FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. · ¶74

Section 47(b)’s internal structure provides further support for this reasoning. Whereas Section 47(b)(2) contemplates a legal action to rescind the violative contract after it “has been performed,” Section 47(b)(1)’s language applies pre-performance, warning parties that a contract in violation of the ICA “is unenforceable.” Section 47(b)’s paragraphs therefore represent two sides of the same “shall be void” coin, spelled out in more detail than in the original Section 47(b): Neither party may enforce a contract that violates the ICA, but “any party” may seek to rescind such a contract if it has already been performed.

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