Hostname: page-component-7c8c6479df-94d59 Total loading time: 0 Render date: 2024-03-28T02:07:29.137Z Has data issue: false hasContentIssue false

CDS Zombies

Published online by Cambridge University Press:  09 October 2012

Anna Gelpern
Affiliation:
American University Washington College of Law and Duke Law School.
Mitu Gulati
Affiliation:
American University Washington College of Law and Duke Law School.
Get access

Abstract

This paper examines the contract interpretation strategies adopted by the International Swaps and Derivatives Association (ISDA) for its credit derivatives contracts in the Greek sovereign debt crisis. We argue that the economic function of sovereign credit default swaps (CDS) after Greece is limited and uncertain, partly thanks to ISDA's insistence on textualist interpretation. Contract theory explanations for textualist preferences emphasise either transactional efficiency or relational factors, which do not fit ISDA or the derivatives market. We pose an alternative explanation: the embrace of textualism in this case may be a means for ISDA to reconcile the competing political demands from state regulators and its market constituents. We describe categories of contracts susceptible to such political demands, and consider when and why textualism might be the preferred response.

Type
Articles
Copyright
Copyright © T.M.C. Asser Press and the Authors 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)