장외파생상품거래에서 안전항 조항의 보호 범위에 관한 연구

The United States have safe harbor provisions that guarantee certain contractual rights of OTC derivatives transactions to non-defaulting parties, even if the clauses of the contract violate bankruptcy law. The rights protected by these provisions are for liquidation, termination, acceleration of the swap, and offsetting and netting the termination values. In a legal dispute arising out of the bankruptcy case of Lehman Brothers, the United States courts found several clauses of OTC derivative contracts such as the flip clause to be ineffective because they were ipso facto clauses. The court then ruled that some of those clauses were protected by provisions of the Safe Harbor and some were not. When Korean banks and corporations trade OTC derivatives with foreign banks and corporations, US cases are often directly binding on the korean institutions because they use the ISDA Master Agreement in English language and specify New York law as the governing law. The first half of this study examines recent US judgements, and analyzes grounds on which some clauses are protected by the safe harbor and the other clauses are not. On the other hand, it is also necessary to find out whether the contractual clauses in question fall within the protection scope of Article 120 (3) of Debtor Rehabilitation and Bankruptcy Act, which can be referred to as the Korean Safe Harbor. If the bankruptcy proceedings are initiated in Korea, the Debtor Rehabilitation and Bankruptcy Act, which is the law of forum, may be applied to determine whether the issue clauses are valid under the bankruptcy law and whether they are protected by the safe harbor, regardless of which country’s law is proper. The latter half of this study examine whether the issue clauses are in violation of the law on Debtor Rehabilitation and Bankruptcy Act, and if so, whether they can be protected under Article 120 (3) of the same law.