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4 The Application of New York Law to Contracts »

David W. Rivkin, Mark W. Friedman, William H. Taft
From: International Commercial Arbitration in New York (2nd Edition)
Edited By: James H. Carter, John Fellas
This chapter provides a brief overview of some basic principles of New York law that are relevant to the interpretation and enforcement of contracts. New York contract law is derived from common law, statutes, and administrative sources. The chapter first addresses New York choice-of-law rules. Next, it turns to the elements of a contract and New York laws and presumptions regarding contract formation. It then examines the elements and consequences of a breach of contract, before turning to a number of claims ancillary to a contractual breach. Finally, the chapter concludes with some special issues that may arise under New York contract law.

5 Financial Products as Investments under Bilateral Investment Treaties and Other Multilateral Instruments with Consents to Arbitration »

David W Rivkin, Mark W Friedman
From: International Financial Disputes: Arbitration and Mediation
Edited By: Jeffrey Golden, Carolyn Lamm
This chapter discusses the status of financial products as qualifying investments under bilateral and multilateral treaties that contain protections for foreign investment, including the signatory States' consent to submit investor-State disputes to international arbitration. It first describes how an investor and a State consent to proceed to arbitration under such a treaty. Second, it discusses how a qualifying investment is generally defined for purposes of investor-State treaty arbitration. Third, it addresses significant treaty and case law developments relating specifically to financial products — such as loan agreements, sovereign bonds, and derivatives — as qualifying investments. These developments shed light on the key questions of whether an investment exists; whether the investment was made in the territory of the host State; and whether the investment was made by the claimant investor. The chapter concludes with comments on the trend favouring inclusion of financial instruments within the definition of investment.