Introduction

Efficient financial dispute resolution justifies itself as more than just a way to maximize bankers' profits. Enhancing the reliability of loan agreements ultimately benefits lenders and borrowers alike, by promoting the contractual stability on which extensions of credit depend.

Whether justified or not, bankers have traditionally resisted arbitration, often from fear of aberrant or 'split-the-difference' decisions. The bankers' herd mentality and respect for custom have generally led to a preference for courts rather than arbitrators, often with good reason. Credit agreements generally provide for dispute resolution in court, either within the bank's home jurisdiction or in a major money centre such as London or New York.

Gradually, however, arbitration has gained a limited acceptance with respect to some financial transactions, particularly guarantees, debt rescheduling and public sector loans.1 Moreover, in the United States, arbitration clauses have found their way into consumer loan documentation and securities brokerage account agreements.2

Arbitration is not an all-terrain vehicle, however. Whether an arbitration clause is suitable for a credit agreement depends on factors such as the location of the debtor's assets, the configuration of foreign judgment treaties, exchange controls and the nature of the otherwise competent court.

For example, bankers will normally bring judicial actions when debtors' assets are subject to enforceable security interests, or when summary judicial procedures permit rapid enforcement of commercial paper obligations.3 By contrast, the prospect of a hostile American jury inclined to award punitive damages in a 'lender liability' action may make arbitration the path of wisdom.

Consequently, the 'cut and paste' dispute resolution clause taken from yesterday's loan can turn out to be an expensive mistake. While routine financial transactions conducted by large institutions require some standardization, the costs of a 'one-size-fits-all' clause often outweigh its benefits. Different fact patterns call for different adjudicatory mechanisms, drafted with critical analysis rather than merely from habit. [Page8:]

I. Why arbitrate?

In determining when arbitration may be appropriate for a credit agreement, several factors merit consideration: (i) the need for a more neutral forum than either banker's or borrower's courts; (ii) the existence of a multilateral treaty network to enforce a judgment or award at the place where the debtor has assets; (iii) the arbitrator's ability to ignore foreign exchange controls; (iv) the risk of excessive American jury awards with respect to both punitive damages and 'lender liability' claims; and (v) the need for special expertise, such as is often the case with documentary credit disputes.

A. Neutrality: 'Holocaust accounts', debt restructuring and public sector loans

Each protagonist in a dispute normally prefers its own hometown justice. In the real world, however, we cannot (nor should we) always have everything we want. Arbitration often provides a relatively level playing field, enhancing confidence in both the political and procedural fairness of the dispute resolution process.

Perhaps the most publicized use of arbitration to promote neutrality in financial dispute resolution arose from controversy over ownership of dormant Swiss bank deposits, some belonging to victims of Nazi persecution.4 Following class actions in New York5 and acrimony in Swiss-American commercial relationships,6 an international arbitral body was established to hear claims to certain accounts that had been inactive since the end of the Second World War.7 The bankers did not relish the prospect of claims being decided by New York juries, and the alleged heirs to the non-Swiss depositors were not entirely comfortable in Swiss courts. Arbitration commended itself as a comparatively neutral alternative.8

Similar concerns often lead to arbitration in the restructuring of a country's external debt and public sector loans. Debtor nations often have enough economic muscle to reject jurisdiction clauses designating the lender country's own courts, but not sufficient to impose their own judicial forum. For example, Brazil's rescheduling agreements accepted New York governing law, but provided for any disputes to be settled by arbitration.9

Likewise, documentation for public-sector lending to states and state enterprises also relies on arbitration clauses. For example, Franco-Iranian nuclear energy cooperation involved loans and guarantees that included arbitration clauses which were put to the test by the 1979 Iranian Revolution, with disputes adjudicated in both Geneva and Paris.10 The Standard Terms and Conditions of the European [Page9:] Bank for Reconstruction and Development adopt the UNCITRAL Arbitration Rules,11 and the World Bank General Conditions Applicable to Loan and Guarantee Agreements provide for arbitration under an ad hoc procedure.12

B. Treaty networks

Bankers sometimes must enforce court judgments in their favour against assets located outside the country where the judgment was rendered. For example, an American bank that obtained a judgement in New York against a foreign borrower might have to seek its enforcement against property in Europe, Asia or Latin America.

