The Lehman Court (Intel Corp.) recognized that the 1992 ISDA use guide stated that „in certain circumstances, Loss is indeed intended to produce a different and more appropriate early termination measure than the market listing.“ 14 In accordance with the ISDA`s opinion, the Lehman Court (Intel Corp) stated that „the choice of Loss to calculate the non-failing party`s notice allows for the flexibly measuring and choosing the means of calculating its loss, provided such a method is reasonable and in good faith.“ 15 The court stated that Loss „would leave the determining party with a wide margin of appreciation to determine its loss, as long as its methodology was appropriate and in good faith.“ 16 The Tribunal added that „there is nothing in the text of the definition of loss that explicitly imposes a particular method of calculation or otherwise alters the clear meaning of that first sentence of the definition – that the non-failing party can calculate its loss in a reasonable and good faith manner.“ 17 As noted above, the market listing method is determined according to very rigid procedures and requirements on the basis of the courts.18 The Lehman Court (Intel Corp.) ultimately found that market quotation and loss „must be allowed, in certain circumstances, to provide notice for different amounts.“ 19 With what has been said: The Lehman Court (Intel Corp) pointed out 20 ISDA includes a liquidation claim clause in Section 6 (e)v) of the 2002 ISDA (and Section 6 (iv) of the 1992 ISDA), which provides that the amount of the early termination is „a reasonable estimate of loss and not a penalty.“ As a general rule, at the conclusion of the contract, the parties may accept a certain amount or calculation of the liquidated damage owed by the contract holder to the non-break party. The measure of liquidated injury serves as an estimate of the extent of the harm that would have been caused by an offence if the calculation of actual damage may be difficult or impossible.35 If the parties assert that the amount of the anticipated termination exceeds the „actual loss“ suffered by the determining party, the New York courts can ascertain whether the clause is admissible as a liquidated injury or whether an inadmissible penalty is applicable.36 If they are considered unacceptable or contrary to public policy.

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