柜台市场衍生品净额结算条款的法律问题

The Legal Problems of Netting Settlement of OCT Derivatives

净额结算条款能有效降低信用风险,但它面临的最大困难是交易对手破产时各国法律体制的差异,这将影响净额结算条款的效力。尽管我国刚出台的《中国证券市场金融衍生品交易主协议》及补充协议涉及到净额结算条款,但终止净额制度在我国《企业破产法》上的有效性和可执行性是不确定的。为此,应尽早建立健全国内金融机构破产涉及跨国金融衍生交易项下债权债务方面的法律制度,保障我国金融机构顺利地开展国际衍生品业务。

The netting provisions can effectively reduce the credit risk, but the biggest difficulties it encountered from the counterparty bankruptcy is the legal systems of different countries vary, which will affect the net settlement terms. Although our country has just introduced the ＂China securities market, financial derivatives Master Agreement＂ and the supplementary agreement relates to the net settlement clause, the current law has not stipulated the validity and enforceability of close-out netting system in China＇s ＂enterprise bankruptcy law＂ is uncertain. We should establish and perfect the legal system of domestic financial institutions of bankruptcy regarding to cross-border financial derivatives transactions under the guarantee of debts as soon as possible. So China＇s financial institutions would smoothly open international derivatives business.