Unfortunately, not all banks will benefit from an adequate treaty network for the recognition of foreign judgments. Although the Brussels13 and Lugano14 Conventions bless Western Europe with a sound mechanism to enforce each others' court judgments, these treaties will be of no use in non-Convention countries. Moreover, no treaties at all exist for the enforcement of American judgments abroad.15 While some countries might as a matter of 'comity' enforce a foreign judgment, not all legal systems will be so generous.

In contrast, a worldwide network of bilateral and multilateral treaties provides for the enforcement of arbitral awards. The most important of these treaties is the New York Arbitration Convention,16 which requires courts of one hundred and twenty two contracting states to enforce written arbitration agreements and the resulting awards, subject only to a limited litany of defences related to procedural matters such as the validity of the arbitration agreement, the opportunity to be heard, and the limits of the arbitral jurisdiction. Many Latin American countries have adopted the Inter-American Arbitration Convention (often referred to as the Panama Convention),17 which mirrors much of the New York Arbitration Convention, albeit with a more limited enforcement scheme. Moreover, the Washington Convention has established an arbitration procedure under the auspices of the World Bank's International Centre for the Settlement of Investment Disputes ('ICSID'),18 covering disputes arising out of investment contracts between a host state and a foreign national. Investment treaties frequently contain consent to ICSID jurisdiction, and many define investment to include 'all categories of assets', including claims to money.19[Page10:]

C. Exchange controls

When a country freezes or restricts payment of foreign currency obligations,20 borrowers sometimes invoke these exchange controls as defences to loan recovery,21 on the theory that such controls constitute a foreign 'Act of State' to which courts must defer. Although principally an American obsession, the act of state doctrine exercises an influence well beyond common law countries, given the large number of cross-border financial transactions routinely subjected to New York law and the jurisdiction of New York courts.22

The act of state doctrine generally prohibits courts from questioning a foreign government's behaviour concerning assets within its territory.23 Sometimes explained as a limit on judicial interference with the conduct of foreign affairs,24 the doctrine might best be understood as a conflict-of-laws rule that imposes foreign law even if such law is contrary to the public policy of the forum.

The United States has eliminated the act of state defence in actions to enforce arbitration agreements and awards. The Federal Arbitration Act provides: 'The enforcement of arbitral agreements, and the confirmation of arbitral awards, shall not be refused on the basis of the act of state doctrine.'25 The scope of this remarkably succinct bit of legislation, however, has not been extended to court litigation. Thus, an arbitration clause in a cross-border loan agreement may considerably enhance a creditor's prospect of loan recovery.

D. Lender liability and punitive damages

A chameleon-like catch-word with several meanings, 'lender liability' has been pressed into service by non-performing debtors in the United States seeking damages for a bank's alleged failure to act in 'good faith', whether under common law or statute.26 Analogous regimes have been imposed in some Continental legal systems.27

To avoid what they consider to be excessive and unpredictable awards by juries in such litigation, several American financial institutions now provide for arbitration in credit card agreements.28 These institutions presume that an arbitrator will be less swayed by solicitude for the borrower than will members of a civil jury, whose own credit problems may cause them to empathize with the debtor. [Page11:]

In a consumer context, enforcement of arbitration clauses will depend on judicial perceptions of the clauses' fairness. For example, when an agreement to arbitrate is simply included with a monthly account statement, courts may understandably find the customer's informed consent to be lacking.29

E. Expertise

International business transactions rely increasingly on documentary credits, by which banks promise to pay money upon presentation of documents. The advantage of a documentary credit lies in its independence from the underlying business relationship. A seller can get paid even if the buyer has complaints about the quality of the merchandise, provided the documents presented to the bank comply with the terms of the credit.

