Lex Financiaria. Das transnationale Finanzmarktrecht der International Swaps and Derivatives Association (ISDA)
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The International Swaps and Derivatives Association (ISDA) is the dominating rule maker in the markets for financial derivatives including the market for credit default swaps (CDS). The impact of the market for such derivatives on other sectors of the economy and society is potentially massive. Crucially, the ISDA's Credit Derivatives Determination Committees (DCs) power to determine the existence of a credit event requiring payment can drastically impact the fiscal situation of a state, given that CDS are also used to secure Government bonds. The recent decision on Argentina is a case in point. Against this background, this paper first gives a detailed account of the legal design of the ISDA DCs. This analysis shows that, unlike other transnational adjudicatory bodies, the DCs do not primarily aim to guarantee transactional security for single contractual obligations. Rather, they constitute a new type of transnational adjudication whose function is to guarantee the congruency of all positions in a contractual network. However, the ISDA and its DCs also raise fundamental normative questions. How is it possible that the legal infrastructure for markets with such a key role in the global economy is generated by a private institution such as the ISDA? Drawing on a variety of legal pluralist approaches as well as on new socio-legal theories of transnational financial market law, I propose to understand the ISDA as instantiation of a transnational legal force. Assuming that transnational law creation comprises a variety of societal jurisgenerative forces not limited to national or international polities, the need for a normative foundation applies to all forms of transnational law creation irrespective of their private or public nature. While the forms and structures of such a normative foundation have yet to be fully systemized, it is clear that ISDA's transnational legal force in the derivatives markets calls for a normative justification that goes beyond state-centered regulatory oversight. With reference to a macro approach to human rights and finance, the obligation for a human rights due diligence can be seen as a first step towards (re)establishing a normative dimension to the transnational rule-making processes of the ISDA.