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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.

Part III Public International Law Disputes, Climate Disputes, and Sustainable Development in the Energy Sector, 18 Climate Disputes and Sustainable Development in the Energy Sector: Future Directives »

David W Rivkin, Catherine Amirfar
From: International Arbitration in the Energy Sector
Edited By: Maxi Scherer
This chapter addresses both climate change mitigation and climate change adaptation. It makes ‘the case for international arbitration’, analyzing in particular current dispute resolution structures on carbon trading and the specific set of arbitration rules developed by the Permanent Court of Arbitration (PCA) to resolve environmental disputes. It shows how increased awareness of climate change and its effects have clearly influenced the litigation and arbitration worlds. Developing bespoke environmental arbitration rules offers a number of benefits, including transparency, procedural flexibility, access to technical experts and arbitrators with key climate change expertise, and the possibility of multiparty involvement. Such rules may be of particular benefit to parties involved in carbon credit trading systems and investment projects motivated by such systems.

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.