FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. · ¶61

Unlike in the original version of the statute, the amended Section 47(b)’s two paragraphs pertain to two different scenarios. In the first, the contract at issue has not yet been performed, but the ICA violation renders it “unenforceable by either party.” §80a–46(b)(1). In the second (the one relevant here), the problematic contract “has been performed,” but “a court may not deny rescission at the instance of any party” unless the equities counsel otherwise. §80a– 46(b)(2).

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