Ucp DC-UCP-600
Ucp DC-UCP-600
Ucp DC-UCP-600
Nemat Ali, SEVP, Soneri Bank Ltd Abid Aziz Merchant, GM Pakistan, Mashreqbank
A Quote by Bernard Wheble, CBE Hon. Chairman, ICC Commission on Banking Technique
It still has to be appreciated, however, that UCP are not and cannot be intended to give a precise answer to each and every problem arising in practice. Those concerned with international trade, whether in banking, commerce and industry, transport or insurance, should not act like robots. Whilst taking full advantage of the overall guidance given by UCP, they should still apply their own intelligence and experience for the solution of the occasional essentially individual problem. Better still if they can avoid the problem ever arising, by the early use of common-sense unfortunately the least common of senses. Bankers, for example, as experts in this method of payment, could help their customers and themselves by timely advice to the applicant so that he gives instructions which produce a workable credit at the outset and to the beneficiary so that he knows precisely what he has to do to get payment under the credit. In fact, UCP needs to be supplemented by what can be described as a form of education, with a constant readiness on the part of those who have the knowledge to impart it, and a matching willingness on the part of all concerned to receive it and act on it.
Revocation of a Credit UCP 500 Article 8 Revocation of a Credit and UCP 500 Sub-article 6 (b) Revocable v. Irrevocable Credits UCP 600 does not contain any reference to the issuing or handling of revocable credits due to their minimal usage today. For a bank to issue a revocable credit in the future, they have two options: To issue the credit subject to UCP 600, but include a specific condition that the credit is revocable and include the full conditions relating to the revocability and handling of the credit which will, invariably, come down to incorporation of the basic conditions expressed in article 8 of UCP 500. To issue the credit subject to UCP 500; provided all parties are in agreement to the usage of those rules.
Reserve or Indemnity UCP 500 Sub (f) Discrepant Documents and Notice
a rticle 14
Whether a nominated bank has honoured or negotiated under reserve or indemnity is of no concern to an issuing bank or confirming bank as it does not affect or influence their determination as to whether or not they will refuse or take up documents. UCP 500 sub-article 14 (f) If the remitting bank draws the attention of the Issuing Bank and/or Confirming Bank, if any, to any discrepancy(ies) in the document(s) or advises such banks that it has paid, incurred a deferred payment undertaking, accepted Draft(s) or negotiated under reserve or against an indemnity in respect of such discrepancy(ies), the Issuing Bank and/or Confirming Bank, if any, shall not be thereby relieved from any of their obligations under any provision of this Aritcle. Such reserve or indemnity concerns only the relations between the remitting bank and the party towards whom the reserve was made, or from whom, or on whose behalf, the indemnity was obtained. UCP 600 does not contain an equivalent of sub-article 14 (f).
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Freight Payable/Prepaid UCP 500 Sub-articles 33 (a), (b-part), (c) and (d-part) Freight Payable/Prepaid Transport Documents
Article 33 of UCP 500 contained information as to how the status of freight costs were to be shown on transport documents and took the view that credits may not be precise in this respect. When issuing a credit, a bank would invariably indicate whether a transport document is to evidence that freight is to be prepaid or payable at destination. Failing this, a credit would indicate the applicable Incoterm which by its definition will imply whether freight is to be prepaid i.e. CFR or CIF or payable at destination i.e. FOB or FCA. 46A: Documents Required COMMERCIAL INVOICE IN 1 ORIGINAL AND 3 COPIES PACKING LIST IN 4 COPIES FULL SET CLEAN ON BOARD OCEAN BILLS OF LADING ISSUED TO ORDER OF ORIGINAL BANK LTD, HONG KONG MARKED NOTIFY ACME DIESEL ENGINE COMPANY, UPPER STREET, UPPER BAY, HONG KONG AND FREIGHT PREPAID CERTIFICATE OF UK ORIGIN 45A: Description of Goods and/or Services 4 MARK 3 DIESEL ENGINES FOR AGRICULTURAL USE TOGETHER WITH SPARE PARTS FOR 12 MONTHS AS PER PROFORMA INVOICE 123456 DATED JUNE 1, 2007, CIF HONG KONG
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Freight Payable/Prepaid UCP 500 Sub-articles 33 (a), (b-part), (c) and (d-part) Freight Payable/Prepaid Transport Documents (contd) The content of sub-article 33 (c) was seen as stating the obvious in that prepayable or to be prepaid clearly do not indicate that freight has been paid and a rule is not necessary to reflect this position. Sub-article 33 (d) is now re-phrased and appears at sub-article 26 (c) of UCP 600 as A transport document may bear a reference, by stamp or otherwise, to charges additional to the freight. The position concerning transport documents evidencing costs additional to freight is covered further in the transport section of the ISBP.
