Topic outline
General
Derivados Financeiros
Destinatários:
Juízes e Magistrados do Ministério Público.
Data e Local:
Lisboa, 12 e 13 de março de 2015 - Auditório do Centro de Estudos Judiciários
Topic 1
Dia 12 de março de 2014
Session 1 – Agenda, Background and history – PRIME F and ISDA
1.1 Where, how and when did the derivatives market start
1.2 Derivatives as opposed to other financing techniques, such as loans
1.3 Formation and role of market sponsor entities – i.e., ISDA and the ISDA Master Agreement, and other market sponsor entities and their master agreements, such as ICMA/SLRC and their repurchase and stock lending master agreements
1.4 Prominence and leading role internationally of the London/New York financial and legal market axis, and hence English and New York law and English as the lingua franca of markets
1.5 Regional developments in derivatives markets and documentation
1.6 Regulation of derivatives in various jurisdictions, and role of market sponsor entities in regulatory developments and reform
1.7 Derivatives and financial markets jargon
• Open slot for Q&A and discussion
Topic 2
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PRIME F and ISDA Session 2 – Key types of derivatives and other complex financial transactions, their uses and risks
2.1 Understanding the economics of derivatives
2.2 Basic building blocks - futures and options
2.3 Valuation methodologies
2.4 Interest rate swaps, currency derivatives, commodity derivatives, equity derivatives and credit derivatives
2.5 Rationale behind the use of derivatives
• Open slot for Q&A and discussion
Topic 3
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Dia 13 de março de 2014
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Session 3 – Derivatives and complex financial transactions documentation PRIME F and ISDA
3.1 Understanding the ISDA Master Agreement structure and its architecture [e.g., of specific purposes of Master Agreement, schedule, confirmation, incorporation of documents by reference (e.g., ISDA definitions), changes made to standard forms by parties, how different types of derivatives are documented, etc.]
3.2 Outline of development and purpose of ISDA Master Agreements (1987, 1992 and 2002), schedules, user guides, definitions, etc., and the key changes made from one form of agreement to the next (e.g., types of netting, set-off, walk-away clauses and the Second Method, Loss v. Market Quotation, etc.)
3.3 Outline of drafting history of ISDA Master Agreements, schedules, user guides, definitions, etc., and legal issues considered and opinions of leading counsel sought.
3.4 Outline of key provisions of ISDA Master Agreement and schedules (e.g., conditional payment, events of default, termination events, close-out netting, choice of law, etc.)
3.5 ISDA multi-jurisdictional netting, enforcement and collateral opinion projects
3.6 Conflict of laws, cross-border and insolvency issues and concerns
3.7 Measures of damages and close-out methodologies
• Open slot for Q&A and discussion
Topic 4
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Session 4 – Derivative Litigation in Portugal – CARDIGOS (PRIME F Expert/ISDA Local Counsel)
4.1 Types of cases
1. Counterparty types
2. Derivative products involved
3. Amounts
4.2 Legal issues raised and rationale sustained
1. Jurisdiction and Applicable law
2. Governing Law – Portuguese Mandatory provisions
a. Wages/Gambling and ordre public (“ordem pública”)
b. Change of Circumstances
c. Civil Liability: Duties of the Financial Intermediary
d. General Contractual Clause Regime
e. Others
4.3 List of Appellate and Supreme Court Decisions: Legal solutions applied by courts
• Open slot for Q&A and discussion
Topic 5
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Session 5 – Local Derivatives Market and its Need for Hedging provided by Derivative Instruments Structures
The financial risk taking and risk coverage perspectives
• Open slot for Q&A and discussion
Topic 6
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Session 6 – What do judges need to know? PRIME F and ISDA
6.1 Brief indication and summary of leading derivative litigation cases.
6.2 What does the case law teach us (e.g., most cases raise contractual interpretation and/or valuation issues)?
6.3 How can judges do their job better?
6.4 Why do bankers, traders and counsel behave the way they do, and how do they behave (e.g., counsel gaming the court)?
6.5 Role of expert witnesses, and lessons to be learned from the giving of expert testimony
6.6 What are the key legal and contractual issues?
6.7 What are the key regulatory and policy issues?
6.8 What are the likely future issues that courts will face?
6.9 What are the key local and regional issues?
• Open slot for Q&A and discussion
Topic 7
Topic 8
Topic 9
Topic 10