P.R.I.M.E. Finance Arbitration Amendments for use with 1992 and 2002 ISDA Master Agreements
P.R.I.M.E. Finance has published forms of agreements that are intended to be used to amend existing 1992 and 2002 ISDA Master Agreements to provide for arbitrations under the P.R.I.M.E. Finance Arbitration Rules in lieu of litigation in the courts of either New York or London. The first set of P.R.I.M.E. Arbitration Amendment Agreements provides for arbitrations to be conducted in Geneva or Zurich, The Hague, Hong Kong, London, New York, Paris or Singapore, as the parties may elect. Only P.R.I.M.E. Finance offers this geographic flexibility while using one set of rules and providing access to one international panel of leading experts on disputes involving complex financial products.
Set forth below is an explanation of some of the key features of P.R.I.M.E.’s Arbitration Amendment Agreements.
- The Arbitration Agreement: All the P.R.I.M.E. forms use the same clause to replace Section 13(b) in existing 1992 or 2002 ISDA Master Agreements. This clause is intended to clearly cover both disputes under a master agreement itself and disputes that involve individual transactions documented thereunder. This clause also broadly covers misselling claims related to transactions by incorporating both common law and civil law concepts.
- Governing Law: The P.R.I.M.E. Arbitration Amendment Agreements for Singapore and Hong Kong amend Section 13(a) of the 1992 and 2002 ISDA Master Agreements to select local law (i.e., Singapore or Hong Kong law) for the arbitration agreement in Section 13(b) and leave the law previously selected by the parties in the Schedule in place for all other matters. The P.R.I.M.E. working groups of leading experts in Singapore and Hong Kong recommended this approach to address a small degree of uncertainty created by a recent English court decision. The P.R.I.M.E. working groups of leading experts in other jurisdictions concluded that it would be sufficient to have the amendment agreements be governed by the law previously selected by the parties in the Schedule.
- Service of Process: The P.R.I.M.E. working group of leading experts in Paris recommended replacing any existing Process Agent with a Domiciliation Agent to receive service of process for any proceedings in the French courts related to a P.R.I.M.E. arbitration in Paris. The other P.R.I.M.E. working groups concluded that existing Process Agent arrangements are satisfactory for litigation related to P.R.I.M.E. arbitrations conducted in their jurisdictions.
- Waiver of Immunities: Each P.R.I.M.E. Arbitration Amendment Agreement amends and restates Section 13(d) of the 1992 and 2002 ISDA Master Agreements in order to add appropriate references to “arbitral tribunal” and “arbitral award” and (b) state in the last five lines that the waiver applies to court proceedings in any jurisdiction in connection with a P.R.I.M.E. arbitration (including an arbitral award obtained pursuant thereto). The approach described in clause (b) above is consistent with the corresponding language in Section 13(d) in the 1992 and 2002 ISDA Master Agreements.