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Expiry Date UCP 500 Sub-article 42 (c) Expiry Date and Place for Presentation of Documents
UCP 500 sub-article 42 (c) If an Issuing Bank states that the Credit is to be available for one month, for six months or the like, but does not specify the date from which the time is to run, the date of issuance of the Credit by the Issuing Bank will be deemed to be the first day from which such time is to run. Banks should discourage indication of the expiry date of the Credit in this manner. The requirement of sub-article 6 (d) (i) of UCP 600 is that a credit must state an expiry date for presentation. Having stated a rule that a credit must have an expiry date it is not deemed necessary to provide options for determining an expiry date where the information is vague or unclear as from when a period would commence. Such an occurrence would be deemed to be an unworkable credit and the issuing bank should be requested to provide a definitive date of expiry.
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Dates for Shipment UCP 500 Sub-article 46 (a) General Expressions as to Dates for Shipment UCP 500 sub-article 46 (a) Unless otherwise stipulated in the Credit, the expression shipment used in stipulating an earliest and/or a latest date for shipment will be understood to include expressions such as, loading on board, dispatch, accepted for carriage, date of post receipt, date of pick-up, and the like, and in the case of a Credit calling for a multimodal transport document the expression taking in charge. Sub-article 46 (a) of UCP 500 has been omitted from UCP 600 as the transport document articles (articles 19-25) include the expressions such as shipped on board, taking in charge, dispatch, that are relevant to each of those transport documents linking them to a definition of the date of shipment.
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2 3 9 12 15 17
Definitions Interpretations Advising of Credits and Amendments Nomination Complying Presentation Original Documents and Copies
14
15
16
19
Where applicable, words in the singular include the plural and in the plural include the singular. A credit is irrevocable even if there is no indication to that effect. Branches of a bank in different countries are considered to be separate banks. Unless required to be used in a document, words such as prompt, immediately or as soon as possible will be disregarded article 46 of UCP 500 made reference to these terms but only in relation to general expressions as to the dates for shipment. ISBP widened the application to any usage of these terms. UCP 600 adopts the same stance as ISBP but creates a caveat where the credit may require the word or words to appear within a document i.e. within a certification made by a beneficiary. The words from and after when used to determine a maturity date exclude the date mentioned UCP 500 covered the issue of from and after but only in relation to the date terminology for periods of shipment. There are two separate interpretations in relation to the word from in article 3 of UCP 600. For maturity date calculation, it excludes the date mentioned but for determination of periods of shipment, it includes the date mentioned.
20
An issuing bank should discourage any attempt by the applicant to include, as an integral part of the credit, copies of the underlying contract, proforma invoice and the like.
UCP 500 Article 3 a. Credits, by their nature are separate transactions from the sales or other contract(s) on which they may be based and banks are in no way concerned with or bound by such contract(s), even if any reference whatsoever to such contract(s) is included in the Credit. Consequently, the undertaking of a bank to pay, accept and pay Draft(s) or negotiate and/or to fulfil any other obligation under the Credit, is not subject to claims or defences by the Applicant resulting from his relationships with the Issuing Bank of the Beneficiary. b. A Beneficiary can in no case avail himself of the contractual relationships existing between the banks or between the Applicant and the Issuing Bank.
