THE LAW APPLICABLE TO BENEFICIARY’S
PRESENTATION FOR PAYMENT
10.01 Consideration of the American courts’ approaches to the ascertainment of the governing law of the beneficiary’s claim for payment against documents tendered under a credit may conveniently begin with the choice of law provisions set forth in section 5-116 of Revised Article 5 that deals with letters of credit under the Uniform Commercial Code and is now statutorily operative throughout the country. Section 5-116 (a) and (b) contain the applicable choice of law precepts. They read as follows: Section 5-116 (a), ‘The liability of an issuer, nominated bank person, or adviser for action or omission is governed by the law of the jurisdiction chosen by an agreement in the form of … a provision in the … letter of credit, confirmation, or other undertaking. The jurisdiction whose law is chosen need not bear any relation to the transaction’. Section 5-116 (b), in relevant part provides: ‘Unless subsection (a) applies, the liability of an issuer, nominated person, or adviser for action or omission is governed by the law of the jurisdiction in which the person is located. The person is considered to be located at the address indicated in the person’s undertaking’.
10.02 Notably, however, section 5-116 (c) laid down that a credit is ‘governed by any rules of custom or practice, such as the Uniform Customs and Practice for Documentary Credits [or International Standby Practices (ISP98)1] to which the credit is expressly made subject’. At first sight, this clause might be taken as implying that the UCP is a potential governing law of a credit. But the fact of the matter is that the proper law of a contract has to be the law of a country;2 the UCP is a non-national code of standard banking practices, terms, and conditions designed to define certain of the substantive rights and obligations of the parties to the particular credit (or a credit-opening agreement) incorporating it. As such, they form part of the text of the credit as ordinary contractual provisions which the law selected by application of section 5-116 (a) or (b) will have to construe to determine the beneficiary’s claim of wrongful rejection of documents. In construing them, it is for the selected law to decide what effect, if any, they are entitled to be given within the four corners of the credit. If, for instance, the law is that of a jurisdiction, say, Michigan, in the US, section 5-116 (c) (iii) requires that the substantive provisions of the Article (i.e. Revised Article 5) and those of the UCP will both apply; and clarifies that where there is a conflict between them, the latter takes precedence.3 As a matter of construction of commercial contracts in the common law world, however, in the event of an irreconcilable inconsistency between a rule of practice and a stipulation in the credit, the former must give way.4
10.03 Section 5-116 (a) choice of law rule, as set forth in para 10.01, articulates that the liability of the issuing bank is governed by the law stated in the credit, and adds the very important clause that the ‘jurisdiction whose law is chosen need not bear any relation to the transaction’. The italicized word is to be read restrictively as referring to the credit; the sales contract or arrangement which generated the credit is excluded. So understood, what the clause means is that the law selected is not required to have any contact with the locality of the issuing bank where the credit is opened on the applicant’s instructions or with that of the beneficiary where the issuer’s promise to honour a conforming presentation ripens into a binding contractual, but contingent undertaking. The commercial significance of this provision would be greatly appreciated when it is remembered that it marks a departure from the choice of law rule under UCC section 1-105 which confines contracting parties to the selection of the law of a jurisdiction having a ‘reasonable relation’ to their transaction, in sharp contrast to modern choice of law requirements in other countries with substantial interests in fostering international trade and commerce, under which no such restriction prevails.5
10.04 It should be noted that if the credit containing the governing law entails the involvement of a confirming bank, the beneficiary’s claim to enforce the undertaking spelt out in the credit against this bank would be determined by reference to that law. In consequence, the law by which the conformity of the beneficiary’s presentation under the credit is judged does not vary according to whether the bank sued is the issuing or confirming bank. In addition, by reason of the abandonment of the erstwhile reasonable contact test, no account is to be taken of the fact that the designated applicable law in the credit belongs to a country with no significant connection to any of the parties.
10.05 Where, as is typically the case, the credit does not say anything about what law applies, the choice of law rule in section 5-116 (b) has to be put into play to ascertain it and thus fill the gap in a manner that would safeguard the contracting parties’ legitimate commercial interests; moreover, at the very least, a credit is essentially an obligation that the parties are irrebutably presumed to have intended and will be enforced under the substantive law of some jurisdiction; but the difficult question is, to what extent can it go to supply the law? Now, section 5-103 (c) of the Revised Article provides that ‘the effect of this article may be varied by agreement or by a provision stated or incorporated by reference in’ a credit. A direct consequence of this subsection is to render section 5-116 (b) inapplicable in determining the law governing the beneficiary’s claim against the issuing bank if the agreed terms of the credit, expressly or by necessary implication, compel the inapplicability.
