Free Sample Issue • Subscribe Now! November 2004 VOLUME 24 NO. 8 E In This Issue scape From the Island of Escape From the Island of the One-Way Termination: Expectations and Enron v. TXU the One-Way Termination: by Jeremy D. Weinstein, Bruce MacIntyre, and Expectations and Enron v. TXU William F . Henze II ................................................1 The Australian decision in Enron Australia v. TXU By Jeremy D. Weinstein, Bruce MacIntyre, and Electricity has sparked significant recent interest and William F. Henze II debate as to the certainty of Second Method election under the ISDA Master Agreement and an insolvent The New South Wales Supreme Court case of Enron party’s efforts to force an Early Termination Date. How Australia v TXU Electricity [2003] NSWSC 1169 ( TXU ) would such a controversy play out in U.S. Bankruptcy has sparked significant recent interest and debate. Did the Court? Supreme Court of a common law jurisdiction, by refusing to require a Non-defaulting Party under a two-way termina- From the Editors tion (or Second Method) ISDA to make any further pay- By Michael S. Sackheim and Richard A. Miller......2 ments due to the bankruptcy of the Defaulting Party, effectively turn the ISDA into a limited two-way termina- Australia’s New Financial Services Licensing tion (or First Method or “walk-away”) contract? Or did the Regime Court simply enforce the ISDA in exactly the manner in which its drafters intended all along? Does this decision by Edward Kerr & Alexander Morris ....................9 place the capital adequacy of some banks at risk? Or is the Recent developments in Australian financial services case’s outcome just a result of unusual counterparty regulation will affect entities outside Australia. Foreign conduct? And would a court reach the same result with a entities that enter into derivative or foreign exchange bankrupt party in the U.S.? transactions with Australian counterparties may be (continued on page 3) required to obtain an Australian financial services license, and breaches of this licensing regime can give rise to criminal sanctions. Jeremy D. Weinstein is Senior Counsel to PacifiCorp and PPM Energy, Inc. Bruce MacIntyre is a Partner with Perkins Coie, Hedge Fund Update: SEC Adopts Hedge Fund Seattle, Washington. William F. Henze II is a Partner with Jones Adviser Registration Proposal Day, New York, New York. The authors wish to thank Dede Russo, Kimberly Summe, Eric Freedman, David T. Musselman, Glenn By Milton K. Buckingham....................................12 Arden, Christian Yoder, Seth Grosshandler, and Lauren Teigland- The SEC commissioners have voted to approve a Hunt for their ideas, contributions, and encouragement. The opinions expressed by the authors are their own, and are not proposed rule that will require most hedge fund necessarily those of the organizations with which they are affiliated. managers to register as investment advisers under the Any opinion herein at variance to a position an author later takes in Investment Advisers Act of 1940. The author provides negotiation or litigation is that of a co-author. The authors may be contacted at jeremy.weinstein@pacificorp.com, BMacIntyre@ an overview of the major features of the final rule. perkinscoie.com, and wfhenze@JonesDay.com respectively.