Resolving disputes that arise from documentary credits often calls for special expertise, requiring an understanding of the ICC Uniform Customs and Practices for Documentary Credits ('UCP').30 For example a buyer's bank in Madrid might issue a letter of credit in favour of a seller in the United States, confirmed by a bank in New York. If the issuing bank refuses payment on the basis that the bill of lading did not mention 'Clean on Board', a dispute might arise over whether such a requirement exists under the UCP. Courts are not always the most felicitous forum to resolve such technical controversies.31

To reduce the cost and delay of such documentary credit litigation, parties to letters of credit sometimes agree to submit their controversy to arbitration under the rules of an institution that has developed experience in documentary credit disputes. Special care must be taken in drafting an arbitration clause for a letter of credit, since the dispute may implicate more than two parties. For example, if a controversy involves an applicant or beneficiary as well as the issuing and confirming banks, the arbitration clause should provide for consolidation of all claims before a single arbitral tribunal. Otherwise, a bank may be caught in the middle between inconsistent results of multiple arbitral and/or court decisions.

Arbitration of documentary credit disputes must be distinguished from documentary credit dispute resolution by decision-makers styled as 'expert' rather than 'arbitrators'. For a variety of reasons, including distrust of binding arbitration, banks sometimes prefer to submit letter of credit controversies to experts convened under the ICC Rules for Documentary Credit Dispute Resolution Expertise ('DOCDEX'),32 administered by the ICC Centre for Expertise in conjunction with the ICC Banking Commission. In such cases, absent an express choice to the contrary, the decision will be non-binding, with moral force only.33

II. Tailoring arbitration clauses to particular needs

A. Unilateral arbitration clauses

For the lender, the ideal litigation strategy would normally include an option either to elect arbitration or to go to court, permitting significant flexibility with respect to [Page12:] elements that are hard to forecast when a loan is signed. For example, the bank may want to assess, after a dispute arises, whether extensive documentary discovery is in its interest. If discovery turns out not to be desirable, the lender would elect arbitration, where the likelihood of discovery is less than in many court actions.

Whether such optional clauses will be enforceable is not entirely certain. Rightly or wrongly, some courts have invoked the principle of 'mutuality of remedy'34 to invalidate one-sided arbitration agreements,35 on the theory that if one side is not bound neither is bound. Each party's right to relief depends on whether it would have been available to the other. Other courts, however, have been willing to enforce one-sided clauses.36

By contrast, there seems to be greater tolerance of unilateral agreements designating national courts. In some standardized forum selection clauses, a bank reserves the right to sue its customers at their domiciles, but requires litigation against the bank to be brought only in the contractually chosen forum, usually the place of the bank's headquarters or designated branch office. The Brussels and Lugano Conventions admit unilateral jurisdiction selection,37 as does case law enforcing a contractual right to choose between several different courts.38

While 'mutuality of remedy' is a principle of questionable vitality, particularly outside the forum selection area,39 there will nevertheless be situations in which lopsided dispute resolution clauses clearly violate notions of fundamental fairness.40 For example, few observers would feel at ease with an arbitration clause allowing only one side to call witnesses, even though there would be nothing unfair about such a 'documents only' proceeding applicable to both sides.

B. Merits review of awards

One way to meet the bankers' fears of aberrant awards rendered by incompetent arbitrators might be to provide for judicial review on the merits of arbitral awards. For example, although error of law and/or fact is not usually a ground for award vacatur under modern arbitration statutes, parties can by contract provide for judicial review on such grounds.

The enforceability of such clauses is not entirely free from doubt. Some courts have upheld these attempts to expand contractually the scope of judicial review.41[Page13:] Others view the practice with disfavour41 or declare the clauses void as against public policy.43 Depending on the country, uncertainty also surrounds the validity of the converse arrangement, clauses purporting by contract to waive normal recourse against arbitral awards.44

Conclusion

Whether arbitration is appropriate to the resolution of a financial controversy usually hinges on more than one factor. Can a judgment be rendered in a location where the debtor has assets? If not, will an international treaty enforce the judgment of a court with jurisdiction to hear the dispute? Is the debtor's country likely to impose exchange controls? Will the courts entertain 'lender liability' or punitive damage claims against the banker? How costly and time-consuming will a court action prove to be? Will summary judgment procedure be available to the lender?

