ISDA 기본계약 s.2(a)(iii)의 도산절차에서의 효력

The collapse of Lehman Brothers which arose in the train of recent financial crisis has brought a number of legal issues in the field of OTC transactions. The section 2(a)(iii) of ISDA Master Agreement provides that non-existence of an event of default with respect to a party is a condition precedent of a duty for a counter party to pay. If an event of default or potential event of default with respect to a party has occurred and is continuing, the other party may suspend payment which otherwise would be made to the defaulting party. Besides, if the defaulting event is incurable such as a bankruptcy, non-defaulting party may postpone his payment forever, and be eventually exempted from a debt. This thesis dealt with the enforceability of section 2(a)(iii) of ISDA Master Agreement. In the precess of problem solving of the collapse of Lehman Brothers which arose in the train of recent financial crisis, this problem has been dealt with by the courts in the both sides of Atlantic and conflicting conclusions have been made. The United States Bankruptcy court of Southern District of New York hold that the non-defaulting party would never be allowed to suspend payment based on section 2(a)(iii) of ISDA Master Agreement since that section was unenforceable. It is because that section 2(a)(iii) of ISDA Master Agreement violates the section 365(e)(1) of United States Bankruptcy Code. On the other hand, the Court of Appeal in the UK decided that section 2(a)(iii) of ISDA Master Agreement is enforceable, which means that the non-defaulting party is not required to make payment until the default is cured. It is because that clause does not violate the principle of prohibition on deprivation since that clause is commercially reasonable. It is also because that clause does not violate the principle of creditor equality since the suspended credit is not asset of a bankruptcy estate. In Korea, there is an opinion that section 2(a)(iii) of ISDA Master Agreement is enforceable since that clause is on ‘the termination and settlement of the eligible financial transaction’ provided in the section 120(3) of Debtor Rehabilitation and Bankruptcy Act. However, the section 120(3) of Debtor Rehabilitation and Bankruptcy Act could not be applicable since the suspension of payment arises only at the time when non-defaulting party does not exercise the early termination right to eligible financial transaction. In other words, the suspension clause is not on the termination of eligible financial transaction. To my mind, the suspension clause is unenforceable since it is against the clause of public policy if it is constructed to allow the payment be postponed forever. There are three reasons: first, the exemption of non-defaulting party's debt could unforeseeably harm a creditor of bankruptcy estate based on accidental bankruptcy of defaulting party: second, the suspension clause superficially looks like to relate with the principle of freedom of contract, but it belongs to the realm of mandatory rules since the suspension clause actually harms an interest of a creditor of bankruptcy estate only with a favor of both parties of the contract; third, it is not specially unfavorable against a non-defaulting party, even if non-defaulting party should execute his duty because of invalidity of the suspension clause, non defaulting party have the option to terminate ISDA Master Agreement, which would result in the proper settlement considering all circumstances. This thesis concludes that the payment obligation suspended by the clause revive on the expiry of all transactions between the parties governed by the Master Agreement.