Subjunctive: Difference between revisions

“If I ''were'' to have been writing an article about [[subjunctive]]s [''i.e., but I am not''], what would you think about that?” (This is confusing, of course, because I ''am'' writing an article about subjunctives. But to make sense of this example, imagine I ''were'' not.)

Similarly, “If I ''were'' subject to the EMIR clearing obligation —” it imagines a benighted world that could exist, but in fact, happily, does not.

[[Brexit]], and our [[Magic circle law firm|learned friends]]’ nervous proclivities give us the opportunity to use this word — with its sibilants, nasal plosives and fricatives it is quite fun to say, so it’s a shame we don’t get it out more often — in the wild, unshackled from its technical grammatical way.  

How so? Well — at least until some scenery-munching tory rips up the European rulebook in earnest — we now have ''European'' [[MiFID]], [[EMIR]], and so on, and ''UK'' MiFID, EMIR and so on. In point of fact they are — at the time of writing — the same, but in the curious way of non-fungible tokens, at the same time, somehow ''different'': UK EMIR applies if you are in the UK, and EU EMIR applies if you are in the EU.

But what of a UK counterparty treating with an EU one, we have a guaranteed conundrum: where does one become the other? When the golden threads of commerce stretch betwixt them, what gust of wind, spiriting starlings high above the chalky cliffs, impels them between their petulantly immovable regimes? How does one neatly describe a regulation that, in practice, applies to both but, in law, applies to only one at a time, ''seriatim''?

This issue has, presently, defeated the very finest professional wordsmiths in the English language. They resort to such toe-curling conditionals as this:

{{quote|''The issuer represents that it is:

:''(i) an entity established within the European Union and accordingly shall [[from time to time]] [[for the time being]] be [[deemed]] to be, and therefore shall, for such aforementioned times be, a [[non-financial counterparty]] ([[for the purposes of]] and as such term is defined in EU [[EMIR]]) and  

:''(ii) an entity established outside the United Kingdom and therefore not subject to UK [[EMIR]] but that, [[to the best of its knowledge and belief]], having given due and proper consideration to its status, would [[constitute]] a [[non-financial counterparty]] (as such term is defined in UK [[EMIR]]) ''were'' it to be established in the United Kingdom, which it is not, and were UK [[EMIR]] to apply to it, which it does, [[from time to time]] and [[for the time being]], not.  

''Furthermore the issuer covenants that, for so long as this Agreement is in [[full force and effect]] it will do nothing to breach the aforementioned [[representation]]s regarding the status it has under EU [[EMIR]] and the status it would have under UK [[EMIR]] were it actually to be subject to UK [[EMIR]], which it is, for the time being, not.}}

If you can summon the mental fortitude it is always worth fighting this kind of drafting, especially since it presents an opportunity to use the word “subjunctive”