10.06 The question presented thus reduces to this: When may the parties be regarded as having implicitly intended to contract out of subsection (b), i.e. that the court should apply the contract choice of law of the forum rather than that in the clause? Subsection (b) itself affords a starting point in exploring the answer. According to it, failing an expressed choice of the applicable law, the law of the jurisdiction in which the issuing or confirming bank against whom he wishes to enforce the credit is located, governs the beneficiary’s claim for payment. A key feature of the provision is that the issuing bank’s and confirming bank’s engagements to the beneficiary will almost invariably be governed by different laws, since they are hardly ever in the same country. In effect, under a confirmed credit it is possible that the beneficiary’s presentation will be complying with the credit and valid according to the law governing the confirming bank’s obligation, but non-complying and unenforceable under the law controlling the issuing bank’s undertaking. However, the converse is also true.
10.07 Such inevitable consequence of the beneficiary’s tender being governed by a variety of significantly conflicting substantive laws, in any view, affords the beneficiary some degree of protection and comfort; however, in relation to a tender of documents liable to be treated as insufficient under the issuer’s law, it is directly at the expense of the confirming bank. This patently objectionable situation receives close scrutiny in Chapter 11, which covers the mode of ascertainment of the law governing compliance of the confirming bank’s presentation of documents to the issuing bank. Our focus for now is on establishing the law which should control the issuing bank’s obligation to honour the beneficiary’s documents under an unconfirmed credit. In the main, there are two types of such a credit to look at: one is a credit of that sort expressed to be available to the beneficiary with the issuing bank; the other is when the credit is to be realized at the designated bank in the beneficiary’s country.
10.08 With regard to the initial case, it is perfectly clear that the parties’ reasonable understanding of their agreement as expressed by the credit is that the presentation of the requisite documents must occur at the issuing bank’s counter in exchange for cash or for acceptance with the issuer incurring an undertaking to remit the sum on the due date. This shared expectation is wholly unaffected by the fact that the presentation is to be routed through a designated bank operating in the beneficiary’s locality. In the event of the issuing bank’s refusing to honour the tender by alleging non-compliance of the documents with the credit requirements, it is difficult to imagine that either of the parties would be legitimately surprised if the substantive law prevailing at the issuing bank’s location is utilized as the governing law owing to the application of section 5-116 (b).
10.09 An illustration of the credit under discussion is the one at the centre of the litigation in Shin-Etsu Chemical Co Ltd v ICICI Bank Ltd.6 The credit was issued by a New Delhi branch in favour of Shin-Etsu Chemical, a Tokyo-based seller, to finance the purchase of a cargo of fibre optic cables of Japanese origin. Under it, the defendant issuing bank undertook to pay Shin-Etsu, the beneficiary, upon its receipt in India of the documents enumerated in the credit within the stipulated time. Among the documents delivered there by courier was an airway bill executed by ‘Unitrans Ltd as Agent of Air India Ltd., carrier and as successor of Exel Japan Limited’, as opposed to ‘an airway bill issued by Exel Japan Limited, or its successor, if any’, called for in the credit. This variance from the credit was alleged by the issuing bank as material and justifying its refusal to accept the document and make payment. In an action raised in New York to contest the rejection, the Appellate Division (comprising four judges) unanimously declined jurisdiction on the ground that the claim was governed by Indian law, and that it would be more appropriate for the Indian courts to apply its law to determine the conformity of the airway bill.
10.10 In concluding that the law of India was controlling, it must be admitted that Justice Sullivan, speaking for the appellate court, made no reference to section 5-116 (b) but instead premised his ruling on the idea (originated by a minority of ill-considered common law decisions7 examined later) that the law of the place of issuance of a credit governs the issuing bank’s obligation, unless the credit is confirmed. It is submitted that the judge’s approach was wrong, not least because as a statutory matter8 the choice of law rule spelt out in the subsection cannot be ignored without a reason. Fortunately, however, the omission is by no means a fatal error in that the conclusion was entirely correct; only the reasoning appears unsatisfactory.
