Post by Sapphire Capital on Nov 12, 2012 5:42:18 GMT 4
CDS Zombies
Anna Gelpern
American University Washington College of Law
G. Mitu Gulati
Duke University - School of Law
August 29, 2012
European Business Organization Law Review 13, Forthcoming
American University, WCL Research Paper No. 2012-37
Abstract:
This paper examines the contract interpretation strategies adopted by the International Swaps and Derivatives Association (ISDA) for its credit derivatives contracts in the Greek sovereign debt crisis. We argue that the economic function of sovereign credit default swaps (CDS) after Greece is limited and uncertain, partly thanks to ISDA’s insistence on textualist interpretation. Contract theory explanations for textualist preferences emphasise either transactional efficiency or relational factors, which do not fit ISDA or the derivatives market. We pose an alternative explanation: the embrace of textualism in this case may be a means for ISDA to reconcile the competing political demands from state regulators and its market constituents. We describe categories of contracts susceptible to such political demands, and consider when and why textualism might be the preferred response.
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