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“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, when I said I ''were'', in reality I were ''not''.) | “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, when I said I ''were'', in reality I were ''not''.) | ||
Similarly, “If I ''were'' subject to the EMIR [[clearing obligation]] —” | Similarly, “If I ''were'' subject to the UK EMIR [[clearing obligation]] —” imagines a benighted world that could exist, but in fact, happily, does not. | ||
===In everyday usage=== | ===In everyday usage=== | ||
[[Brexit]], and our [[Magic circle law firm|learned friends]]’ nervous proclivities occasioned by it, give us the chance 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 — unshackled from its technical grammatical sense. | [[Brexit]], and our [[Magic circle law firm|learned friends]]’ nervous proclivities occasioned by it, give us the chance 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 — unshackled from its technical grammatical sense. | ||
How so? Well — at least until some scenery-munching little Englander politician 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, | How so? Well — at least until some scenery-munching little Englander politician 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, as near as dammit the same, but in that curious way of [[non-fungible token]]s<nowiki/>and off-the-run treasury bills, they are the same but, at the same time, [[ontologically]] ''different'': UK EMIR applies if you are in the UK, and EU EMIR applies if you are in the EU. Seeing as — ''je suis désolé'' — one can no longer be in both places at once, those of a juridical mien often feel the need to specify ''both''. | ||
After all, what of a UK counterparty treating with an EU one? Here we have a guaranteed conundrum: how does one regime cross-fade into the other? Does it, along any sensible dimension, matter? When the golden threads of commerce stretch betwixt the knights of Albion and the unwashed hordes of Gaul and Teuton ''—'' what gusts of wind, spiriting starlings high above the chalky cliffs, impel them between their petulantly immovable regulatory 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 [[Magic circle law firm|finest professional wordsmiths in the English language]]. They resort to such toe-curling conditionals as this:<ref>Okay okay, I might be exaggerating ''un peu''.</ref> | This issue has, presently, defeated the very [[Magic circle law firm|finest professional wordsmiths in the English language]]. They resort to such toe-curling conditionals as this:<ref>Okay okay, I might be exaggerating ''un peu''.</ref> | ||
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{{quote|“The Issuer represents that its status under EMIR is as a [[non-financial counterparty]] and its ''subjunctive'' status under UK EMIR is as a [[non-financial counterparty]].”}} | {{quote|“The Issuer represents that its status under EMIR is as a [[non-financial counterparty]] and its ''subjunctive'' status under UK EMIR is as a [[non-financial counterparty]].”}} | ||
Look: it probably won’t catch on. But at least we won’t die wondering. | Look: it probably won’t catch on. But at least we won’t die wondering. | ||
====LIBOR==== | |||
Perhaps a marginal note, but [[UK Finance|BBA]]’s guidance to LIBOR submitting banks came in the form of “Instructions to BBA LIBOR Contributor Banks”. The critical part of these ran as follows: | |||
{{Quote|“An individual BBA LIBOR Contributor Panel Bank will contribute the rate at which it could borrow funds, ''were'' it to do so by asking for and then accepting inter-bank offers in reasonable market size just prior to 1100.”}} | |||
In our [[Hayes and Palombo v R|casenote on the Tom Hayes appeal]], we advance the argument that perhaps the court did not put enough weight on the subjunctive mood in which the LIBOR instruction was expressed. | |||
{{sa}} | {{sa}} | ||
*[[Passive aggressive]] | *[[Passive aggressive]] | ||