. . . Enron v. TXU taken by TXU, there will continue to be no payment obligations in respect of any outstanding Transactions.” (continued from page 1) ( TXU 18-20) How the Court Read the ISDA The Order Sought by the Liquidators Enron Australia went into voluntary administration on December 3, 2001, and then into liquidation on January 29, Enron’s liquidators 5 sought an order requiring that 2002. At the time, it had 78 open electricity swaps under a TXU determine an amount payable in respect of an Early 1992 ISDA Master Agreement (“ISDA”) with TXU Elec- Termination Date, as though TXU had designated an Early tricity Ltd., some with terms to the end of 2005, with an Termination Date as the Non-defaulting Party. The Court’s alleged mark-to-market value to Enron of A$3.3 million. decision was relatively narrow and based on provisions of Enron’s administration and liquidation were Events of the Australian Corporations Act that are somewhat similar Default under §§5(a)(vii)(6) and (5), respectively, of the in purpose (if not in scope or application) to §365 of the ISDA. U.S. Bankruptcy Code (the “Bankruptcy Code,” or the As the Non-defaulting Party, TXU had the option to “Code”). 6 Under §365, a U.S. debtor has substantial designate an Early Termination Date under ISDA §6(a). discretion and the benefit of the “business judgment rule” Enron and TXU had elected to have the Termination in deciding which executory contacts to keep and which to Payment calculated using Second Method, under which the reject. An Australian debtor, however, “cannot disclaim a Non-defaulting Party calculates the Settlement Amount, contract (other than an unprofitable contract or a lease of and whichever party is out-of-the-money, whether or not it land) except with leave of the court.” 7 Then, assuming the is the Defaulting Party, pays that value to the other. 1 In Australian Court allows the debtor to disclaim (reject) such contrast, under a First Method election, the Non-defaulting a contract, the Court may also “make such orders in Party need not pay any money to the Defaulting Party, even connection with matters arising under, or relating to, the if the Non-defaulting Party is out-of-the-money to the contract as the court considers just and equitable.” Since the Defaulting Party. Since TXU’s position was out-of-the- swap agreements were profitable 8 contracts for Enron, it money, termination would have required it to pay Enron the needed two things from the Court. First, it needed approval net mark-to-market value of the 78 positions. 2 So instead of to disclaim them under §568, and second, it needed an declaring an Early Termination Date, TXU simply sus- additional order imposing their early termination and pended payments under §2(a)(iii) of the ISDA. 3 Enron settlement, in which case TXU would immediately owe sought to force an Early Termination and settlement of the Enron the settlement amount. swaps, but the Court refused to do so. The Enron/TXU ISDA Schedule provided for an The Court noted that §2(a)(iii) conditions each party’s Additional Termination Event: a party having satisfied all payment obligations 4 under each swap on the non-existence payment and delivery conditions under §2(a)(i) and having of any Event of Default with respect to the other party, and no future payment or delivery obligations could declare an on the non-occurrence of an Early Termination Date. “[I]f Additional Termination Event if the other party refused to either condition has not been met at any given time, there is make a payment based on §2(a)(iii). 9 The liquidators’ no payment obligation under any of the trades ... . [A] position was that with this provision, upon the expiration of payment obligation will spring up ... once the relevant the last outstanding Transaction, Enron would be entitled, condition is satisfied, and in that sense it might be said under ISDA §§6(b) and (e), to declare an Early Termination (with only approximate accuracy) that the payment obliga- Date anyway, even though it would still be in default under tion is ‘suspended’ while the condition remains unfulfilled, §5(a)(vii). 10 Since it was “in-the-money” with respect to the and that amounts ‘accrue’ notwithstanding that the condi- swap agreements, Enron argued that they were assets of the tion is unfulfilled.” ( TXU 12) Enron’s becoming subject to estate and that it was in the best interest of the estate to the appointment of an administrator (§5(a)(vii)(6)) or being realize on those assets now, rather than waiting until the placed into liquidation (§5(a)(vii)(5)) ( TXU 13-14), were expiration of the last trade. However, if the swap agree- Events of Default “with the result that the payment obliga- ments were disclaimed without further orders, Enron was tions have continued to be ‘suspended’.” ( TXU 14) concerned (with good reason) that it would forfeit its right “[T]hese clauses gave TXU, but not Enron, the contrac- to recover the net settlement value. Accordingly, it asked the tual right to designate an Early Termination Date in respect Australian Court to enter an order that would, in effect, of all outstanding Transactions, and then to settle by make Enron’s disclaimer an event triggering final settle- making or receiving a payment calculated under Section ment of all open trades, pursuant to the terms of the swap 6(e)(i)(3), thereby terminating those Transactions. ... While agreements and on the same basis as if TXU had designated the [ISDA] authorises TXU as the Non-defaulting Party to an Early Termination Date. The only issue decided by the initiate the early termination procedure, it does not oblige Court was whether it had the power to enter such an order. 11 TXU to do so ... . [I]n the absence of any such step being November 2004/ Volume 24, Number 8 3
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