일괄정산네팅(close-out netting)규정의 운용을 위한 UNIDROIT 원칙의 소개

A ‘close-out netting provision’ is an agreement that reduces or replaces the obligations owed by the parties to a transaction to a single net obligation when insolvency proceedings are commenced with respect to one of the parties. This net obligation is due and payable by one party to the other either automatically or at the election of one of the parties. The enforceability of the close-out netting provision must be ensured because close-out netting reduces credit risk, risk that a counterparty will not settle an obligation for full value when it is due and systemic risk--such as the collapse or failure of the financial settlement system. UNIDROIT adopted ‘UNIDROIT Principles on the Operation of Close-out Netting Provisions’ in 2013; however, it is not an international convention that has a legally binding effect. Its introduction, though, is essential as it provides guidelines to each state to harmonize basic provisions of the law with respect to close-out netting. The Principle consists of eight principles. Principles 1 through 4 provide the scope of application for recognizing the enforceability of the close-out netting provision. The remaining principles provide legislative policies to secure enforceability of the close-out netting provision.