Depending on the answers to these questions, an arbitration clause can sometimes prove more reliable than a court selection agreement. Arbitration merits special consideration when: (1) heightened concern exists over procedural and political neutrality (such as in public sector loans); (2) the borrower's assets are found in jurisdictions lacking judgment treaties with the probable litigation forum; (3) loans are subject to exchange controls; (4) debtors might file actions for punitive damage based on theories of 'lender liability'; and (5) the dispute calls for special expertise, such as in the settlement of documentary credit disputes. In all events, there can be no substitute (other than blind luck) for attention to a transaction's specific contextual configuration.

1
For a survey of financial dispute resolution, see Lee C. Buchheit, How to Negotiate Eurocurrency Loan Agreements, 2d ed. (2000); William W. Park, 'Arbitration in Banking and Finance' (1998) 17 Annual Review of Banking Law 213 and 'Particularités de l'arbitrage en matière bancaire et financière' [1994] Semaine judiciaire 621; Bruno Leurent, 'Garanties bancaires et l'arbitrage' / 'Bank Guarantees and Arbitration' [1990] RDAI / IBLJ 401; Bernard Chambreuil, 'Arbitrage international et garanties bancaires' [1991] Rev. arb. 33; Bernard Hanotiau, 'La pratique de l'arbitrage international en matière bancaire' (1995) in Association européenne pour le droit bancaire et financier - Association belge des juristes d'entreprise, Modes non judiciaires de règlement des conflits 69; Norbert Horn, 'The Development of Arbitration in International Financial Transactions' (2000) 16 Arbitration International 279; Christophe Dugué, 'L'arbitrage des litiges relatifs aux financements de projets et aux produits dérivés' (January-February 2000) 14 Décideurs juridiques et financiers 44; Philippe Marini, 'Arbitrage, médiation et marchés financiers' [2000] Revue de jurisprudence commerciale 155.

2
See 'Symposium on Arbitration in the Securities Industry' (1995) 63 Fordham Law Review; Hans van Houtte, 'Arbitration Involving Securities Transactions' (1996) 12 Arbitration International 405.

3
See, e.g., French Nouveau Code de procédure civile, Art. 1405(2), granting courts power to order an injonction de payer with respect to negotiable instruments.

4
See Daniel Girsberger, Das internationale Privatrecht der nachrichtenlosen Vermögen in der Schweiz (1997); Urs Zulauf, 'Bankgeheimnis und Historische Forschung' [1994] Zeitschrift für schweizerisches Recht 105.

5
Although announced on 12 August 1998, the $ 1.25 billion settlement of these class actions received judicial approval only on 26 July 2000. See Re Holocaust Victim Asset Litigation, 96 Civ. 4849, U.S. District Court, E.D.N.Y.

6
See, e.g., 'Swiss Are Warned of New York Sanctions' International Herald Tribune (3 July 1998) 5; 'Trade War Between United States and Switzerland' New York Times (31 July 1998) A13.

7
See The Claims Resolution Process on Dormant Accounts in Switzerland (Colloquium in Zurich on 22 January 2000) Association Suisse de l'Arbitrage, Special Series No. 13, January 2000; Hans Michael Riemer, Georg von Segesser & Brigitte von der Crone, 'The Claims Resolution Tribunal for Dormant Accounts in Switzerland' (1999) 14:2 Mealey's International Arbitration Report 19; Suzannah Linton, 'Righting a Wrong or Prolonging the Agony? The Work of the Claims Resolution Tribunal for Dormant Accounts in Switzerland' (1999) 12 Leiden Journal of International Law 373; Amance Dourthe-Perrot, 'Le Tribunal arbitral pour les comptes en déshérence en Suisse' [1999] Rev. arb. 21.

8
See William W. Park, 'Jurisdictional Issues in Financial Arbitration' in K. P. Berger, ed., Festschrift für Otto Sandrock zum 70. Geburtstag (2000) 745 at 747-49.

9
See Deposit Facility Agreement between Banco Central do Brasil and Republica Federativa do Brasil (as guarantor) and Citibank, N.A. (as agent), 22 September 1988, § 12.08(a)-(b).

