Ditch proximity

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Negotiation Anatomy

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Ditch tolerance.png

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The distance between a negotiator and the ditch she has just sworn she will, if need be, die in. To be contrasted — because there is an inversely proportional relationship between them — with her ditch tolerance, being the sorts of thing she will be prepared to die in that ditch for.

To put it briefly, the further away the ditch, the more resolutely one will declare one’s intention to die in it.

The JC is working on a theory that — no doubt, among other things — this may explain why the output of industry-crafted standard forms is so hideous. Because they are necessarily negotiated in the abstract, there are any number of hypothetical ditches — for this sort of thing, the legal eagle has an unrivalled imagination — but since there is no actual transaction in the offing; it is a purely conceptual project — all those hypothetical ditches are infinitely far away, none poses any risk of ever coming closer, so every member of the drafting committee will therefore be prepared to die in every one.

Hence ISDA’s crack drafting squad™ — not to pick on them, but they are an awfully good example — has a ditch tolerance of nil and a ditch proximity of infinity.

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