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{{a|g|{{image|leagle beagle|jpg|Now, what is this “[[Aïessdiyé]]” of which you speak?}} }}{{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}}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. And that inner cabal sure ain’t talking.  


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, use secret handshakes and invent elliptical ways of describing mundane things, all in the service of ''not uttering inconvenient realities''.
“Litigationey” often describes commercial undertakings predicated on some kind of “[[plausible deniability]]”; which rather they were something else. For example it is important to those who sell [[credit default swap]]s that they should not count as [[insurance contract]]s, or that [[equity swap]]s aren’t considered to be [[stamp duty|stampable]] investments in [[shares]]. These fictions are perhaps loosely based on a true story, but dramatic imperatives oblige practitioners to adopt 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 placates a taxman can bamboozle a judge.


They become [[squabblative]] because, while the [[legal eagle|practitioners]] who propagate them are well drilled, fluent and strongly incentivised to maintain their theatre, their counterparts in the [[Litigation|litigation department]], at the [[King’s Counsel|bar]] and [[King’s Bench Division|on the bench]] are not.
These documents become [[squabblative]] because, while the [[legal eagle|practitioners]] who propagate them are well-drilled, fluent and strongly incentivised to maintain their theatre, those who come to regard them in the [[Litigation|litigation department]], at the [[King’s Counsel|bar]] and [[King’s Bench Division|on the bench]] are not.


We have remarked [[Purpose|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.
We have remarked [[Purpose|before]] about the differing [[purpose|functions]] a [[contract]] has during its lifecycle, for sales, operations and trading departments. When a commercial accord reaches cataclysm, the parties find a different purpose again: to deny utterly the tacit accommodations they made each other in fair times when the goal of reaching compliant and tax efficient consensus was mutual.  


But litigation advisers and those who adjudicate disputes don’t have even that much incentive, and none of the practical experience.  
This is the great disadvantage of hindsight: how we are goaded to forget. But litigation advisers don’t have even that much incentive, and none of the practical experience.


There are $60 trillions of derivative notional outstanding at any time: documenting and managing them day-to-day keeps a [[military-industrial complex]] of worker-bees gainfully employed from Nashville to Manila.
ISDAs come before the courts one at a time. They are exotic specimens, rather like those ghost orchids retrieved from the sweaty depths of a tropical swamp that are prone to cause hallucinations. Litigation about them is fraught: it is usually obvious that no-one conducting arguments has much of a sense of what they are or how they work; those adjudicating 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 spend a week in the derivatives business.</ref>


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 that are prone to cause hallucinations. It is usually obvious that no-one conducting arguments about them has much of a sense of what they are for or how they work, and those adjudicating 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 spend 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. Just try asking 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>  


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>
There are some cases where the confusion goes deeper: the [[Jolly Contrarian|JC]] contend that [[credit default swap]]s are an intrinsically ambiguous way to address a straightforward problem and, as such, are bound to create fear and loathing.   
 
There are some cases where the confusion goes deeper: the [[Jolly Contrarian|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.   


But this 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.  
But this 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.  
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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}}

Revision as of 13:58, 23 May 2023

The Jolly Contrarian’s Glossary
The snippy guide to financial services lingo.™
Now, what is this “Aïessdiyé” of which you speak?
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Litigationey
/ˌlɪtɪˈɡeɪʃᵊni/
(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 inner cabal 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”; which rather they were something else. For example it is important to those who sell credit default swaps that they should not count as insurance contracts, or that equity swaps aren’t considered to be stampable investments in shares. These fictions are perhaps loosely based on a true story, but dramatic imperatives oblige practitioners to adopt 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 placates a taxman can bamboozle a judge.

These documents become squabblative because, while the practitioners who propagate them are well-drilled, fluent and strongly incentivised to maintain their theatre, those who come to regard them in the litigation department, at the bar and on the bench are not.

We have remarked before about the differing functions a contract has during its lifecycle, for sales, operations and trading departments. When a commercial accord reaches cataclysm, the parties find a different purpose again: to deny utterly the tacit accommodations they made each other in fair times when the goal of reaching compliant and tax efficient consensus was mutual.

This is the great disadvantage of hindsight: how we are goaded to forget. But litigation advisers don’t have even that much incentive, and none of the practical experience.

ISDAs come before the courts one at a time. They are exotic specimens, rather like those ghost orchids retrieved from the sweaty depths of a tropical swamp that are prone to cause hallucinations. Litigation about them is fraught: it is usually obvious that no-one conducting arguments has much of a sense of what they are or how they work; those adjudicating 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. Just try asking a non-specialist parse a flawed asset clause,[2] an Event Determination Date, or even the Notices provisions of an ISDA Master Agreement.[3]

There are some cases where the confusion goes deeper: the JC contend that credit default swaps are an intrinsically ambiguous way to address a straightforward problem and, as such, are bound to create fear and loathing.

But this 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 spend a week in the derivatives business.
  2. ↑ Metavante v Lehman
  3. ↑ Greenclose v National Westminster Bank plc
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