10
See ICC arbitral awards in cases 3683 and 5124; C.E.A. v. Republique Islamique d'Iran, Swiss Tribunal fédéral, ATF 116 II (17 May 1990); French Cass. civ. 1re, 20 March 1989 and 28 June 1989, [1989] Rev. arb. 653 (Annot. P. Fouchard). A separate French franc loan made to a related entity resulted in an award on 20 December 1990. See 'Eurodif est condamné à payer 940 millions de francs à l'Iran' Le Monde (1 January 1991) 16.

11
See European Bank for Reconstruction and Development, Standard Terms and Conditions, February 1999, section 8.04. In contrast, private sector lending by the European Bank for Reconstruction and Development gives the lender the option, at the time of a dispute, either to arbitrate or to sue the borrower in its country of residence. See generally John W. Head, 'Evolution of the Governing Law for Loan Agreements of the World Bank and Other Multilateral Development Banks' (1996) 90 AJIL 214.

12
See, e.g., International Bank for Reconstruction and Development, General Conditions Applicable to Loan and Guarantee Agreements for Currency Pool Loans, January 1985, as amended, section 10.04.

13
See Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (as amended), 27 September 1968, O.J. (1990) No. C 189 at 2, art. 31ff.

14
See Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 16 September 1988, O.J. (1988) No. L 319 at 9, art. 31ff.

15
The United States' failure to conclude any judgments treaty derives in part from our trading partners' apprehension over punitive damages, civil juries, contingency fees and other quaint aspects of the American judicial system. See generally William W. Park, International Forum Selection (1995) at 46-49.

16
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 21 U.S.T. 2518, 330 U.N.T.S. 3. The operation of the New York Convention is supplemented by the Geneva European Convention of 1961, but only as between residents of European Convention countries. European Convention on International Commercial Arbitration, 21 April 1961, 484 U.N.T.S. 349.

17
Inter-American Convention on International Commercial Arbitration, 30 January 1975, 14 I.L.M. 336.

18
Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 March 1965, 575 U.N.T.S. 159.

19
See Rudolf Dolzer & Margrete Stevens, Bilateral Investment Treaties (1995) at 25-31, 130-46. See also Jan Paulsson, 'Arbitration Without Privity' (1995) 10 ICSID Rev. 232. Consent to ICSID jurisdiction may be given in an individual investment agreement, host state legislation or treaty obligations, but may not be withdrawn unilaterally. The North American Free Trade Agreement [NAFTA] gives investors a right to bring claims for expropriation under the arbitration rules of ICSID, the ICSID 'Additional Facility' or UNCITRAL. See NAFTA, 12 August 1992, art. 1120, ch. 11, § B.

20
On exchange controls, see generally International Monetary Fund Articles of Agreement, art. VIII(2); Klaus Peter Berger, 'Acts of State and Arbitration: Exchange Control Regulations' in K.-H. Böckstiegel, ed., Acts of State and Arbitration (1997) 99; Ross Cranston, 'The Freezing and Expropriation of Bank Deposits' in Ross Cranston, ed., Legal Issues of Cross-Border Banking (1989) 93.

21
See, e.g., Wells Fargo Asia Ltd. v. Citibank, 852 F.2d 657 (2d Cir. 1988), vacated and remanded 495 U.S. 660 (1990), aff'd 936 F.2d 723 (2d Cir. 1991); Garcia v. Chase Manhattan, 735 F.2d 645 (2d Cir. 1984); Allied Bank v. Banco Credito Agricola, 566 F. Supp. 1440 (S.D.N.Y. 1983), aff'd 733 F.2d 23 (2d Cir. 1984), rev'd on reh'g 757 F.2d 516 (2d Cir. 1985); Perez v. Chase Manhattan 61 N.Y.2d 460 (N.Y. 1984).