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24
Same principle in Article 6(b) Always available with issuing bank Freely available credits as opposed to freely negotiable Stronger wording must not and no reference to additional document
UCP 500 sub-Articles 10(a) and (b)(i) All Credits must clearly indicate whether they are available by sight payment, by deferred payment, by acceptance or by negotiation Unless the Credit stipulates that it is available only with the Issuing Bank, all Credits must nominate the bank (the Nominated Bank) which is authorised to pay, to incur a deferred payment undertaking, to accept Draft(s) or to negotiate. In a freely negotiable Credit any bank is a Nominated Bank. UCP 500 sub-Articles 9(a)(iv) and 9(b)(iv) A Credit should not be issued available by Draft(s) on the Applicant. If the Credit nevertheless calls for Draft(s) on the Applicant, banks will consider such Draft(s) as an additional document(s).
25
Covered in Article 6(d)(i) and (ii) A place other than the issuing bank includes the place of the issuing bank Covered in Article 6(e)
UCP 500 sub-Articles 42(a) and (b) a. All Credits must stipulate an expiry date and a place for presentation of documents for payment, acceptance, or with the exception of freely negotiable Credits, a place for presentation of documents for negotiation. An expiry date stipulate for payment, acceptance or negotiation will be construed to express an expiry date for presentation of documents. b. Except as provided in sub-Article 44(a), documents must be presented on or before such expiry date.
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Availability
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Introduction
The primary function of a letter of credit is to provide payment security for an international trade transaction coupled with the opportunity for banks to provide financing thereunder. UCP 600 has specific rules as to how credits can be made available with banks to facilitate payment and permit financing.
28
Available With
Under UCP 600 a credit may be issued stating that it is available with the issuing bank or with a nominated bank. Article 2 of UCP 600 defines nominated bank. UCP 600 article 2 definition Nominated bank means the bank with which the credit is available or any bank in the case of a credit available with any bank. Where a credit is available with a nominated bank, the presentation of documents by or on behalf of the beneficiary will typically be made to that nominated bank, however, documents may be presented directly to an issuing bank.
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Available By
A credit may be made available with a nominated bank: By sight payment (Draft is optional) By deferred payment (Draft not required) By acceptance (Draft required) By negotiation (Draft is optional) A credit may be made available with an issuing bank: By sight payment (Draft is optional) By deferred payment (Draft not required) By acceptance (Draft required) A credit cannot be available with an issuing bank by negotiation Where a credit is available by sight payment or negotiation, the use of a draft is optional and it is for the issuing bank and applicant to decide at the time of issuance of the credit whether or not a draft is needed. Credit available by sight payment (Draft is optional) Credit available by negotiation (Draft is optional) A credit must not be made available by sight payment, acceptance or negotiation with a draft drawn on the applicant.
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Nominated Bank
In nominating a bank to pay, incur a deferred payment undertaking, accept a draft or negotiate, an issuing bank authorizes that nominated bank to honour or negotiate upon receipt of a complying presentation. A nominated bank is under no obligation to honour or negotiate unless it has added its confirmation to the credit or it has expressly communicated to the beneficiary its agreement to honour or negotiate. Where a nominated bank honours or negotiates under a complying presentation, an issuing bank undertakes to reimburse them.
31
Honour
Article 2 of UCP 600 defines how credits can be settled by honour or negotiation. UCP 600 article 2 definition Honour means: To pay at sight if the credit is available by sight payment.
To incur a deferred payment undertaking and pay at maturity if the credit is available by deferred payment. To accept a bill of exchange (draft) drawn by the beneficiary and pay at maturity if the credit is available by acceptance.
32
Negotiation
UCP 600 article 2 definition Negotiation means the purchase by the nominated bank of drafts (drawn on a bank other than the nominated bank) and/or documents under a complying presentation, by advancing or agreeing to advance funds to the beneficiary on or before the banking day on which reimbursement is due to the nominated bank. If a nominated bank with which a credit is available by negotiation examines documents, determines compliance but does not advance funds or agree to advance funds to the beneficiary, then that nominated bank has not negotiated as defined by UCP 600.
