Unlock Legal Compliance with eSignature Legality for Terms of Use Agreement in European Union

How to eSign a document: e-signature lawfulness for Terms of Use Agreement in European Union

foreign [Music] has been introduced what are some of the reasons parties have opted to trade under a French or an Irish law Master agreement Judith I'll ask you to answer that first sure well in our experience generally speaking these reasons have fallen into three main categories firstly EU regulation parties that have undertaken contractual remediation exercises with respect to agreements governed by Third Country laws for bored purposes are opting for the Irish or French versions to limit the likelihood of having to undertake such further exercises effectively hedging against change floor risk if you would also in the context of a more General post-brexit uptick that we're seeing in the use of Irish law to govern International Financial Arrangements more generally unrelated to the jurisdiction of any particular party the Irish law is to fits very nicely into that enabling parties to use Irish law and for all related Finance documents including asdas and I'm sure that's an experience with French law as well having said that the primary reason that we are seeing for opting for Irish or French law is this and is the availability of the Brussels recast regulation regime for the automatic recognition and enforcement throughout the EU of choice of EU Court agreements and judgments of the EU courts this is perceived as highly beneficial as compared to any alternative regime and I really can't over emphasize its importance to a party whose counterparty is either operating out of or has assets against which the party may want to enforce located in an EU member state thanks Judith uh Alban anything to add I mean very similar coming from a French little contact prospective um uh it has been said and I believe Julie said it all very well but it cannot be over emphasized that the judicial passport is the first and principal reason uh even if one is convinced of the superiority of English law in terms of flexibility and predictability the difficulties that past the market participants will encounter in enforcing an English Court decision on the territory of the European Union will increase and I do not believe that the ratification currently under a consultation by the United Kingdom of the Hague convention is likely to resolve any of these difficulties there's a world of difference between the harmonization of the condition of execution on the one hand in the automatic immediate and Costless enforcement provided by the European judicial cooperation system on the the other hand I won't add anything more to what's been said already it's it's the the first and and I think determining reason why he's down make the move um so albon what kinds of legal protections and benefits are available to contracts such as the SAE law documents well as far as I reach low is concerned I mean Irish law is uh as is well known very similar to to English law and from this point of view I think that the benefits and protection enjoyed by Q end user of English law contracts are largely intact and preserved in their Irish law so the question is therefore I think mostly relevant for the French law contract which obviously represents a more considerable jump if you want for Market participants so therefore if you were allow me concentrate more on on these contracts and I will first say that it's the first and only to date civil law contract published by is there now 24 of the EU member states are civil laws jurisdiction civil law is a rate and low uh easily accessible and inexpensive to access because it does not require complex analysis of case law I also believe that French law specifically offers very strong advantages for Market participants wishing to deal with civil law first it is a contractual law with two pillars that are contractual freedom and contactable security I want to emphasize on one thing is that French Quarter particularly respectful of the legal characterization given by parties to their contract there's um and this is not neutral obviously when one knows that in many European jurisdiction the benefits of the surf Harbor in Bank in bankruptcy is reserved only to derivative product we've seen recently example of called decisions in trends that have barred the claims of insolvently trustee who sought to re-reactorize prepaid forward Equity swept transaction as financing on the soul gown that their economic effect was equivalent to a financing in the courts enforce the Safe Harbor and refuse to recaractivize the derivative that had been structured in this way perfectly legally and knowingly by the parties I would also say that French counterclow has been recently modernized and it can it continues to adapt itself to be the best possible recipe for the Easter contract also consumer low is not applicable in business relationship under French law and remains confined to private individuals the systems of proof is also very flexible and allows for example the full enforceability of isda protocols as a way to validly amend an existing agreement and finally it's a jurisdiction where is no example of the closeout netting being challenged by your court including in bankruptcy foreign so Judith in addition to some of the contractual protections and benefits how our court judgments related to sde law documents recognized and enforced would this would of course depend on the court from which the Judgment originates and where it needs to be recognized and enforced and it's worth mentioning in that context that both the