The Bankruptcy Code's Safe Harbors for Settlement Payments and Securities Contracts : When Is Safe Too Safe?

This Article addresses insolvency law-related issues in connection with certain financial-markets contracts, such as securities contracts, commodity contracts, forward contracts, repurchase agreements (repos), swaps and other derivatives, and master netting agreements. The Bankruptcy Code provides special treatment — safe harbors — for these contracts (collectively, qualified financial contracts or QFCs). This special treatment is considerably more favorable for nondebtor parties to QFCs than the rules applicable to nondebtor parties to other contracts with a debtor. Yet even some strong critics of the safe harbors concede that some special treatment may be warranted. This Article offers a critique of the safe harbor for settlement payments, as interpreted by the courts, and the safe harbor for transfers in connection with securities contracts that is clearly written into the Bankruptcy Code. It provides an overview of the legislative history, describes the scope and operation of the statutory components of the safe harbors, briefly describes the various academic critiques, and offers my general views on revisions that should be made to the safe harbor provisions. It questions the quite expansive interpretation given by some courts to the safe harbor for settlement payments. It then explains how the safe harbor for transfers made in connection with security contracts could be used to protect from the avoidance powers payments and collateralizations of ordinary debt, transactions that have nothing to do with the QFC markets