types of transactions and what transactions are Trading and Capital-Markets Activities Manual September 2002 Page 1 2070.1 Legal Risk covered by a master agreement; policies should available or may be artificially maintained at specify when additional documentation beyond nonmarket rates by a government seeking to the confirmation is necessary. When master preserve its currency. agreements are used, policies should cover the Contracts also should be clear as to whether permissible types of master agreements. Appro- cross-default provisions allow or require the priate controls should be in place to ensure that close-out of other contracts between the parties. the confirmations and agreements used satisfy Finally, close-out provisions should be reviewed the institution’s policies. Additional issues re- to determine what conditions need to be met lated to the enforceability of the netting provi- before the contract can be finally closed out. sions of master agreements are discussed below Formalities in some contracts may delay the in ‘‘Enforceability Issues.’’ close-out period significantly, further injuring a nondefaulting counterparty. Trigger Events Netting Special attention should be given to the defini- tion of ‘‘trigger events,’’ which provide for To reduce settlement, credit, and liquidity risks, payment from one counterparty to another or institutions increasingly use netting agreements permit a counterparty to close out a transaction or master agreements that include netting pro- or series of transactions. In the ordinary course visions. ‘‘Netting’’ is the process of combining of events, contractual disputes can be resolved the payment or contractual obligations of two or by parties who wish to continue to enter into more parties into a single net payment or obli- transactions with one another, but these disputes gation. Institutions may have bilateral netting can become intractable if serious market disrup- agreements covering the daily settlement of tions occur. Indeed, the 1998 Russian market payments such as those related to check-clearing crisis raised calls for the establishment of an or foreign-exchange transactions. Bilateral mas- international dispute-resolution tribunal to handle ter agreements with netting provisions may the large volume of disputed transactions when cover OTC derivatives or other types of trans- the Russian government announced its debt actions, such as repurchase agreements. moratorium and restructuring. The Commodity Futures Trading Commis- sion (CFTC) has exempted a broad range of Trigger events need to be clearly and pre- OTC derivatives from the Commodity Exchange cisely defined. In the Russian crisis, the trigger Act, eliminating the risk that instruments meet- events in some master agreements did not include ing certain conditions would be found to be a rescheduling of or moratorium on the payment illegal off-exchange futures under U.S. law. The of sovereign debt. Even when sovereign debt is exemption nevertheless limits the use of multi- covered by the master agreement, it may be lateral netting and similar arrangements for appropriate to specify that not only debt directly reducing credit and settlement risk, and reserves issued by the sovereign, but also debt issued the CFTC’s enforcement authority with respect through governmental departments and agencies to fraud and market manipulation.1 or through other capital-raising vehicles, falls The CFTC’s exemption provides significant within the scope of the trigger event. Moreover, comfort with respect to the legality of most OTC when a trigger event has occurred, but the derivative instruments within the United States. contract expires before the expiration of a cure The risk that a transaction will be unenforceable period or before the completion of a debt because it is illegal may be higher in other restructuring, the nondefaulting party can lose jurisdictions, however. Jurisdictions outside the the protection of the contract absent clear pro- United States also may have licensing or other visions to the contrary. requirements that must be met before certain The occurrence of trigger events also may OTC derivatives or other trading activities can give rise to disputes regarding the appropriate be legally conducted. settlement rate at which to close out contracts. It maybedifficult to argue in favor of substitute settlement rates that were not referenced as a 1. See 17 CFR 35. Instruments covered by the CFTC’s pricing source in the original documentation. exemption are also excluded from the coverage of state However, original pricing sources may not be bucket-shop and gambling laws. September 2002 Trading and Capital-Markets Activities Manual Page 2 Legal Risk 2070.1 Master Agreements ments covering multiple derivative transactions. When a bank has undertaken a number of Master agreements generally provide for routine contracts with a particular counterparty that are transaction