日本私法における一括清算と三者間相殺

[1] X (corp. ltd.), a Japanese subsidiary of Lehman Bros. U.S., had continued with its counterpart Y (corp. ltd., professional bank-trustee) through derivative contracts, mainly about interest rate and foreign currency swaps. The X also had contractual relations of the same nature with the Z (corp. ltd., stocks investment broker-bank, sister company of the Y). Between the Y and the X there was a clause in this ISDA master agreement, which allowed the “close-out netting”, operation called as “set-off” of “early terminiated” swaps. This clause also provides that the Y may invoke the sett-off of its debt to the X with the claim of the Z against X (operation called “triangular set-off”). However, the Z had agreed to the clause only after the X's procedure opening. [2] September 19, 2008, the court of first instance of Tokyo declared the opening of the insolvency procedure of the X. On 1 October, two weeks after the opening date, the Z belatedly notified X and Y of its agreement to the clause in this “triangular set-off” agreement. X demand the Y for the payment of the netting balance. [3] The Tokyo Court of Appeal dismissed this claim of X considering that by the effect of the triangular netting clause previously entered into between the X and Y in the form of the ISDA Master Agreement, the right of claim of the X against the Y had been extinguished by the set-off with a right of claim that a third (the Z) could exert against the X. [4] The Supreme Court, however, ordered the Y to pay the X the sum of the netting balance by rejecting the interpretation that the Court of Appeal retained. [5] Set-off is an institution the purpose of which is to enable parties who have reciprocal claims (of the same object and due) to settle them by a simple and fair process. In the case, because between the X and the Y the reciprocity of the debts had not been found until the end, so the Y can not invoke the set-off towards the X. [6] The judgment of the Court of Appeal and its supporters believe that, without require the reciprocity between two parties, the effectiveness of set-off invoked by the Y to third parties might be justified by the application of an interpretation derived from a judgment of the Grand Chamber of the Supreme Court of 24 June 1970, Minshu 24.6.587 which protected the expectation of the third-party debtor (bank) to oppose the extinguishment of its premature debt by set-off reserved by agreement against the seizing creditor. [7] The Supreme Court rightly rejected this confused idea, by applying the art. 92 of the Code of Civil Recovery Procedure. Because the judgment of 1970 implied the reciprocity of claims for set-off. [8] The author emphasizes that in the conception of set-off in Japanese (Sousai), French (compensation) and English private law, the reciprocity between two debts is always an absolute and indispensable condition of this operation. By an assignment of debt (cession de créance; the Z transfers to the Y its claim right against the X) or an assignment of debt (cession de dette; the Z takes over the debt of the Y against the X) become effective before the date of the proceedings, the parties may indirectly create the situation of reciprocity. Apart from this method, they can also use an institution by the triangular agreement for the replacement of the two debts to one: délégationnovatoire (“KanzenShokutaku” in Japanese Civil Code 1890 of Boissonade) [9] Finally, the author wants to clarify the confines of terminology. The term triangular “set-off” is often used in various cases. There are, in fact, (1) the applications of codified triangular set-off in the strict sense of the Japanese Civil Code. The surety person and the ceded debtor those who can oppose the set-off to the defined third parties; (2) the case of the délégation novatoire (triangular “set-off” is its pseudonomy); (3) the case of the extension of the insolvency procedure to the other legal person, when the fictitiousness of the moral person or the confusion of the assets is proved by an application of a extention rule codified in the French Code de Commerce and which Japanese law does not know. In the case of Lehman Bros., the notification by Z to participate in an agreement of “triangularset-off” has been given after the date of procedure. Any instrument is not available for Y in this case.