22
Cases involving the act of state doctrine sometimes intersect with those arising under Article of Agreement VIII(2)(b) of the International Monetary Fund, providing that exchange controls which comply with the IMF Agreement must be respected. See IMF Article of Agreement VIII(2)(b), providing that 'exchange contracts' contrary to valid exchange controls shall be unenforceable. IMF Article VIII(2)(a) prohibits controls on current transactions, which include interest on loans and payments of moderate amounts for loan amortization. Debate has focused on whether to interpret 'exchange contract' broadly to cover all agreements affecting balance of payments, including cross-border loans. Conceptually, however, the two doctrines remain independent.

23
See Restatement (Third) of Foreign Relations Law of the United States, § 443 (1987).

24
See generally Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

25
9 U.S.C. § 15 (1994), enacted following a frustrating attempt to enforce an arbitration award against Libya in American courts. See Libyan American Oil Co. (LIAMCO) v. Libya, 482 F. Supp. 1175 (D.D.C. 1980), vacated as moot, 684 F.2d 1032 (1981).

26
See generally Helen Davis Chaitman, The Law of Lender Liability (1990); A. Brooke Oveby, 'Bondage, Domination and the Art of the Deal: An Assessment of Judicial Strategies in Lender Liability Good Faith Litigation' (1993) 61 Fordham Law Review 963; Daniel R. Fischel, 'The Economics of Lender Liability' (1989) 99 The Yale Law Journal 131.

27
E.g., France's Loi n° 84-46 du 27 janvier 1984, art. 60 of which provides that 'Tout concours à durée indéterminée, autre qu'occasionnel, qu'un établissement de crédit consent à une entreprise, ne peut être réduit ou interrompu que sur notification écrite et à l'expiration d'un délai de préavis fixé lors de l'octroi du concours.' [Any aid that a credit institution grants to a business for an unlimited duration, other than occasional, may be reduced or suspended only upon notification in writing and at the end of a period of notice set when the aid was accorded.] On the basis of this statute, the Court of Cassation has held that renewal of a fixed-term loan may create an indeterminate credit. See Cass. com., 3 December 1991, [1992] Banque 842 (Annot. Rives Lange).

28
See, e.g., model clauses adopted by Bank of California and Bank of America, reprinted in James R. Butler, Jr., Arbitration in Banking: State of the Art (1988).

29
See, e.g., Badie v. Bank of America, 67 Cal. App. 4th 779, 79 Cal. Rptr. 2d 273 (1st Dist.) (1998), review denied 24 February 1999.

30
See ICC Uniform Customs and Practices for Documentary Credits, ICC Publication No. 500 (1993).

31
See Clarendon v. State Bank of Saurashtra, 77 F.3d 631 (2d Cir. 1996), where a Swiss beneficiary of a letter of credit, issued by a state bank in India, had to pursue almost four years of judicial proceedings, with three different court decisions, merely to obtain an appellate order remanding the case to a lower court for disposition on the merits of the claim.

32
ICC Publication No. 577. William W. Park, 'Documentary Credit Dispute Resolution: The Role of Arbitrators and Experts' (1997) 12:11 Mealey's International Arbitration Report 15.

33
The Rules state that the experts' decision 'is not intended to conform with any legal requirements of an arbitration award' (Article 1.3) and that 'unless otherwise agreed, a DOCDEX Decision shall not be binding upon the parties' (Article 1.4). See ICC Publication No. 577.

34
In a way that obscures analytic clarity, some courts also speak of 'mutuality of obligation', in the sense that unless both parties are bound to an arbitration clause, neither is bound. See Laurent A. Niddam, 'Unilateral Arbitration Clauses in Commercial Arbitration' [1996] ADRLJ 147.

35
See Arnold v. United Companies Lending Corp., 511 S.E.2d 854 (W. Va. 1998); R.W. Roberts Construction v. St. John's River Water Mgt. Dist., 423 So.2d 630 (Fla. Dist. Ct. App. 1982); Lopez v. Plaza Finance, 1996 WL 210073 (N.D. Ill. 1996); Stevens, Leinweber, Sullens Inc. v. Holm Dev. & Management 795 P.2d 1308 (Ariz. Ct. App. 1990). In Hull v. Norcom, Inc., 750 F.2d 1547 (11th Cir. 1985), the court held unenforceable an arbitration clause subject to New York law because the employer retained a right to go to court; the result in this case might be different today in light of Sablosky v. Gordon Co., 73 N.Y.2d 133 (N.Y. 1989).

