Recent Publications

ISDA Publishes Form of Amendment to Address Uncertainty Regarding Section 2(a)(iii)

The International Swaps and Derivatives Association, Inc. (“ISDA”) has published a form of amendment to the 1992 and 2002 ISDA Master Agreements intended to address continuing uncertainty regarding the condition precedent set forth in Section 2(a)(iii) of both such Master Agreements (“Section 2(a)(iii)”). >>

ISDA Section 2(a)(iii): Problems and Solutions

In recent years, one clause of the ISDA Master Agreement has been the source of a great deal of consternation among derivatives lawyers: the condition precedent set forth in Section 2(a)(iii), which purports to suspend a party’s payment obligations in the event of a continuing default by the other party. >>

CFTC Loosens Requirements for Swaps for Utility Special Entities

On March 21, 2014, the Division of Swap Dealer and Intermediary Oversight (“Division”) of the CFTC issued a no-action relief letter (the “2014 Letter”), to temporarily allow entities to deal in utility operations-related swaps, as defined in the 2014 Letter, without counting such swaps towards the “sub-limit” threshold for swap dealer registration with regard to such swaps. >>



Brian Y. Sung

Counsel

New York


30 Rockefeller Plaza
26th Floor
New York, 10112
T +1 212.659.4964
F +1 212.884.8220

Áreas de Practica

Educación

  • J.D., Columbia Law School, 2000, Managing Editor, Journal of Transnational Law; Parker Certificate (Achievement in International Law)
  • A.B., Economics and Government, Dartmouth College, 1997, Editorial columnist, campus daily paper The Dartmouth; Board member, World Outlook international affairs journal

Bar Admissions

  • New York, 2001

Idiomas

  • Inglés
  • Korean
  • Español
Brian Y. Sung

Brian Sung is counsel in the Finance practice group in the New York office of Haynes and Boone, LLP, and concentrates his practice in the areas of derivatives, prime brokerage and equity lending and structured finance. He represents banks, hedge funds and other financial institutions as well as borrowers, institutional investors and other corporate entities in connection with a variety of derivatives, structured products and other financing transactions and in providing related regulatory and interpretive advice.

Representative Experience

  • Representation of investment banks, hedge funds, lenders, borrowers, hedge counterparties, energy companies and other end users in the entry into ISDA Master Agreements and a variety of hedging and swap transactions.
  • Provision of interpretive advice on terms of new and existing ISDA Master Agreements, derivatives transactions and ISDA definitions, annexes and forms.
  • Representation of investment banks in standalone and program total return swap and equity- and hedge fund-linked derivatives transactions.
  • Representation of investment banks, hedge funds, energy companies and other end users in plain-vanilla and structured currency-, rate-, energy- and commodity-linked swaps.
  • Representation of investment banks, life settlement providers/originators, insurers and reinsurers in longevity-, mortality- and catastrophe-linked swaps, bonds and other risk transfer arrangements.
  • Representation of investment banks and hedge funds in bespoke credit default swap transactions in OTC swap form and in credit-linked note form referencing a range of underlying reference obligations.
  • Representation of investment banks and structured vehicles in connection with the establishment and amendment of derivatives product companies (DPCs) and related derivatives transactions.
  • Representation of banks on establishment of structured note and repackaging programs, and issuance of notes, trust certificates and certificates of deposit.
  • Representation of banks, dealers and hedge funds on repo, stock lending and prime brokerage and custody arrangements.
  • Representation of arrangers, collateral managers, swap counterparties, monoline financial guarantors and institutional investors in the structuring, negotiation, documentation, restructuring and amendment of, and interpretive advice in relation to, cash, hybrid and synthetic collateralized debt obligation (CDO), collateralized loan obligation (CLO) and structured investment vehicle (SIV) transactions.
  • Representation of life settlement providers/originators, insurers and investment banks in the warehousing and securitization of life settlement policies and related regulatory and structuring advice.
  • Advising banks, secured parties and other counterparties as to ramifications of the potential insolvency, rating downgrade or default of counterparties such as banks, hedge counterparties, insurers, custodians, trustees, borrowers and monoline financial guarantors under relevant transaction documents as well as relevant insolvency, banking and insurance regulatory regimes.
  • Representation of collateral managers and institutional investors in connection with the workout and restructuring of various distressed and defaulted structured products assets and investments.
  • Representation of monoline financial guarantors, investment banks, reinsurers, structured vehicles and swap counterparties in primary and secondary credit protection arrangements involving the issuance of financial guaranty insurance policies and/or entry into credit default swap transaction referencing a variety of underlying financial assets, and amendments and restructurings of such arrangements.

Brian also has experience working on a broad range of finance, M&A, private equity and securities transactions.

Selected Representative Experience


Deutsche Bank/Green Energy Team Hawaii Biomass Project
Represented Deutsche Bank Securities Inc., as Mandated Lead Arranger and Lender for a $76.1 million loan facility to fund construction of a 7.5-megawatt (net) biomass-to-energy facility on the island of Kaua'i, Hawaii.

