Template:Transaction injunctions
There is at least a colour of an argument that the rights protected by a confidentiality undertaking are ineffable enough to be beyond the remedial powers of contractual damages. That argument is harder to make out for amounts due under a market transaction — a swap, option, forward, stock loan or repo. That won’t stop fastidious legal eagles trying. Even ones from reputable organisations.
Here is why you must resist this foolish talk.
When we trade financial products, we check our emotional lives at the door. The moment we step onto that trading floor our personal sensibilities are not at stake; we leave our peace-time selves as spouses, parents, Rotarians, and members of the church choir in the cloak-room. We become, in the eyes of the market, self-interested merchants in the most mercenary sense Adam Smith had in mind; profit is our only motive, and the sole propeller of the invisible guiding hand. We put aside our adorable proclivities and idiosyncrasies and become homo economici.
Should we cause or experience commercial upset when in this fugue state, we assess it along a single axis: pounds, shillings and pence.
Take the failure to meet a re-delivery obligation under a stock loan. The security in question has an observable price, by which you can track your loss in not having it delivered on time. You may incur financing costs while you wait; you may be bought in by your own counterparties further down the line: all these are reasonably foreseeable consequences of non-performance. so foreseeable, in fact, that they are enshrined in the very terms of the 2010 GMSLA. There is no need to go to the court for damages, let alone equitable relief: you may buy in your self, and pass the costs to your counterparty. The contract says so in black and white. but more to the point, a counterparty who has failed — assuming it has not simply forgotten — will have failed for a simple reason. It hasn’t got the security in question, and it can’t locate it in the market. These things happen from time to time. So what good is an injunction compelling a poor fellow to perform an obligation to deliver a security she plainly does not have?
Not much, in this fellow’s humble opinion.