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{{a|g|}}{{dpn|/ˌlɪtɪˈɡeɪʃᵊni/<br> (Also [[suish]], [[squabblative]]|adj}}Of a commercial issue, important, basically straightforward, but thanks to the intervention of [[professional advisers]], rendered in language so opaque that no-one outside an [[Clavam Hominum Senum Pallidorum|inner cabal]] knows what is really going on.
{{a|g|{{image|leagle beagle|jpg|Now, what is this “[[Aïessdiyé]]” of which you speak?}} }}{{dpn|/ˌlɪtɪˈɡeɪʃᵊni/<br> (Also [[suish]], [[squabblative]]|adj}}


It often describes commercial endeavours that are predicated on [[plausible deniability]] — for example, that [[credit default swap]]s are not [[insurance contract]]s, or that [[equity swap]]s aren’t [[stamp duty|stampable]] investments in [[shares]] — which fictions oblige practitioners to adopt silly walks, secret handshakes and elliptical ways of describing ordinary things, all in the service of not uttering inconvenient realities.
{{drop|O|f a commercial}} issue, important, basically straightforward but, thanks to the sedimentary interventions of generations of [[professional advisers]], rendered in language so opaque that no-one outside an [[Clavam Hominum Senum Pallidorum|inner cabal of specialists]] knows what is really going on. And that inner cabal sure ain’t talking.  


They become squabblative because while the [[legal eagle|practitioners]] who propagate these arrangements are well drilled, fluent and strongly incentivised to maintain this theatre, their counterparts in the litigation department, at the bar and on the bench are not.
“Litigationey” often describes commercial undertakings predicated on some kind of “[[plausible deniability]]”: contractual arrangements which rather wish they were, or looked like, ''something else''.  


We have remarked before about the differing [[purpose|functions]] a contract has during its lifecycle, for sales, operations and trading departments. When it reaches cataclysm, the parties find a different purpose again: to deny utterly the tacit accommodations they made to each other in fair times to reach mutual goals in a compliant and tax efficient manner. This is the great disadvantage of hindsight: how we are goaded to forget.
For example, it is important to those who sell [[credit default swap]]s that they should not be mistaken for [[insurance contract]]s. Dealers in [[equity swap]]s wish them to be not considered [[stamp duty|stampable]] investments in [[shares]]. Those who truck in collateral like to take it subject to [[pledge]] but, at the same time, be free to [[rehypothecation|give it away]].  


But litigation advisers and those who adjudicate disputes don’t have even that much incentive, and none of the practical experience. There are $60 trillions of derivative notionals outstanding at any time: documenting and day-to-day managing them keeps a military-industrial complex of worker bees gainfully employed from Nashville to Manila.
These fictions are ''loosely'' based on true stories — they are well-''meant'' — but in their dramatic sweep they oblige practitioners to ''dissemble'' — to affect silly walks, use secret handshakes and invent elliptical ways of describing mundane things, all in the service of ''not uttering inconvenient realities''.  


ISDAs come before the courts one at a time. They are exotic specimens, rather like those rare ghost orchids retrieved from the sweaty depths of a tropical swamp. It is usually obvious that no-one conducting the argument has much of a sense of what they are for or how they work, and those adjudicating certainly don’t.  
Of course, the same circumlocution that foxes the taxman can bamboozle a judge.


And here {{icds}}’s vernacular plays into the hands of caprice and obstrepereity. That wanton left-handedness begs to be misunderstood. Just try asking a non-specialist to glom onto a [[flawed asset]] clause,<ref>{{casenote|Metavante|Lehman}}?</ref> a credit derivative {{cddprov|Event Determination Date}}, or even the {{isdaprov|Notices}} provisions of an {{isdama}}.<ref>{{casenote|Greenclose|National Westminster Bank plc}}</ref>
Thus over time, workaday documents become [[squabblative]] because, while the [[legal eagle|practitioners]] who propagate them are well-drilled, fluent in these arcane language games and strongly incentivised to maintain the theatre, those who come to them cold — who often hail from the foreign climes of [[Litigation|litigation department]], [[King’s Counsel|bar]] or [[King’s Bench Division|bench]] — are not.


There are some cases where the confusion goes deeper: the JC’s contention is that [[credit default swap]]s are an intrinsically left-handed way of solving a straightforward problem, and as such are bound to create fear and loathing.  
We have remarked before about the differing [[purpose|functions]] a [[contract]] has during its life. [[Sales]], [[operations]], [[legal]] and [[trading]] — each has its own priorities and private agendas. In peacetime all is well, each has her nibble on the biscuit, passes it on, and eventually the contract winds up signed, filed in a database somewhere and gratefully disregarded. No-one will need to look at it again, short of disaster.
 
When such a disaster arrives — heaven forfend — the document is exhumed, dusted off and passed to a new constituency who have never seen it before and have little grasp of the etiquette which is meant to accompany its construction:  litigators. These [[agent|agents]] have yet another [[purpose]] and agenda: ''to wreak havoc''. If given half a chance, they will deny utterly the tacit accommodations their commercial cousins made to each other short days ago when the aim of compliant, tax efficient consensus was mutual. 
 
Why anyone would commend her commercial soul to the hands of those who sit upon, or stand before, the King’s Bench is a question best not pondered.
 