10.11 A reassuring view of the point being made is exemplified by Andersen J.’s dictum in the more recent case of BCM Electronics Corporations v LaSalle Bank N.A.9 There, LaSalle Bank in Illinois at the request of a Mr Franklin issued two letters of credit for the benefit of BCM, an exporter of certain electronic products in Malaysia. After effecting to Franklin five separate shipments of the goods covered by the credit, BCM tendered various documents to LaSalle under the credit for payment. Citing ‘inspection certificate and air way bill not included’, LaSalle dishonoured the presentation. In the ensuing action in the Illinois Northern District Court for wrongful denial of payment, an issue arose as to the extent of LaSalle’s right to insist on compliance with the credit in circumstances when Franklin had waived the missing documents and the goods had also arrived safely at the agreed destination in Chicago. Noting that the credit was silent as to choice of the applicable law, Anderson J. said that by virtue of section 5-116 (b) of Revised Article 5 as adopted by Illinois,10 Illinois law being the law of the issuing bank’s location governed the dispute.11 Applying that law, the court concluded that for ‘LaSalle to be bound by the waivers, it would have had to agree in writing that the waivers modified’ the terms of the credit.12 Had Malaysian law applied, the need for written consent might have been eliminated on the facts of the case, thereby requiring judgment for BCM, the beneficiary.
10.12 Nevertheless, there is no valid reason why a reasonable beneficiary in such circumstances as arose in the Shin-Etsu Chemical and LaSalle Bank cases would be surprised to find the law of the issuing bank’s country being applied to the dispute instead of his locality’s law, i.e. the substantive law of Japan and Malaysia, respectively. Typically, a beneficiary’s most important commercial motive for choosing to have a credit issued in his favour to settle the purchase price of the goods is the assurance of prompt payment that the credit provides, once he makes a conforming presentation. To be absolutely confident that the credit will indeed perform what it promises, the beneficiary’s first line of defence is to contract for the credit to be made available to him at a local bank, and not at the counters of the issuing bank operating under a legal system with potentially unpredictable and idiosyncratic features. Thus, in cases of the instant type, the beneficiary, having by omission apparently decided against adopting such alternative courses of action, it is submitted that he is not in a position to complain about the risks which his obtaining payment on the credit must face on account of the application of the law of the issuing bank’s country.
10.13 Bearing the just mentioned exercise of choice in mind, we turn now to the case of a credit expressed to be available to the beneficiary through a non-obligated nominated bank in a country other than the issuing bank’s own. If this designated bank does not honour the beneficiary’s presentation under the credit, for example, on grounds of uncertainty of obtaining reimbursement from the issuing bank or, in the worst case scenario, because the nominated bank has gone into insolvency or liquidation, the beneficiary has to fall back on the only option given to him by Article 7 of the UCP 600, namely, deliver the documents to the issuing bank in the manner, if any, stated in the credit for payment.
10.14 In that event, the issuing bank is under an obligation to honour the presentation if, upon examination, it is determined to be in apparent sufficiency and conforming, and has the absolute discretion to withhold payment if it is otherwise. A conflicts problem for our consideration emerges: what law would be applied to determine the beneficiary’s rights against the issuing bank in the event of dishonour of the tender? The contest is between the law of the place where the credit is originally expressed to be available and that of the issuing bank’s country in which the beneficiary, owing to the supervening circumstance of the paying nominated bank’s refusal to carry out its mandate, is obliged to tender his documents to enable the issuing bank to ascertain whether the condition for honouring its payment undertaking has been met. Which of the two laws applies?
10.15 On the surface, by virtue of section 5-116 (b), it is the law of the location at which the issuing bank opened the credit in question. However, a close perusal of the credit at hand demonstrates that, by stating on its face that it is available in a jurisdiction different from the issuing bank’s place of business, the parties impliedly contracted to take advantage of the unique banking system and regulatory protection the jurisdiction can offer. When, for example, an Indonesian issuing bank issues a credit available to a Californian beneficiary not in Jakarta, but with a designated Californian bank, it would seem clear that the parties are to be understood as requiring Californian rather than Indonesian law to have a controlling effect in the operation of, in particular the fulfilment of the issuing bank’s payment undertaking under, the credit. Accordingly, insofar as section 5-116 (b) would select the law of Indonesia to govern the transaction, thereby ultimately altering the legal risks attendant upon utilizing the credit, it is in conflict with the parties’ contractual expectations, and, as directed by section 5-103 (c), has to be disregarded to ensure that the credit obtains the operational protection it justly seeks.
