Litigationey: Difference between revisions

{{a|g|{{image|leagle beagle|jpg|Now, what is this “[[Aïessdiyé]]” of which you speak?}} }}{{dpn|/ˌlɪtɪˈɡeɪʃᵊni/<br> (Also [[suish]], [[squabblative]]|adj}}Of a commercial issue, important, basically straightforward, but thanks to the intervention of [[professional advisers]], rendered in language so opaque that no-one outside an [[Clavam Hominum Senum Pallidorum|inner cabal]] knows what is really going on.  

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, use secret handshakes and invent elliptical ways of describing mundane things, all in the service of ''not uttering inconvenient realities''.

They become [[squabblative]] because, while the [[legal eagle|practitioners]] who propagate them are well drilled, fluent and strongly incentivised to maintain their theatre, their counterparts in the [[Litigation|litigation department]], at the [[King’s Counsel|bar]] and [[King’s Bench Division|on the bench]] are not.

We have remarked [[Purpose|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.

But litigation advisers and those who adjudicate disputes don’t have even that much incentive, and none of the practical experience.  

There are $60 trillions of derivative notional outstanding at any time: documenting and managing them day-to-day keeps a [[military-industrial complex]] of worker-bees gainfully employed from Nashville to Manila.

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 that are prone to cause hallucinations. It is usually obvious that no-one conducting arguments about them has much of a sense of what they are for or how they work, and those adjudicating certainly don’t.<ref>{{Casenote|Marine Trade|Pioneer}} is a great example. The outcome — fortunately now overruled — is just patently absurd to anyone who has spend a week in the derivatives business.</ref>  

 

There are some cases where the confusion goes deeper: the [[Jolly Contrarian|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.