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Sovereign Bonds and National Relativism: Can New York Law Contracts Safely Cross the Atlantic?
In a sovereign bonds issuance contract, choosing New York as both the governing law and the forum in case of litigation aims to avoid divergent interpretation of the same contract provision. As an illustration, the Argentine bonds held by NML, grounding their long-standing and well-known litigation, were stipulating a choice-of-court clause favoring New York courts and a choice-of-law designating New York law. But this article aims to show that choosing New York will not necessarily ensure a uniform application of contract terms. As shown by the NML vs Argentina European cases, it appears that some European countries’ rules might interfere with this goal of uniformity. This phenomenon can be particularly illustrated in the context of two clauses: the waiver of immunity from attachment and execution and the pari passu clause.