파생금융상품의 일괄청산에 관한 연구

Abstract

During the past decade, there has been an explosion in the volume of financial derivatives transactions. The volume of trading in financial derivatives has increased globally from 3 trillion dollar in 1990 to 142 trillion dollar in 2002. Fundamentally as financial derivatives transactions are bilateral transactions, parties should prepare for failure to perform their obligations, such as the insolvency of one of the parties. Generally the parties use "Netting". Netting can be understood simply as another term for set-off. But netting is used in the markets because in many cases the process involves more than just a set-off of debts. ISDA(International Swaps and Derivatives Association. Inc) Master Agreement(2002) is widely used for financial derivatives transactions in the international and domestic markets. Master Agreement stipulates netting. Essentially, there are three forms of netting, which are payment netting, novation netting(obligation netting) and close-out netting. This study focuses on close-out netting of financial derivatives. Master Agreement provides early termination for the occurrence of failing to perform their obligations. Events of early termination are events of default and termination events. Close-out netting is that upon the occurrence of one of the events of default, the party terminates its outstanding derivatives contracts and calculates the gains and losses of the parties and goes on to lay down that these gains and losses should be brought into a single account so that only the balance is payable. If the bankruptcy of either party, which is one of the Events of Default occurs, the issue arises from the point whether close-out netting provision entered into between two parties under master agreement is valid in insolvency proceeding. That is because no provision related to close-out netting exists in insolvency law. It is possible that Close-out netting provision conflicts with the provisions of executory contracts, avoidance power and set-off. The termination of contracts defeats the insolvent party's ability to cherry-pick. Close-out netting can be avoided by applying avoidance transactions. And it is possible that close-out netting can be limited by the operation of set-off. The purposes of this study are to examine the enforceability of close-out netting of financial derivatives in insolvency law, to indicate the necessity of legislative solution and to propose a draft of close-out netting provision in insolvency law. Following the introduction, in Chapter 2, this thesis explores definitions of financial derivatives and close-out netting in statutory law. Chapter 3 examines whether close-out netting of financial derivatives provision is valid in insolvency procedure and indicates that a legislation is essential to eliminate legal uncertainty. In Chapter 4, this study compare the provisions related to close-out netting in other jurisdictions, which are US. Bankruptcy Code, German Insolvency Law, Japanese Close-out netting law and E.U. Directive. Chapter 5 compares the two proposals suggested so far and analyzes their advantages and disadvantages. As a conclusion, Chapter 6 proposes a draft of close-out netting provision in insolvency law.