Don’t take a piece of paper to a knife-fight
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Negotiation Anatomy™
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One of the JC’s maxims. If you have a real business risk, then you need a real business control for it. Not a piece of paper that you signed in 2007 and then stuck in a drawer.
To be sure, you can support your practical operational controls — really make them sing — with a stout legal contract, but if you don’t have any practical operational controls, or if the fellow who is supposed to be monitoring them is asleep at the switch, then the fact that, back in the day, credit had your docs unit engage in six months of hand-to-hand combat with your client to shove a NAV trigger in their ISDA is not going to get you out of a jam if you find out, some years later, that said client blew through the NAV limits you carefully confected, but nine months ago.
Sticking anything in a document that no-one will ever read again, and most people in your organisation wouldn’t understand even if they did, is a really bad way of hedging against a real risk.
Don’t go to knife fights
Time for one of the JC’s patronising little parables.
- A fellow was out on his bicycle, thundering down Cranley Gardens, enjoying the rush of wind through his thinning thatch and generally revelling in uncommon gratitude for the affordances — usually so depressing, for a man his age — of gravity. Cranley Gardens is steep, has a dogleg and a few intersecting crossroads that come at it from oblique angles. But straight-through traffic, such as our fellow, has the right of way — of that there is little doubt.
Now imagine that, notwithstanding the plain legal position, a jalopy careened from one of those junctions, without looking, and collected our brave hero. How much comfort will it be, as he bodily tests out that intruder’s crumple zone, that he was in the right?
We would respectfully submit, none at all. So, he takes a measure of caution, constantly scans the intersections, moderates his speed, and stands ready to slam on the brakes should some damn fool pull out in front of him.
This — a simple and, yes, fallible heuristic — is your best means of dynamic risk management. But it doesn’t live in a legal contract. It lives in how you behave: how carefully you watch your counterparty, how closely you monitor the market; the experience and expertise of your front-line trading and risk people. Only they can cope with the mortal risks of a complex, non-linear system that is beyond the institution’s control.
It is to state no more than the bleeding obvious to surmise that the satisfaction of knowing you are in the right, and that the other chap was utterly, legally, to blame, without question of mitigation or even contributory negligence, runs a distant second to the inconvenience of the six months you’ll spend in traction recovering if you are lucky and the years of painful therapy you’ll need to walk again.
It doesn’t matter that it wasn’t your fault.
Assuming all will be well and you can sort it all out later as long as you have “strong protections” in your paperwork — behaviour only a young lad, still convinced of his immortality, would entertain on a bicycle — that attitude, more than any other, informs conventional financial markets risk management. Your Additional Termination Events? They are your satisfaction of knowing that, if you need it, your hospital bed is fully paid for — as long as the driver has insurance...