10.16 It may be thought that this view is far-fetched as to the reasonable contemplation of the issuing bank, the beneficiary, and the applicant when they agreed that the credit be drawn in a form which entitles the beneficiary to realize it in his locality or elsewhere other than at the issuer’s counters upon delivering the requisite documents in the stipulated manner. But it is submitted that there is nothing fanciful about the proposition advanced; on the contrary, ample support for it is provided by a substantial line of high authority. Once it is accepted that section 5-116 (b) has no application to the credit under focus, in that to apply it would undermine the parties’ legitimate expectations and cripple their implied agreement to contract out of the clause,13 one must have recourse to the American common law choice of law test for ascertaining the law applicable to the issuing bank’s liability to honour the beneficiary’s presentation under such a credit, i.e. an unconfirmed credit stated on its face to be available in a country different from the issuing bank’s.
10.17 In modern times, judges in the state of New York and other jurisdictions in the United States often articulate the basic test in infinitely varying degrees of clarity.14 In substance, however, they all appear to be saying the same thing, except that, as will be seen shortly, the devil lies in its proper application. Stated simply, the rule is that the controlling law is that of the jurisdiction having the greatest interest in the resolution of the dispute in issue or the most intimate relationship with,15and thus the ‘centre of gravity’ of, the transaction giving rise to the dispute.16A jurisdiction is regarded as possessing the requisite attributes in relation to a beneficiary’s claim against an issuing bank if it is where payment of the credit sought to be enforced is envisaged by the parties to occur.17
10.18 An early case in which authoritative guidance was provided as to when a credit should be so treated in connection with a given state or country is afforded by the landmark decision of the New York Court of Appeals in J. Zeevi & Co Ltd v Grindlays Bank (Uganda) Ltd.18 An unrestricted negotiation credit originating from the defendant Ugandan bank provided that the amount on it was available against a tender of specified clean drafts.19 Chemical Bank in New York considered certain drafts presented by Zeevi, the beneficiary, conforming, and then negotiated and forwarded them to Citibank, Grindlays Bank’s correspondent bank also in New York, for reimbursement. Upon the drafts being returned unpaid, Chemical obtained a refund from Zeevi, who then sued Grindlays Bank to recover the money under the credit. The bank resisted the action by asserting that the law of Uganda governed its obligation to Zeevi, and pursuant to that law payment on the credit had been forbidden by the Ugandan Government. Naturally, if Ugandan law had control over Zeevi’s claim as Grindlays strenuously pressed, its liability for failing to fulfil the promise spelt out in the credit would usually20 be excused by reason of supervening illegality.
10.19 But Judge Cooke, with the concurrence of six other members of the Court of Appeals, made short work of Grindlays’ submission. After underscoring the principle that the law of the jurisdiction having the most substantial interest in the matter would be applied, the judge took the view that ‘New York has an overriding and paramount interest in the outcome of this litigation’.21 According to him, the state ‘is a financial capital of the world, serving as an international clearing house and market place for a plethora of international transactions, such as to be so recognized by our decisional law … A vast amount of international letter of credit business is customarily handled by certain New York banks whose facilities and foreign connections are particularly adaptable to the field of letter of credit operation[s]’.22 He then goes on to explain that the issuing bank and beneficiary ‘impliedly accepted [those] facts and set up procedures to implement their trust in [New York] policies’ when they purposely denominated the credit in US dollars and ‘listed’ New York as the ‘site of payment’.23 The judge concluded: ‘In order to maintain its preeminent financial position, it is important that the justified expectations of the parties to the [letter of credit] contract be protected’.24 Compared with Uganda, since New York is indispensably concerned with the determination of the solution to the dispute, its law is to be accorded preponderant control over the legal issues arising in the case.
10.20 An essential aspect of the Zeevi decision is the recognition that the issuing bank and the beneficiary as reasonable contracting parties put a premium on the jurisdiction in which their credit is, by its terms, available; the country where the credit is opened (i.e. the issuing bank’s locality, in the instant litigation Kampala) takes a back seat in the whole scheme of things. Equally noteworthy is the parties’ reasonable supposition, which is inextricably bound up with the fundamental policy of assurance of payment underlying the field of letters of credit, that the law of the relevant jurisdiction as against that of the issuing bank will apply to determine whether the beneficiary is entitled to payment or has submitted complying documents to the issuing bank to trigger the engagement clause in the credit.