33
Confirmation
UCP 600 article 2 definition Confirmation means a definite undertaking of the confirming bank, in addition to that of the issuing bank, to honour or negotiate a complying presentation. UCP 600 sub-article 8 (b) A confirming bank is irrevocably bound to honour or negotiate as of the time it adds its confirmation to the credit. In most cases a confirming bank will be a nominated bank but this is not always the case.
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Prepay or Purchase
When a nominated bank, acting on its nomination, a confirming bank, if any or an issuing bank receives a complying presentation under a credit available by deferred payment, it incurs a deferred payment undertaking and pays at maturity. When a nominated bank, acting on its nomination, a confirming bank, if any or an issuing bank receives a complying presentation under a credit available by acceptance, it accepts the bill of exchange and pays at maturity. Sometimes the beneficiary may wish to receive funds in advance of the maturity or due date and request the nominated or issuing bank to prepay or purchase an accepted draft or a deferred payment undertaking. UCP 600 sub-article 12 (b) is a new rule that states where a credit is issued available by acceptance or deferred payment such issuance provides an implicit authority from an issuing bank to a nominated bank to prepay or purchase a draft accepted or a deferred payment undertaking incurred by the nominated bank. Article 7 Issuing Bank Undertaking and Article 8 Confirming Bank Undertaking clarify that reimbursement for the amount of a complying presentation is due at maturity whether or not the nominated bank prepaid or purchased.
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Definition of credit An issuing bank honours it does not negotiate Refined wording to reflect the position if a nominated bank does not act (as shown in next slide)
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iv. v.
Covered in Article 6(c) Issuing bank irrevocable bound to honour as of time of issuance Reimbursement condition appears in Article 7(c) Reimbursement due whether or not Draft or DP Undertaking prepaid or purchased see Article 12
UCP 500 sub-Article 9(a) iv. if the Credit provides for negotiation to pay without recourse to drawers and/or bonafide holders, Draft(s) drawn by the Beneficiary and/or document(s) presented under the Credit. A Credit should not be issued available by Draft(s) on the Applicant. If the Credit nevertheless calls for Draft(s) on the Applicant, banks will consider such Draft(s) as an additional document(s). UCP 500 sub-Article 10(d) By nominating another bank, or by allowing for negotiation by any bank, or by authorising or requesting another bank to add its confirmation, the Issuing Bank authorises such bank to pay, accept Draft(s) or negotiate as the case may be, against documents which appear on their face to be in compliance with the terms and conditions of the Credit and undertakes to reimburse such bank in accordance with the provisions of these Articles.
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Definition of confirmation and confirming bank Confirming bank honours or negotiates Confirming bank is irrevocably bound to honour or negotiate as of time it adds confirmation Reimbursement due whether or not Draft or DP Undertaking purchased or prepaid
UCP 500 sub-Article 9(b) b. A confirmation of an irrevocable Credit by another bank (the Confirming Bank) upon the authorisation or request of the Issuing Bank, constitutes a definite undertaking of the Confirming Bank, in addition to that of the Issuing Bank, provided that the stipulated documents are presented to the Confirming Bank or to any other Nominated Bank and that the terms and conditions of the Credit are complied with:
i. ii. if the Credit provides for sight payment to pay at sight; if the Credit provides for deferred payment to pay on the maturity date(s) determinable in accordance with the stipulations of the Credit; if the Credit provides for acceptance: a. by the Confirming Bank to accept Draft(s) drawn by the Beneficiary on the Confirming Bank and pay them at maturity, or
iii.
40
Covered in Article 6 (c) Reflects position if a nominated bank does not act (see slide where NOTE mentioned same principle for Article 8 Confirming Bank Undertaking) Nominated bank may or may not be a confirming bank Refined wording in Article 8 (d)
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Concept of 2nd advising bank Bank now satisfies itself as to the apparent authenticity Advice of credit or amendment accurately reflects the terms and conditions of the credit or amendment Now appears in Article 9(d)
b.
