Global Private International Law
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Global Private International Law

Adjudication without Frontiers

Edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira and Diego P. Fernandez Arroyo

Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora.
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Chapter 13: Autonomising financial markets: Lehman Brothers v. BNY Corporate Trustee

Horatia Muir Watt

Abstract

When the bankruptcy of Lehman Brothers Holdings, Inc. (LBHI) produced shockwaves throughout the global financial market and calls for regulation of systemic risk, the role of private international law was hardly a central preoccupation with either financial institutions or the general public. It is well known that Lehman’s over-the-counter (OTC) derivatives portfolio (containing over 900,000 OTC derivatives transactions) was governed by the default provisions of the ISDA Master Agreement. On the terrain of private law, the question arose in the aftermath of the crisis as to whether the Master Agreement played any meaningful role in Lehman Brothers’ bankruptcy and its catastrophic outcome and more generally whether a modification of its terms could reduce the systemic risk associated with derivatives transactions. In respect of the transnational dimension of the Agreement, a more theoretical debate concerned the extent to which attempts to create global certainty by the financial industry through the use of standardised agreements could be seen as a present-day renewal of the lex mercatoria. Might privately created norms provide an alternative frame of reference for the governance of contracts concluded in global financial markets? In such a perspective, the interference of divergent local laws was seen to thwart the operation of uniform contractual terms. However, the presence of a conflict of laws in relation to the interpretation of the ISDA Master Agreement also suggests that private international law plays an essential role in constituting the rules of the game against the backdrop of which the Master Agreement is given legal effect.

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