10.21 A considerable number of cases25 have thus far, surely correctly, followed Zeevi without any criticism. For instance, in Optopics Laboratories Corp. v Savannah Bank of Nigeria Ltd,26 an unconfirmed negotiation letter of credit put up in Lagos by Mabson Pharmaceuticals at the defendant bank, SBN, named Ashford Laboratories in New Jersey as the beneficiary, to effect payment at Bank of America (BA) in New York for a large quantity of cold capsules. Upon shipment of the Pharmaceuticals to Mabson, Ashford presented conforming documents to BA for negotiation. Almost simultaneously with that tender, BA received a telegraphic advice from SBN that remittance of BA’s payment under the credit might not be prompt due to the difficulties the Central Bank of Nigeria was encountering in meeting foreign exchange needs of local banks and their customers. BA, quite reasonably, was swift to deny Ashford’s request. Optopics, an assignee of Ashford’s right to receive the letter of credit proceeds,27 then filed an action against SBN. It was argued for SBN that Nigerian law governed the action and according to the requirements of that law, the bank, having not consented to the assignment, was not bound to recognize Optopics’ demand for payment of the credit.28 Rejecting this argument and applying Zeevi, Sand J. reasoned that Ashford ‘contracted for United States dollars to be paid on the letter of credit in New York’.29 He accordingly concluded that New York is the centre of gravity of the payment undertaking of SBN, the issuing bank, with the inevitable result that New York law had to be applied.
10.22 As with the conclusion in Zeevi, Sand J.’s ruling, it is submitted, furthers the essential purpose of the sort of credit at the centre of the litigation: by agreeing a credit available for payment or negotiation at a solid financial centre of international repute rather than at a relatively still maturing centre in the issuing bank’s location, the parties implicitly consented to accord primacy to the former together with its law as opposed to the latter centre so far as concerns the beneficiary’s right to draw and the issuing bank’s obligation to pay on the credit. Inextricably intertwined with the agreement is the anticipation that section 5-116 (b) is inapplicable to the credit to the extent that it allocates the financial centre of the issuing bank predominant interest in the application of its law.
10.23 Worth considering, however, are the three cases of RSB Mfg. Corp. v Bank of Baroda,30 Sabolyk v Morgan Guaranty Trust Co of New York,31 and Chuidian v Philippine National Bank,32 which appear to be out of tune with the Zeevi line of authorities. It is appropriate to examine briefly these decisions one after another in order to determine if the deviation might be justified in the particular circumstances of the cases.
10.24 In Bank of Baroda, the Bombay (now Mumbai) branch of the defendant, Baroda Bank, issued a letter of credit in favour of a New York corporation, RSB, to finance the purchase by its customer, Elegant Industries, of a shipment of jewellery making equipment. Chemical Bank in New York was named in the credit as the ‘advising and paying bank’. Elegant was apparently dissatisfied with the terms of the sales contract soon after the opening of the credit. Alleging fraud against RSB, Elegant sought and obtained an injunction in an Indian court restraining Baroda Bank from ‘encashing or paying the credit in any manner whatsoever’. Meanwhile, RSB had shipped the goods as ordered by Elegant and incurred substantial expenses. Nevertheless, Chemical, having been notified by Baroda Bank of the subsisting injunction, dishonoured RSB’s presentation for payment of the credit, which ultimately obliged RSB to file for bankruptcy. In the resulting proceedings raised in New York, the court noted that whether or not the Indian court order was effective to prevent Baroda Bank from honouring its obligation to RSB depended principally on the threshold question of whether the obligation under the credit was to be performed in India or in New York, because in principle the order cannot excuse the bank from fulfilling an obligation that the credit requires to take place in New York; it can only do so if the obligation is to be carried out in India. Agreeing with the trial judge’s ruling33 that the action to enforce the credit against Baroda Bank was doomed to defeat by the restraining order, the appeal court said that RSB’s claim ‘does not [engage] any interest of New York’ so as to cause the court to apply New York rather than Indian law, especially because Baroda as issuing bank was obligated to honour RSB’s conforming documents at its location in Bombay, not New York. In so concluding, it did not matter to the court that under the credit New York, and not Bombay, was the expressly designated place of payment, and that the mere fact that RSB had to look to Baroda in Bombay for payment could not by itself shift the place of availability of the credit from New York to Bombay. In fairness, however, it should be noted that Zeevi was not brought to Sand J.’s attention. Otherwise, he would probably have concluded differently.