42
Covered in Article 10(c) Advice of acceptance or rejection to be advised Partial acceptance of an amendment = rejection Time limits for acceptance or rejection will be disregarded
UCP 500 sub-Article 9(d) iii. The terms of the original Credit (or a Credit incorporating previously accepted amendment(s) will remain in force for the Beneficiary until the Beneficiary communicates his acceptance of the amendment to the bank that advised such amendment. The Beneficiary should give notification of acceptance or rejection of amendment(s). If the beneficiary fails to give such notification, the tender of documents to the Nominated Bank or Issuing Bank, that conform to the Credit and to not yet accepted amendment(s), will be deemed to be notification of acceptance by the Beneficiary of such amendment(s) and as of that moment the Credit will be amended. iv. Partial acceptance of amendments contained in one and the same advice of amendment is not allowed and consequently will not be given any effect.
44
Teletransmitted and PreAdvised Credits and Amendment Revised text to remove the should a mail confirmation nevertheless be sent Where a mail confirmation is the operative instrument, it must be issued in terms not inconsistent with the teletransmission
45
Covered in Article 9(d) Revised and shortened text appears in Article 11(b)
c.
46
Covered in Article 12(c) but widened to include honour Covered in Article 12(a) referencing honour or negotiation For new Article 12(b) see next slide
47
Principle in Article 13(a) is that the credit and reimbursement authorisation must reference URR or Article 13(b) will apply Reimbursement authorisation subject to Article 13(b) must not include an expiry date to bring in line with URR
b.
c.
d.
49
Article 13(b)(iv) states that reimbursing bank charges are for account of the issuing bank. If they are for account of beneficiary it must be clearly indicated in the credit and the reimbursement authorisation
50
Applicable banks defined On their face sole reference here Definition: complying presentation Check on the basis of documents alone Covered in Article 14(d) see next slide Covered in Article 14(g)
51
Article 14(d): Data in a document, when read in context with the credit, the document itself and international standard banking practice, need not be identical to, but must not conflict with, data in that document, any other stipulated document or the credit.
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Removal of reasonable time Maximum of 5 banking days Period of 5 banking days not subject to any upcoming event Covered in Article 14(h)
c.
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Covered in Article 14(f) Document must appear to fulfil its function Principle extended to a document may be dated no later than the date of its presentation
Article was not deemed to be necessary as UCP does not define who has to issue the transport document. Covered in Article 14(l) Covered in Article 14(k) and widened to any document
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Second sentence removed from Commercial Invoice Article and appears at Article 14(e) Default of 21 days applies where there is an original transport document to be presented
UCP 500 sub-Article 37(c) The description of the goods in the commercial invoice must correspond with the description in the Credit. In all other documents, the goods may be described in general terms not inconsistent with the description of the goods in the Credit. UCP 500 sub-Article 43(a) In addition to stipulating an expiry date for presentation of documents, every Credit which calls for a transport document(s) should also stipulate a specified period of time after the date of shipment during which presentation must be made in compliance with the terms and conditions of the Credit. If no such period of time is stipulated, banks will not accept documents presented to them later than 21 days after date of shipment. In any event, documents must be presented not later than the expiry date of the Credit.
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Introduction
UCP 600 sub-article 14 (a) provides the standard for examination of documents. UCP 600 sub-article 14 (a) A nominated bank acting on its nomination, a confirming bank, if any, and the issuing bank must examine a presentation to determine, on the basis of the documents alone, whether or not the documents appear on their face to constitute a complying presentation. A complying presentation is defined in article 2 of UCP 600. UCP 600 article 2 definition Complying presentation means a presentation that is in accordance with the terms and conditions of the credit, the applicable provisions of these rules and international standard banking practice. It should be noted that reference in this definition to international standard banking practice is not confined to the practices detailed in the ICC Publication of the same name. By inclusion in sub-article 14 (a) of the reference to appear on their face, it is now deemed that there is no need for similar reference in the articles covering transport, insurance or commercial invoice as was the case in UCP 500.
