Choice of law clauses in customer agreements: NASD conduct rule 3110(f)(4) Available to Purchase

Most account opening agreements used by US brokerage firms contain a standard predispute arbitration clause requiring customers to submit all disputes relating to the account to arbitration conducted according to the rules of a self‐regulatory organisation. Brokerage firms also routinely place a clause in their customer agreements designating the law which will govern the agreement. Under a rule of the National Association of Securities Dealers (NASD or Association) — IM 3110(f)(4) (Rule 3110(f)(4)) — brokerage firms may not place in a customer agreement ‘any condition which … limits the ability of a party to file any claim in arbitration or limits the ability of the arbitrators to make any award’. This rule places important limitations on the way firms utilise choice‐of‐law clauses. In light of recent legal developments, it is increasingly important for firms to be aware of the issues raised by the rule.