ISDAs come before the courts one at a time. They are exotic specimens, rather like those ghost orchids: retrieved at personal cost from the depths of a sweaty tropical swamp and prone to cause hallucinations among people not ready for them. 
 
Litigation about them is therefore fraught: Rarely do those who argue these cases have any practical sense of what they are or how they work; those adjudicating them certainly don’t.<ref>{{Casenote|Marine Trade|Pioneer}} is a great example. The outcome — fortunately now overruled — is just patently absurd to anyone who has spent a week in the derivatives business.</ref>
 
And here {{icds}}’s vernacular plays into the hands of caprice and obstrepereity. That [[Squadsman|squaddish]] left-handedness ''cries out'' to be misunderstood. To ask a non-specialist parse a [[flawed asset]] clause,<ref>{{casenote|Metavante|Lehman}}</ref> an {{cddprov|Event Determination Date}}, or even the {{isdaprov|Notices}} provisions of an {{isdama}}<ref>{{casenote|Greenclose|National Westminster Bank plc}}</ref> is to pave the road to confounded disappointment.
 
There are some cases where the confusion goes deeper: the [[Jolly Contrarian|JC]] contends that [[credit default swap]]s are an intrinsically ambiguous way to address a straightforward problem, as such, are bound to create fear and loathing, and have routinely done this over the thirty years we have known them. 
 
It all adds to the JC’s mounting, great conspiracy theory that the whole the financial services industry, and perhaps even commerce itself, is really a perpetual motion machine devised by the various guilds of professional advisers for the sole purpose of [[Rent-seeking|extracting rent]] from it.  
{{sa}}
{{sa}}
*[[Plausible deniability]]
*[[Plausible deniability]]
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*[[Writing for a judge]]
*[[Writing for a judge]]
*[[Equity v credit derivatives showdown]]
*[[Equity v credit derivatives showdown]]
*[[Purpose]]
{{ref}}
{{ref}}

Latest revision as of 16:33, 28 August 2024

The Jolly Contrarian’s Glossary
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Litigationey
/ˌlɪtɪˈɡeɪʃᵊni/
(Also suish, squabblative (adj.)

Of a commercial issue, important, basically straightforward but, thanks to the sedimentary interventions of generations of professional advisers, rendered in language so opaque that no-one outside an inner cabal of specialists knows what is really going on. And that inner cabal sure ain’t talking.

“Litigationey” often describes commercial undertakings predicated on some kind of “plausible deniability”: contractual arrangements which rather wish they were, or looked like, something else.

For example, it is important to those who sell credit default swaps that they should not be mistaken for insurance contracts. Dealers in equity swaps wish them to be not considered stampable investments in shares. Those who truck in collateral like to take it subject to pledge but, at the same time, be free to give it away.

These fictions are loosely based on true stories — they are well-meant — but in their dramatic sweep they oblige practitioners to dissemble — to affect silly walks, use secret handshakes and invent elliptical ways of describing mundane things, all in the service of not uttering inconvenient realities.

Of course, the same circumlocution that foxes the taxman can bamboozle a judge.

Thus over time, workaday documents become squabblative because, while the practitioners who propagate them are well-drilled, fluent in these arcane language games and strongly incentivised to maintain the theatre, those who come to them cold — who often hail from the foreign climes of litigation department, bar or bench — are not.

We have remarked before about the differing functions a contract has during its life. Sales, operations, legal and trading — each has its own priorities and private agendas. In peacetime all is well, each has her nibble on the biscuit, passes it on, and eventually the contract winds up signed, filed in a database somewhere and gratefully disregarded. No-one will need to look at it again, short of disaster.

When such a disaster arrives — heaven forfend — the document is exhumed, dusted off and passed to a new constituency who have never seen it before and have little grasp of the etiquette which is meant to accompany its construction: litigators. These agents have yet another purpose and agenda: to wreak havoc. If given half a chance, they will deny utterly the tacit accommodations their commercial cousins made to each other short days ago when the aim of compliant, tax efficient consensus was mutual.

Why anyone would commend her commercial soul to the hands of those who sit upon, or stand before, the King’s Bench is a question best not pondered.

ISDAs come before the courts one at a time. They are exotic specimens, rather like those ghost orchids: retrieved at personal cost from the depths of a sweaty tropical swamp and prone to cause hallucinations among people not ready for them.

Litigation about them is therefore fraught: Rarely do those who argue these cases have any practical sense of what they are or how they work; those adjudicating them certainly don’t.[1]

And here ISDA’s crack drafting squad™’s vernacular plays into the hands of caprice and obstrepereity. That squaddish left-handedness cries out to be misunderstood. To ask a non-specialist parse a flawed asset clause,[2] an Event Determination Date, or even the Notices provisions of an ISDA Master Agreement[3] is to pave the road to confounded disappointment.

There are some cases where the confusion goes deeper: the JC contends that credit default swaps are an intrinsically ambiguous way to address a straightforward problem, as such, are bound to create fear and loathing, and have routinely done this over the thirty years we have known them.

It all adds to the JC’s mounting, great conspiracy theory that the whole the financial services industry, and perhaps even commerce itself, is really a perpetual motion machine devised by the various guilds of professional advisers for the sole purpose of extracting rent from it.

See also

References

  1. Marine Trade v Pioneer is a great example. The outcome — fortunately now overruled — is just patently absurd to anyone who has spent a week in the derivatives business.
  2. Metavante v Lehman
  3. Greenclose v National Westminster Bank plc