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Documents Alone
The document checker must decide on the basis of the documents alone whether or not the documents constitute a complying presentation. For example: The actual quality of goods received by the applicant even if not of merchantable quality is not a consideration for the document checker, who must determine compliance based on the documents alone as stated in sub-article 14 (a) of UCP 600. This point is emphasized by article 5 of UCP 600 which makes it clear that banks deal with documents and not with goods, services or performance to which the documents may relate.
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5 Banking Days
An issuing bank, a confirming bank or a nominated bank acting on its nomination, each have a maximum number of days in which to examine the documents and determine if the presentation complies. This maximum number of days is 5 banking days following the day of presentation. As defined in article 2 of UCP 600: UCP 600 article 2 definition Presentation means either the delivery of documents under a credit to the issuing bank or nominated bank or the documents so delivered. It should be noted that in addition to the maximum number of days being reduced from 7 to 5 banking days following the day of presentation, the concept of reasonable time has been removed. Despite this removal of reference to reasonable time it is still expected that banks will not in all cases utilize the maximum number of days allowed by the rules. This position is emphasized by the content of article 15 of UCP 600 which states that when a bank determines that a presentation is complying it must honour or negotiate.
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Documents Required
The document checker must examine all documents required by the terms and conditions of the credit. If the presentation contains a document that is not required by the credit, UCP 600 sub - a rticle 14 (g) states that document will be disregarded and may be returned to the presenter. Furthermore, UCP 600 sub - a rticle 14 (h) states if a credit contains a condition without stipulating the document to indicate compliance with the condition, banks will deem such condition as not stated and will disregard it.
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Date of Issuance
UCP 600 sub-article 14 (i) makes it clear that documents may be dated prior to the issuance date of the credit, but must not be dated later than its date of presentation. Example: Date of Issue: 070702 Date of Presentation: July 25 2007 Date of Invoice: July 1 2007 Date of Packing List: July 27 2007 In this presentation the invoice is dated prior to the issuance date but the packing list is dated after the date of presentation. The invoice complies with subarticle 14 (i). The packing list does not. In simple terms, a document may be dated any date upto and including the date of its presentation.
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Addresses
Under UCP 500 there was some confusion as to whether the addresses of the beneficiary and the applicant as shown on the documents presented were to be identical to those stated in the credit. UCP 600 now states specifically that the addresses of the beneficiary and the applicant in any document need not be the same as those stated in the credit or in any other stipulated document, but must be within the same country as the respective addresses shown in the credit. There is however one exception and this relates to the situation where the address of the applicant is to appear as part of the consignee or notify party details on a transport document subject to articles 19 to 25. Sub-article 14 (j) states that when the address and the contact details of the applicant appear as part of the consignee or notify party details in a transport document they must be as stated in the credit.
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Contact Details
In the past, document checkers have examined documents to determine that contact information such as telefax, telephone and email addresses are in compliance with those stated in the credit. UCP 600 sub-article 14 (j) removes the need to review contact information by expressly stating that contact details shown as part of the beneficiary or applicant addresses in the credit will be disregarded.
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Other Documents
UCP 600 has specific articles that guide the document checker in determining compliance for: Transport documents articles 19 to 25 Insurance documents article 28 Commercial invoice article 18 However, if a credit requires presentation of a document other than these, without stipulating by whom the document is to be issued or its data content, banks will accept the document as presented if its content appears to fulfil the function of the required document and otherwise complies with UCP 600. Examples of how a document would fulfil its function include: A certificate of origin showing the origin of the goods An inspection certificate indicating that the goods have been inspected
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Data in a Document
UCP 600 makes it clear that when checking documents the data does not have to be identical. The essential requirement under UCP 600 sub - a rticle 14 (d) is that data in a document, when read in context with the credit, the document itself and international standard banking practice, need not be identical to, but must not conflict with, data in that document, any other stipulated document or the credit.
