Close-out netting for BVI, Cayman Islands, Guernsey, Jersey and Luxembourg counterparties

Ogier is counsel to the International Swaps and Derivatives Association (ISDA) in Guernsey and Jersey and provides netting and collateral opinions that are available to members from ISDA’s website and updated on an annual basis. The law firm is often asked to advise on the enforceability of close-out netting and set-off provisions under ISDA and other standard form agreements (including prime brokerage agreements) against counterparties incorporated or registered in the British Virgin Islands (BVI), the Cayman Islands, Guernsey, Jersey or Luxembourg.

This involves an analysis of the extent to which local laws recognise the enforceability of such provisions in pre- and post-insolvency circumstances. The relevant legislation from each jurisdiction is summarised in general terms in this briefing. Upon request, Ogier is able to provide opinions in respect of specific counterparties/types of counterparties and agreements.

The Insolvency Act 2003 of the British Virgin Islands (IA) provides that the netting of financial contracts is legally enforceable notwithstanding any provisions of the IA or the Insolvency Rules…

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