The human touch

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For some time the JC has pondered whether to make an honest, sober resource out of the various master agreement anatomies on the JC. All this time spent lampooning ISDA’s crack drafting squad™ and the perverse, abstruse and obtuse behaviour of those haggling over master agreements just doesn’t quite strike the right corporate tone.

Should we set up a parallel site, a sort of “sober me” to reconstruct the world in pastel tones and Monet prints: to re-work the corpus as straight legal commentary. A “sombre contrarian”?

If only, the JC would settle down, grow up, stop making cheap cracks at American lawyers and get on with explaining the details of these documents, this could a really valuable resource, and corporate legal departments might embrace it.

Oh, and finish it for God’s sake.

Despite being for a while being quite swayed by these arguments, we are not going to do that, for the following reasons:

• It would be dull. For me. Firstly and most importantly it takes all the fun out of it. When the JC started this resource a decade or so ago, it was designed as (and it remains) a private notebook for jotting down and remembering how how difficult bits of complicated contracts work. To be bothered to continue doing that, you have to enjoy doing it. It is, readers, quite hard to enjoy the squad’s Indemnifiable Taxes provision for its sheer intellectual clarity and literary elegance. But it is great fun making fun of it. It as a quintuple negative for crying out loud. Every lawyer is a frustrated writer, and this is a channel and an outlet.
• The snippy stuff is important: Here’s the thing: the technical analysis is important, but in the real world it is just as important to understand logic doesn’t always matter. There are darker, deeper forces propelling commercial negotiation: unseen social forces. This is what we are getting at. The person with whom you are negotiating may not understand the material, and even if she does, may not be allowed to make logical concessions, because there will be some other idiot further up the chain who doesn’t understand the material, or who has been misconstrued, and no-one lower down the chain has the time, energy, insight, or political capital to be bothered correcting the wrong impression. People may have pride in the form: large organisations may prefer portfolio standardisation, over infinite precision in legal terms. Client-side negotiators may be driven not by abstract commercial concern, but the desire to look expert, to make a difference, to influence the product, and justify their fees. Do not underestimate how much of commercial practice is driven by a fearful path of least resistance.