Irish and the French history provides an option of exclusive and non-exclusive jurisdiction for the courts of that jurisdiction reflecting the modern approach taken to the English and New York law versions of isda's 2018 choice of court and governing law guide however as mentioned earlier the Brussels recast regime under that regime an in-scope judgment for an Irish or French court is automatically recognized and enforced in every other EU member State as if it was a judgment of the Courts of that other EU member State this is absolutely crucial and no other regime whether the Lugano convention the 2005 Hague convention the 2019 Hague convention or the domestic laws of any jurisdiction of which I am aware affords that automatic recognition and enforcement so that is really a key Advantage here thank you that's very helpful um so just turning quickly to the terms of the contracts themselves so for parties that are familiar with the English lies it documents what would you uh point out to them as being a substantive differences Alban do you want to take that one first yeah I think obviously the French Law contact is the one that has most uh changes uh from the English one but those changes were kept to a minimum um the idea was not to make another contract despite the change to civil law but a civil low version of the 2002 contract um in the end we are talking about five minor opportunities none of which affect Section 5 and 6 of the contract I.E the core provision of the closeout netting and its mechanics in addition to the changes to the jurisdiction close and the applicable law which you will agree with me Catherine where the obvious minimum things we had to do um I would mention three things first we have integrated within the body of the contract the metavente protocol uh into the French agreement uh in this change section 2a3 of the contract in the the manner recommended after the publication of the 2002 contact by is there just to reflect the issues faced by those diversions of interpretation of the close from English and New York courts and and fix uh the issue the way is there recommended to do second we have clarified that payment netting in France does not operate by way of Novation not a huge change we've just deleted by Innovation uh in the in the relevant provision and third we have also deleted the reference to any enforcement of the contract thought in equity because uh it's not an open route in civil law or before uh French gold the rest as I said is unchanged in the parties uh willing to switch from English to French law they are existing contract can do so by using a very short standard form Amendment agreement provided for this purpose without changing any of the other Financial or legal parameters of their schedules such as default threshold or specified entities and so on that were otherwise agreed in the existing schedule Judith what about in the Irish law version well from the perspective of the Irish dual versions of of all of these to documents for which they've been created to change their knowledgeable substantive in the case of the 2002 is the master agreement they are limited to those expressly required transition the choice of Courts and governing law provisions of those agreements to Irish courts and Claw and they reflect the approach taken to those choices with respect to the English law version by isda's 2018 is the choice of court in governing law guide in the case of the title transfer credit support documents again there are no substantive differences now as we all know is supporting Irish and French law versions of the 2002 and not the 1992 is the master agreement and so provision specific to the 1992 is to have been removed and amendments made to the English law version of the 2002 agreement by the 2002 isda master agreement protocol have been um have have been made amendments mating show version of of the um of the 1995 credit support Annex have been made uh where relevant so there is one example I think of an EU legislative reference being updated and that was just in the elections and variables section of the variation margin CSA so it's a little bit like those games we used to play as children where you got two pictures and you're trying to Spot the Difference very difficult to see the differences uh between the master agreement and the title transfer credit support documents under Irish and English law and in fact even in the security interest documentation the changes are minimal again we're obviously changing references to the Irish law and courts to from English law on courts to Irish long courts we're also replacing some references to English laws and English or concepts and with equivalent Irish law references or in one case deleting them for example there's no Irish equivalent to the English contracts rights of third parties act 1999 so we don't need an equivalent of the disapplication of that act that's included in the English version however I would like to emphasize that it's really not just the fact that the Irish and English documents are on very similar terms that is important to people considering which document to use and particularly to those already familiar with the English versions because for those who are familiar with the English versions the similarity of the Irish and English legal systems and insofar is relevant to is the documentation the contract law of England and Ireland and the presidential value of ordered decisions of the English courts before the Irish courts should also provide comfort that expectations as grads had the documents would be interpreted and operate should be respected [Music] thank you