Template:Misrepresentation by agent: Difference between revisions
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===[[Representations]] by [[agent]]s and [[investment manager]]s=== | ===[[Representations]] by [[agent]]s and [[investment manager]]s=== | ||
Where your client’s obligations under the {{isdama}} are stewarded by an [[agent]] — quite common for an [[investment manager]] trading on behalf of a [[fund]] [[ | Where your client’s obligations under the {{isdama}} are stewarded by an [[agent]] — quite common for an [[investment manager]] trading on behalf of a [[fund]] — a [[broker]] might think about having the [[agent]] represent, on its own behalf, about its role as [[agent]]. It might ask the [[agent]] to do this in the ISDA. The sound of an [[asset manager]] confirming its ongoing authority to bind its [[principal]] gladdens a broker’s heart. A full-throated assertion of its own regulatory authorisation; its continued [[good standing]] with the companies office; the continued involvement of its [[key person]]s in making investment decisions — each is sure to put a jaunt in a [[broker]]’s stride. Its [[Mediocre lawyer|Imaginative counsel]] will doubtless dream up others. | ||
But tarry a while. Firstly, your [[investment manager]] will sign as [[agent]], for the [[client]], not on its own behalf. For many this will be an article of profound faith: they will be at some pains, which they will willingly inflict on you, to avoid the barest hint they are speaking for themselves. “When an [[agent]], ''as'' [[agent]] opens its mouth,” they will tell you, “it becomes its [[principal]] for all purposes that interest the law.” | But tarry a while. Firstly, your [[investment manager]] will sign as [[agent]], for the [[client]], not on its own behalf. For many this will be an article of profound faith: they will be at some pains, which they will willingly inflict on you, to avoid the barest hint they are speaking for themselves. “When an [[agent]], ''as'' [[agent]] opens its mouth,” they will tell you, “it ''becomes'' its [[principal]] for all purposes that interest the law.” | ||
And so it does. As far as the [[Courts of Chancery|courts of chancery]] are concerned, to be an [[agent]] is to be wholly [[transubstantiation|transubstantiated]] ''into the person of | And so it does. As far as the [[Courts of Chancery|courts of chancery]] are concerned, to be an [[agent]] is to be wholly [[transubstantiation|transubstantiated]] ''into the person of one’s [[principal]]''. Transmogrified. It is, for all forensic intents to disappear; one’s ghostly outline may still be there, but it is a chimera: one exists only to be the earthly representation of another. | ||
Which cast a pall over the representations you are being asked to make. | Which cast a pall over the representations you are being asked to make. | ||
Take the one that “the [[principal]] has duly authorised the [[agent]] to act on its behalf”. For the principal to say that, through the person of the very one whose agency is in question, is some kind of [[Möbius loop]]. The very comfort you might draw from what is being said is taken away by the person who is saying it. | |||
Even if the fact of the agency is in no doubt, the statements as to the agent’s character are off base. The agent is speaking for the principal, remember. the [[principal]] is, most likely, ''not'' authorised to provide discretionary investment advice by the FCA. He might retort, through the person of his agent: <br> | |||
:'''Agent (''as'' [[agent]])''': Why would I be authorised by the FCA? I am not advising anyone. In fact, my [[investment manager]] is advising ''me''. Why don’t you ask ''{{sex|her}}''? <br> | |||
:'''Broker''' (''rubbing eyes''): But I ''am'' asking {{sex|her}}. I mean ''you''. | |||
:'''Agent (''as'' [[agent]])''': Who? | |||
:'''Broker''': You! | |||
:'''Agent (''as'' [[agent]])''': Ah, but I am not me, for now, I am my client. | |||
:'''Broker''': But you are here, aren’t you? Can’t I ask you? Can you just be yourself for a moment? | |||
:'''Agent (''as'' [[agent]])''': What? Here? In this ISDA? You must be joking. |