10.25 Much the same issue as involved enforcement of the credit in Bank of Baroda arose in the Sabolyk case. Sabolyk was the beneficiary of a standby letter of credit issued by Morgan Guaranty Trust in Zurich (Morgan-Zurich) to secure the payment of some promissory notes given by Genius Corporation in Texas in respect of the shares it purchased from Sabolyk. Following an order of attachment granted by the District Court of Zurich against the credit on Genius’ petition that Sabolyk obtained the promissory notes by deception, Sabolyk sued Morgan Guaranty’s head office in New York claiming entitlement to the amount of the credit. This defendant argued that its Zurich branch was perfectly ready and willing to honour Sabolyk’s complying presentation, but that as long as the attachment order was in effect, payment on the credit was legally impossible. A threshold question arising therefore was a determination of the law which had control over the issuing bank’s obligation to Sabolyk, which necessarily requires ascertainment of the place of performance of the payment obligation.
10.26 Mary Johnson Lowe J. found that nothing was to be done under the credit in New York. Interfirst Bank of Dallas, who advised the credit to Sabolyk in Texas, was the bank authorized to effect payment under the credit and claim reimbursement from Morgan-Zurich, the issuing bank. Morgan-New York was not identified as playing any role in the credit transaction at all. Curiously, nonetheless, the judge held that Zurich was the place of payment of the credit. Again, as in Bank of Baroda, the Zeevi decision was not cited to the court.
10.27 Nevertheless, looking at the facts of the Sabolyk case, the judge’s view is hard to support. At bottom, the jurisdictions which had contacts with the matter raised in the litigation were Texas and Zurich; New York was out of the question. So far as the issuing bank and beneficiary were concerned at the time of issuance of the credit, the place where the beneficiary was to receive payment on the credit was Dallas in Texas, not Zurich. The state which had the most essential relationship with the transaction was accordingly Texas, which carries with it the further consequence that the law of this state, as opposed to Swiss law, governed the Morgan-Zurich payment undertaking. It would thus seem that the court ought to have rejected the defence of supervening illegality of performance and denied recognition to the Zurich court order.
10.28 However, although not explicitly intimated in Lowe J.’s judgment, a possible ground for her ruling that the place of performance was Zurich was that only Morgan-Zurich, the issuing bank, undertook payment responsibility under the credit; Interfirst Bank Dallas was authorized but not obligated to accept the beneficiary’s conforming tender. So, the issuing bank and beneficiary must have anticipated that if Interfirst declined to carry out its mandate, the beneficiary would submit the documents to the issuing bank in Zurich and demand payment there, which was in fact what actually transpired. Still, that eventuality does not go to affect the circumstance that the beneficiary was entitled, according to the explicit terms of the credit, to insist on payment by the issuing bank at the place where the credit on its face says it is available upon the beneficiary’s delivery of regular documents. On this issue, insofar as the Sabolyk and Bank of Baroda decisions are at variance with Zeevi, their standing as decisional authority is open to doubt.
10.29 Despite their highly debatable precedent value, both decisions were discussed and applied in the Chuidian case. An intriguing feature of this case is that it followed Sobolyk and Bank of Baroda in apparent preference to Zeevi. In so doing, Chuidian has substantially potentially weakened the utility of an unconfirmed cross-border credit payable against a tender of complying documents in California and brought to the Californian courts, or to a court within the Ninth Circuit jurisdiction,34 for enforcement. For an example of how it has that effect, see the Averbach case35 discussed later. It is important to look at the Chuidian decision a little more closely.
10.30 Chuidian involved the same problem as we have seen in most of the cases considered earlier, namely, whether an issuing bank’s obligation to honour the beneficiary’s conforming presentation under an unconfirmed credit is governed by the law at the place designated in the credit for payment or by the law of the issuing bank’s country; put alternatively, where is the place of performance of an unconfirmed credit opened in one jurisdiction but to be realized by the beneficiary in another? A further alternative is, which place has the most significant contact with the beneficiary’s claim against the issuing bank under the credit?