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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, secret handshakes and elliptical ways of describing ordinary things, all in the service of not uttering inconvenient realities. | 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, secret handshakes and elliptical ways of describing ordinary things, all in the service of not uttering inconvenient realities. | ||
They become squabblative because while the [[legal eagle|practitioners]] who propagate these arrangements are well drilled, fluent and strongly incentivised to maintain this theatre, their counterparts in the litigation department, at the bar and on the bench are not. | They become [[squabblative]] because while the [[legal eagle|practitioners]] who propagate these arrangements are well drilled, fluent and strongly incentivised to maintain this theatre, their counterparts in the litigation department, at the bar and on the bench are not. | ||
We have remarked 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 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. | ||
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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. It is usually obvious that no-one conducting the argument has much of a sense of what they are for or how they work, and those adjudicating certainly don’t. | 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. It is usually obvious that no-one conducting the argument has much of a sense of what they are for or how they work, and those adjudicating certainly don’t. | ||
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}} | 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 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. | There are some cases where the confusion goes deeper: the 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. | ||