As amended from time to time

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A flatulent coda that goes without saying and is capable of as much embellishment as you have space mental capacity to apply to the task. Try, for example, “as amended, supplemented, updated and/or augmented from time to time”. You could perhaps toss in “orally or in writing”, and perhaps signify a time period with that wholly redundant elaboration “at any time”. so

“as amended, supplemented, updated and/or augmented orally or in writing at any time and from time to time”.

There’s also, always, scope for avoiding some doubt that wasn’t there in the first place.

As amended from time to time usually describes a contract, statute or regulation, will be buried in a definitions section, and does no real harm, but it will offend prose stylists who happen to be reading.[1]

But the retort, should the pedant with whom you are negotiating seek to so dirty your prose, is this: “It goes without saying that it means “as amended from time to time”. Well, what kind of freak would want to refer to a contract or statute as it exists at any time other than at the present moment?”

“An ERISA lawyer” is the usual response.

Now once upon a time, I thought this ERISA gag might go silently appreciated, at least among my contrarian co-conspirators in the financial derivatives world, but it seems not. So, at the risk of explaining the joke:

ERISA netting

Famously, ERISA plans tend to be set not to net, and for the unholiest of reasons, courtesy of the opinions committee of a leading U.S. law firm which prudence counsels it would be wiser not to name[2], but upon whom the whole market relies.

This firm cannot bring itself to rule out the risk that, when resolving an insolvent ERISA plan, a court would interpret ERISA as incorporating the US Bankruptcy Code as it stood in 1971 to the insolvency of the plan, rather than the Code as it stands at the time of insolvency. That’s a problem, because the “safe harbors” one relies upon for safely closing out swaps were only put into the Bankruptcy Code in the 1980s.[3] So, no netting against ERISA plans. Just in case.

Let me break that down:

Seriously. That’s it.

It is a frankly fantastical fear: Not only is it hard to know, at this remove, what the US Bankruptcy Code said in 1971, much less how it might have been interpreted in those days, but many of the institutions and concepts it relies on may since have been abolished or materially changed. Who knows? perhaps some old hippyish safe harbors from the 1960s that might apply to swaps. But then again, it’s not that likely — and it is just as harsh to blame US legislators for not enacting safe harbors for swaps before the 1980s — since there weren’t any swaps before 1981.

See also

References

  1. The likelihood of prose stylists reading capital markets trading agreements are, of course, vanishingly low. But still.
  2. Definitely not Cadwalader, obviously.
  3. Being WHEN SWAPS WERE INVENTED. See swap history.