Subjunctive

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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 I were not.)

Similarly, “If I were subject to the EMIR clearing obligation —” it 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, to all intents the same, but in that curious way of non-fungible tokens, they are at the same time, somehow ontologically different: UK EMIR applies if you are in the UK, and EU EMIR applies if you are in the EU. You can’t be in both places at once though, of course, you can move.

But what of a UK counterparty treating with an EU one? Here we have a guaranteed conundrum: where does one become the other? When the golden threads of commerce stretch betwixt the knights of Albion and the gallic and teutonic hoardes to the south, what gust of wind, spiriting starlings high above the chalky cliffs, impels 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.

Furthermore the issuer covenants that, for so long as this Agreement is in full force and effect it will do nothing to breach the aforementioned representations regarding the status it has under EU EMIR and the status it would have under UK EMIR were it actually to be subject to UK EMIR, which it is, 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”

See also

• Passive aggressive
• Passive subjunctive perfect progressive