Look, I tried
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From our “understanding the implications of behavioural science for contract negotiation” series — it is a short series at present — comes this oft-overlooked motivation for your counterparty’s apparently absurd negotiation demands: not out of any wish or intention to enforce them, per se, but to persuade its own, absurdly demanding clients, that it tried.
In our crazy, inter-connected world, much financial markets activity comprises of fattened intermediaries sitting cross-legged in a circle, passing around a parcel belonging, at some remove, to the ultimate client. As it passes by, each one takes a nibble at it.
Now each of these intermediaries need to agree the terms on which they will hand the parcel on. Their main concern, of course, is to hold on to it for long enough to justify a good old chomp before they pass it on, but each needs also to prepare for the consequences of the parcel, when it comes time for it to be returned to its owner, looking a bit more careworn and ragged than it was when the intermediary first got it. The parcel might not, eventually, come back at all. As the parcel completes its return trajectory around the circle, each intermediary, having had a last loving nibble, must explain the state of the parcel to the person to whom she gives it.
Now the ultimate client might be a credulous old fool with a chip shop by the lighthouse in Dungeness, but the Russian doll of agents through whose intestinal systems his pitiful savings have passed are not. Each has its own team of assiduous legal eagles who will demand ever higher standards of prudence from their onward counterparties — one has to do something to earn one’s commission, after all. And so commences an arms race of covenants, indemnities, representations and warranties. It will get to a point where the legal eagle handling the incoming blanches — the request exceeds all policies and internal procedures. It cannot be done:
- “I ... I ... we cannot agree to monitor every individual employee’s personal investments to comply with your environmental, social and corporate governance policy,” she will wail. “But it is absurd!”
- “But you must,” will come the reply. “For it is in our charter. We have committed this to our clients. This is a show-stopper.”
Deep down, everyone will know that this fellow has not the faintest intention of ever asking about your employees’ personal investments. Once the contract is safely inked and put away, no one will give it another thought. Why would it care? and what, even if it did, could it honestly expect to do about it? What, if it transpires your employees invest in exclusively in tobacco, arms and narcotics financing, is its loss?
None. But that is not the point. What it wants is plausible deniability, should any of its own clients ask what it is doing to ensure its counterparties are all feckless virtue-signallers. It can say, “you see? It is in the contract!”
See also
- The mythical ultimate client
- Software as a service
- Disintermediation