Online Publications

06/24/2014 - ISDA Publishes Form of Amendment to Address Uncertainty Regarding Section 2(a)(iii)
The International Swaps and Derivatives Association, Inc. (“ISDA”) has published a form of amendment to the 1992 and 2002 ISDA Master Agreements intended to address continuing uncertainty regarding the condition precedent set forth in Section 2(a)(iii) of both such Master Agreements (“Section 2(a)(iii)”).

04/23/2014 - ISDA Section 2(a)(iii): Problems and Solutions
In recent years, one clause of the ISDA Master Agreement has been the source of a great deal of consternation among derivatives lawyers: the condition precedent set forth in Section 2(a)(iii), which purports to suspend a party’s payment obligations in the event of a continuing default by the other party.

04/04/2014 - CFTC Loosens Requirements for Swaps for Utility Special Entities
On March 21, 2014, the Division of Swap Dealer and Intermediary Oversight (“Division”) of the CFTC issued a no-action relief letter (the “2014 Letter”), to temporarily allow entities to deal in utility operations-related swaps, as defined in the 2014 Letter, without counting such swaps towards the “sub-limit” threshold for swap dealer registration with regard to such swaps.

12/11/2013 - Dodd-Frank Update: Cross-Border Application
The U.S. Commodity Futures Trading Commission has issued interpretive guidance regarding which Dodd-Frank requirements apply to certain non-U.S. swap transactions.

05/15/2013 - Dodd-Frank Update: CFTC ISO/RTO Exemptive Order
On March 28, 2013, the Commodity Futures Trading Commission (“CFTC”) issued a final order exempting specified transactions by certain regional transmission organizations (“RTO”) and independent system operators (“ISO”) from all but the general anti-fraud and anti-manipulation prohibitions of the Commodity Exchange Act (“CEA”) and related CFTC regulations promulgated thereunder (“Exemptive Order”).

05/10/2013 - Dodd-Frank Update: CFTC Inter-Affiliate Swap Clearing Exemption
On April 1, 2013, the U.S. Commodity Futures Trading Commission (“CFTC”) issued a final rule exempting swaps between certain affiliated entities from the clearing requirement under section 2(h)(1)(A) of the Commodity Exchange Act (“CEA”) and CFTC regulations (“Final Rule”).

04/03/2013 - Update on Dodd-Frank Requirements for Swap Guarantees
The Commodities Futures Trading Commission (the “CFTC”), pursuant to its rulemaking authority under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) , has interpreted guarantees of swap agreements to fall under the definition of a swap...

02/21/2013 - Credit Agreement Guarantees and Similar Agreements May Require Amendments to Remain Dodd-Frank Compliant
Pursuant to new rules and interpretations issued by the U.S. Commodity Futures Trading Commission (the “CFTC”) and the Securities Exchange Commission under the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with related rules, regulations and interpretations, the “Dodd-Frank Act”), a “swap” has been interpreted to include any guarantee of a swap.

12/18/2012 - ISDA Protocol Compliance Deadlines Delayed
End users will be relieved to know that compliance dates for business conduct and documentation rules related to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) have now been delayed until May 1, 2013.

11/30/2012 - ISDA Protocol Compliance Deadlines Loom
On November 20 and 27, 2012, the International Swaps and Derivatives Association, Inc. (“ISDA”) filed two letters with the Commodity Futures Trading Commission (“CFTC”) requesting an extension of compliance dates for certain new business conduct, portfolio reconciliation and swap trading relationship documentation requirements issued by the CFTC pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).

12/05/2011 - CFTC Position Limit Rules Challenged in Lawsuit by ISDA and SIFMA
On Friday, December 2, 2011, the International Swaps and Derivatives Association ("ISDA") and the Securities Industry and Financial Markets Association ("SIFMA") jointly filed a lawsuit in the U.S. District Court for the District of Columbia against the Commodity Futures Trading Commission ("CFTC") and a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit challenging the final rules establishing speculative position limits on certain physical commodity futures and option contracts (the "Position Limit Rules"), which were adopted by the CFTC at its October 18, 2011 meeting.

11/16/2011 - Update on CFTC Rulemaking: CFTC Issues Final Rules on Position Limits for Commodity Futures and Swaps
At its open meeting on October 18, 2011, the Commodity Futures Trading Commission adopted final rules to establish speculative position limits for 28 physical commodity futures and options contracts and futures, options, swap, or swaption contracts that are economically equivalent to such Core Referenced Futures Contracts.

10/17/2011 - Update on CFTC Dodd-Frank Rulemaking: CFTC Outlines Rulemaking and Implementation Timelines and Announces Delays in Large Trader Reporting Requirements
This alert provides updates on CFTC rulemaking and implementation timelines and delays in large trader reporting requirements.

09/28/2011 - Update on CFTC Rulemaking Regarding Agricultural Swaps and Commodity Options
The Commodity Futures Trading Commission (“CFTC”) has finalized two rules to authorize swaps (other than options) in agricultural commodities which will (i) correct existing inconsistencies, bring the regulation of agricultural swaps in line with the regulation of all other swaps under the CFTC’s jurisdiction, and clarify that agricultural swaps may be listed or traded on swap execution facilities or designated contract markets, and (ii) provide a definition for regulatory purposes of the term “Agricultural Commodity.”