36
See Doctor's Assoc. v. Distajo, 66 F.3d 438 at 451 (2d Cir. 1995); Becker Autoradio v. Becker Autoradiowerk GmbH, 585 F.2d 39 at 42 (3d Cir. 1978); Cindy's Candle Co. v. WNS Inc., 714 F. Supp. 973 (N.D. Ill. 1989); W.L. Jorden & Co. v. Blythe Industries, Inc., 702 F. Supp. 282 (N.D. Ga. 1988); Sablosky v. Gordon Co., 73 N.Y.2d 133 at 138-39 (N.Y. 1989); Willis Flooring v. Howard S. Lease Const. Co., 656 P.2d 1184 (Alaska 1983); Kalman Floor Co. v. Jos. L. Muscarelle Inc., 481 A.2d 553 (N.J. Super. 1984). See also Cole v. Burns Intern. Sec. Serv., 105 F.3d 1465 (D.C. Cir. 1997) (accepting an arbitration clause in an employment contract exercisable at the employer's option on condition that employer pay the arbitration fees).

37
See Brussels Convention, art. 17, para. 5.

38
See, e.g., Medoil Corp. v. Citicorp, 729 F. Supp. 1456 (S.D.N.Y. 1990) (customer could sue Citibank only at location of branch managing account, while bank could bring action also at customer's residence).

39
See generally, U.S. Restatement (Second) of Contracts § 79, comment f (statement that both parties must be bound or neither is bound said to be 'obviously erroneous as applied to an exchange of promises') and § 363, comment c ('the law does not require that the parties have similar remedies in case of breach'). See also E. Allen Farnsworth, Contracts, 3d ed. (1999) § 12.4 at 768-69, referring to the 'now discredited "mutuality of remedy" rule, under which the injured party's right to specific relief depended on whether it would have been available to the other party'.

40
One court, however, rejected 'asymmetry of procedural choices' in order to justify enforcement of a forum selection clause for the benefit of a defendant who was not a party to the agreement. See Frietsch v. Refco, Inc., 56 F.3d 825 at 827-28 (7th Cir. 1995), permitting defendant brokerage firm to rely on the choice of a German forum in an agreement between investors and promoters, in order to preclude legal action in the United States for allegedly operating a Ponzi scheme.

41
See Lapine Tech. Corp. v. Kyocera Corp., 130 F.3d 884 (9th Cir. 1997); Gateway Technologies v. MCI Telecommunications Corp., 64 F.3d 993 (5th Cir. 1995); Fils et Cables d'Acier de Lens v. Midland Metals Corp, 584 F. Supp. 240 (S.D.N.Y. 1984); New England Utilities v. Hydro-Quebec, 10 F. Supp. 2d 53 (D.Mass. 1998); Syncor International v. David MacLeish, 120 F. 3d 262 (4th Cir. 1997).

42
See Chicago Typographical Union v. Chicago Sun-Times, 935 F.2d 1501 (7th Cir. 1995), stating that federal court review power cannot be created by contract.

43
See French Cour d'appel de Paris, 27 October 1994, Diseno v. Société Mendes, [1995] Rev. arb. 261. See generally cases cited in Ph. Fouchard, E. Gaillard & B. Goldman, Traité de l'arbitrage commercial international (1996) at 931, § 1597, notes 142-46 / E. Gaillard & J. Savage (eds.), Fouchard, Gaillard, Goldman On International Commercial Arbitration (1999) at 917, § 1597, notes 163-167.

44
Compare M&C Corp. v. Erwin Behr GmbH, 87 F.3d 844 at 847 (6th Cir. 1996) (waiver of appeal provision does not insulate awards from review for procedural irregularities) and Noble China v. Lei, 42 Ontario Reports (3d) 69 (1998) (allowing exclusion of all judicial review except during award enforcement). In some countries statutes permit complete waiver of the right to move to vacate an award at the arbitral situs. See Article 192 Swiss Loi fédérale sur le droit international privé and Article 1717(4) Belgian Code judiciaire.