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In which the {{isdama}} deals with the pointless topic of [[counterparts]], and the workaday one of {{isdaprov|Confirmation}}s. | In which the {{isdama}} deals with the pointless topic of [[counterparts]], and the workaday one of {{isdaprov|Confirmation}}s. | ||
===Section {{{{{1}}}|9(e)(i)}} [[Counterpart]]s=== | =====Section {{{{{1}}}|9(e)(i)}} [[Counterpart]]s===== | ||
There is an impassioned essay about the idiocy of [[counterparts]] clauses elsewhere.<ref>In the [[counterparts]] article, as a matter of fact.</ref> For now, just know this: | There is an impassioned essay about the idiocy of [[counterparts]] clauses elsewhere.<ref>In the [[counterparts]] article, as a matter of fact.</ref> For now, just know this: | ||
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Sometimes it is important that more than one copy of a document is recognised as an “original” — for [[tax]] purposes, for example, or where “the agreement” must be formally lodged with a land registry. But these cases, involving the conveyance of real estate, are rare — non-existent, indeed, when the field you are ploughing overflows with flowering {{isdama}}s, [[confidentiality agreement]]s and so on. If yours does — and if you are still reading, I can only assume it does, or you are otherwise at some kind of low psychological ebb — a “[[counterparts]]” clause is as useful to you as ''a chocolate tea-pot''. | Sometimes it is important that more than one copy of a document is recognised as an “original” — for [[tax]] purposes, for example, or where “the agreement” must be formally lodged with a land registry. But these cases, involving the conveyance of real estate, are rare — non-existent, indeed, when the field you are ploughing overflows with flowering {{isdama}}s, [[confidentiality agreement]]s and so on. If yours does — and if you are still reading, I can only assume it does, or you are otherwise at some kind of low psychological ebb — a “[[counterparts]]” clause is as useful to you as ''a chocolate tea-pot''. | ||
Indeed: even for land lawyers, all it does is sort out which, of a scrum of identical documents signed by different people, is the “original”. This is doubtless important if you are registering leases in land registries, or whatever other grim minutiae land lawyers care about — we banking lawyers have our own grim minutiae to obsess about, so you should forgive us for not giving a tinker’s cuss about yours, ''die Landadler''. | Indeed: even for land lawyers, all it does is sort out which, of a scrum of identical documents signed by different people, is the “original”. This is doubtless important if you are registering leases in land registries, or whatever other grim minutiae land lawyers care about — we banking lawyers have our own grim minutiae to obsess about, so you should forgive us for not giving a tinker’s cuss about yours, ''die Landadler''. | ||
ANYWAY — if your area of legal speciality ''doesn’t'' care which of your contracts is the “original” — and seeing as, [[Q.E.D.]], they’re identical, why should it? — a counterparts clause is ''a waste of trees''. If the law decrees everyone has to sign the same physical bit of paper (and no legal proposition to our knowledge ''does'', but let’s just say), a clause ''on'' that bit of paper saying that they ''don’t'' have to, is hardly going to help. | ANYWAY — if your area of legal speciality ''doesn’t'' care which of your contracts is the “original” — and seeing as, [[Q.E.D.]], they’re identical, why should it? — a counterparts clause is ''a waste of trees''. If the law decrees everyone has to sign the same physical bit of paper (and no legal proposition to our knowledge ''does'', but let’s just say), a clause ''on'' that bit of paper saying that they ''don’t'' have to, is hardly going to help. | ||
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But was there ever a logical ''cul-de-sac'' so neat, so compelling, that it stopped a [[legal eagle]] insisting on stating it anyway, on pain of cratering the trade? There are little eaglets to feed, my friends. | But was there ever a logical ''cul-de-sac'' so neat, so compelling, that it stopped a [[legal eagle]] insisting on stating it anyway, on pain of cratering the trade? There are little eaglets to feed, my friends. | ||
===Section {{{{{1}}}|9(e)(ii)}} {{{{{1}}}|Confirmation}}s=== | =====Section {{{{{1}}}|9(e)(ii)}} {{{{{1}}}|Confirmation}}s===== | ||
==== | ======“Trade” versus “confirmation”: celebrity death-match====== | ||
If a [[Trading|trader]] agrees one thing, and the [[confirmation]] the parties subsequently sign says another, which gives? A 15 second dealing-floor exchange on a crackly taped line, or the carefully-wrought ten page, counterpart-executed legal epistle that follows it? | |||
====Dare we mention ... ''[[email]]''?==== | |||
The ''original oral trade prevails''. As to why — we address that in the premium section. | |||
======Dare we mention ... ''[[email]]''?====== | |||
Note also the addition of [[e-mail]] as a means of communication to the {{2002ma}} ([[email]] not really having been a “thing” in 1992). This caused all kinds of [[fear and loathing]] among the judiciary, when asked about it, as can be seen in the frightful case of {{casenote|Greenclose|National Westminster Bank plc}}.Oh dear, oh dear, oh dear. | Note also the addition of [[e-mail]] as a means of communication to the {{2002ma}} ([[email]] not really having been a “thing” in 1992). This caused all kinds of [[fear and loathing]] among the judiciary, when asked about it, as can be seen in the frightful case of {{casenote|Greenclose|National Westminster Bank plc}}.Oh dear, oh dear, oh dear. | ||
==== [[Timely confirmation]] regulations and deemed consent==== | ====== [[Timely confirmation]] regulations and deemed consent====== | ||
Both {{t|EMIR}} and [[Dodd Frank]] have [[timely confirmation]] requirements obliging parties to have confirmed their scratchy tape recordings within a short period (around 3 days). This fell out of a huge backlog in confirming structured [[credit derivatives]] trades following the [[Lehman]] collapse. | Both {{t|EMIR}} and [[Dodd Frank]] have [[timely confirmation]] requirements obliging parties to have confirmed their scratchy tape recordings within a short period (around 3 days). This fell out of a huge backlog in confirming structured [[credit derivatives]] trades following the [[Lehman]] collapse. | ||
====Roger Moore indahouse ==== | ======Roger Moore indahouse ====== | ||
Lastly, a rare opportunity to praise those maestros of legal word-wrangelry, {{icds}}. In Section {{{{{1}}}|9(e)(ii)}}, they contemplate that one might agree a {{{{{1}}}|Transaction}} “[[orally or otherwise]]”. This is a smidgen wider than the usual [[legal eagle]] formulation of [[orally or in writing]]. It shows that while the swaps whizzes were conservative about how to [[close out]] a {{{{{1}}}|Transaction}}, when putting one ''on'' you are constrained only by the bounds of your imagination and the limits of interpersonal ambiguity: not just [[In writing|written words]], nor even [[Oral|oral ones]], but the whole panoply of possible human communications: semaphore, naval flags, Morse code, waggled eyebrows, embarrassed smiles and any other kinds of physical gesture. | Lastly, a rare opportunity to praise those maestros of legal word-wrangelry, {{icds}}. In Section {{{{{1}}}|9(e)(ii)}}, they contemplate that one might agree a {{{{{1}}}|Transaction}} “[[orally or otherwise]]”. This is a smidgen wider than the usual [[legal eagle]] formulation of [[orally or in writing]]. It shows that while the swaps whizzes were conservative about how to [[close out]] a {{{{{1}}}|Transaction}}, when putting one ''on'' you are constrained only by the bounds of your imagination and the limits of interpersonal ambiguity: not just [[In writing|written words]], nor even [[Oral|oral ones]], but the whole panoply of possible human communications: semaphore, naval flags, Morse code, waggled eyebrows, embarrassed smiles and any other kinds of physical gesture. | ||