Subjunctive

Towards more picturesque speech™ →Go uptown “The kind of life I would lead were I not the man I am, and have led the life I have in fact led, but were a man I am not, and led a life I did not” (von Sachsen-Rampton, 1847) SEC guidance on plain EnglishIndex: Click ᐅ to expand: Plain English Drafting Metaphor Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Subjunctive
/səbˈdʒʌŋ(k)tɪv/ (adj.)

An adjective denoting a mood expressing what one imagines, wishes or believes conceptually possible, but is not in fact so. In grammar, the corresponding verbal mode. This uses were instead of was.

“If I were to have been writing an article about subjunctives [i.e., but I am not], what would you think about that?” (This is confusing, of course, because I am writing an article about subjunctives. But to make sense of this example, imagine, when I said I were, in reality I were not.)

Similarly, “If I were subject to the UK EMIR clearing obligation —” imagines a benighted world that could exist, but in fact, happily, does not.

In everyday usage

Brexit, and our learned friends’ nervous proclivities occasioned by it, give us the chance to use this word — with its sibilants, nasal plosives and fricatives it is quite fun to say, so it’s a shame we don’t get it out more often — unshackled from its technical grammatical sense.

How so? Well — at least until some scenery-munching little Englander politician rips up the European rulebook in earnest — we now have European MiFID, EMIR, and so on, and UK MiFID, EMIR and so on. In point of fact they are, at the time of writing, as near as dammit the same, but in that curious way of non-fungible tokensand off-the-run treasury bills, they are the same but, at the same time, ontologically different: UK EMIR applies if you are in the UK, and EU EMIR applies if you are in the EU. Seeing as — je suis désolé — one can no longer be in both places at once, those of a juridical mien often feel the need to specify both.

After all, what of a UK counterparty treating with an EU one? Here we have a guaranteed conundrum: how does one regime cross-fade into the other? Does it, along any sensible dimension, matter? When the golden threads of commerce stretch betwixt the knights of Albion and the unwashed hordes of Gaul and Teuton — what gusts of wind, spiriting starlings high above the chalky cliffs, impel them between their petulantly immovable regulatory regimes? How does one neatly describe a regulation that, in practice, applies to both but, in law, applies to only one at a time, seriatim?

This issue has, presently, defeated the very finest professional wordsmiths in the English language. They resort to such toe-curling conditionals as this:

“The issuer represents that it is:

(i) an entity established within the European Union and accordingly shall from time to time for the time being be deemed to be, and therefore shall, for such aforementioned times be, a non-financial counterparty (for the purposes of and as such term is defined in EU EMIR) and

(ii) an entity established outside the United Kingdom and therefore not subject to UK EMIR but that, to the best of its knowledge and belief, having given due and proper consideration to its status, would constitute a non-financial counterparty (as such term is defined in UK EMIR) were it to be established in the United Kingdom, which it is not, and were UK EMIR to apply to it, which it does, from time to time and for the time being, not.”

If you can summon the mental fortitude it is always worth fighting this kind of drafting, especially since it presents an opportunity to use the word “subjunctive”

“The Issuer represents that its status under EMIR is as a non-financial counterparty and its subjunctive status under UK EMIR is as a non-financial counterparty.”

Look: it probably won’t catch on. But at least we won’t die wondering.

LIBOR

Perhaps a marginal note, but BBA’s guidance to LIBOR submitting banks came in the form of “Instructions to BBA LIBOR Contributor Banks”. The critical part of these ran as follows:

“An individual BBA LIBOR Contributor Panel Bank will contribute the rate at which it could borrow funds, were it to do so by asking for and then accepting inter-bank offers in reasonable market size just prior to 1100.”

In our casenote on the Tom Hayes appeal, we advance the argument that perhaps the court did not put enough weight on the subjunctive mood in which the LIBOR instruction was expressed.

See also

• Passive aggressive
• Passive subjunctive perfect progressive