Over-the-counter derivatives are traded between two parties, not through an exchange or intermediary. The size of the over-the-counter market means that risk managers must carefully review traders and ensure that authorized transactions are properly managed. When two parties complete a transaction, they will each receive confirmation explaining their details and referring to the signed agreement. The terms of the ISDA master contract then cover the transaction. This uniform approach to the agreement is an integral part of the structure and part of the network-based protection offered by the framework agreement. The fact that all transactions are the sole contract enhances the ability to close these transactions and obtain a one-time net amount payable in the event of default. Section 2, point d) of the ISDA executive contract contains provisions that determine the consequences of imposing a tax on a payment made by a party in connection with a transaction. It includes a gross redemption obligation for certain “compensated taxes.” This is in addition to other provisions of the ISDA management contract, such as tax representations contained in ss 3 (e) and 3 (f), companies of ss 4 (a) and 4 (d) and termination events of ss 5b) (ii) and 5 (b) (iii). These provisions are extremely complex and negotiators generally ensure that the result is not the opposite of what was intended. Derivatives transactions are generally conducted orally or electronically and the contract between the parties is concluded on that date. Proof of the terms of the transaction is contained in a confirmation (also known as a business advice or contract note), usually a short letter, fax or email.
The form of the confirmation is defined in the framework contract and a limited period of time is generally allowed for any objection or change in confirmation after receipt. Confirmations are generally very short (excluding complex transactions) and contain little more than dates, amounts and prices. Confirmations are exchanged to minimize the possibility of litigation over the terms of a transaction. The framework contract also helps to reduce litigation by providing significant resources that define its contractual terms and explain the intent of the contract, thus preventing litigation from beginning and providing a neutral resource for interpreting standard contractual terms. Finally, the framework agreement provides significant assistance in managing risks and credit for the parties. Once a loyalty letter has been accepted by the ISDA, an adjacent party is required, by its agreement, to enter into a McA with other parties that have already complied with the protocol or, subject to discussion below, to stick to the date of the annual retraction.