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Consignor
UCP 600 sub-article 14 (k) states that the shipper or consignor of the goods indicated on any document need not be the beneficiary of the credit. In UCP 500 this provision applied only to transport documents, UCP 600 widens the scope beyond transport documents to any document that may contain a shipper or consignor field.
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21 Calendar Days
In addition to the document checker establishing that the presentation has been made within the expiry date of the credit, there is a need to ensure that the documents have been presented within the specified period of presentation after the date of shipment. A credit should specify the number of days after shipment within which presentation is to be made. In the absence of such indication in the credit, UCP 600 sub-article 14 (d) provides a default position of 21 calendar days after the date of shipment as evidenced on the transport document. It should be noted that the default position of 21 days after the date of shipment applies where the credit calls for the presentation of one or more original transport documents subject to articles 19 to 25 of UCP 600. For credits calling for copies of such transport documents or transport documents not covered by the UCP, the credit must make specific reference to the number of days within which presentation is to be made.
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Applicable banks defined Removal of on their face ....may refuse to honour or negotiate
b.
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Applicable banks defined Maximum of 5 banking days following day of presentation Notice must state (1) bank refuses, (2) each discrepancy and (3) status of the handling of documents see next slide
d.
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Covered in Article 16(g) Covered in Article 16(f) If a bank has provided a notice of refusal and chosen (a) or (b), it may return the documents at any time
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This is not included in UCP 600. This is considered to be a matter between beneficiary and the nominated bank. A confirming or issuing bank still makes a decision on the documents based on Articles 14 and 16.
UCP 500 Article 14 f. If the remitting bank draws the attention of the Issuing Bank and/or Confirming Bank, if any, to any discrepancy(ies) in the document(s) or advises such banks that it has paid, incurred a deferred payment undertaking, accepted Draft(s) or negotiated under reserve or against an indemnity in respect of such discrepancy(ies), the Issuing Bank and/or Confirming Bank, if any, shal not be thereby relieved from any of their obligations under any provision of this Article. Such reserve or indemnity concerns only the relations between the remitting bank and the party towards whom the reserve was made, or from whom, or on whose behalf, the indemnity was obtained.
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Introduction
Article 16 of UCP 600 provides that when a bank determines that the documents do not comply, it may refuse to honour or negotiate. The issuing bank having determined that a presentation does not comply may: Provide a notice of refusal to the presenter It may decide, in its sole judgement, to contact the applicant for a waiver of the discrepancies subject to the presenter having not provided any instructions to the contrary.
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Giving Notice
When a bank decides to refuse to honour or negotiate, it must give a single notice to that effect to the presenter. This notice must be sent: By telecommunication or other expeditious means But in any event no later than the close of fifth banking day following the day of presentation. The issuing bank must be aware that the act of contacting the applicant for a waiver does not extend the period of five banking days following the day of presentation for providing a notice of refusal to the presenter.
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Notice of Refusal
When a bank decides to refuse to honour or negotiate, the creation and content of its notice of refusal are of critical importance. Sub-article 16 (c) provides banks with specific direction as to the required content of a notice of refusal. The notice must state: That the bank is refusing to honour or negotiate Each discrepancy in respect of which the bank refuses to honour or negotiate
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Returning Documents
Sub-article 16 (e) makes it clear that once the bank has given a notice of refusal, it may return the documents to the presenter at any time. UCP 600 sub-article 16 (e) A nominated bank acting on its nomination, a confirming bank, if any, or the issuing bank may, after providing notice required by sub-article 16 (c) (iii) (a) or (b), return the documents to the presenter at any time. In these circumstances it is expected that a bank will not return the documents without prior notice but it is important to remember that the bank has the right to merely return them.
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Preclusion Rule
If an issuing bank or confirming bank fail to give a notice of refusal in accordance with article 16, it will be precluded from claiming that the presentation does not comply and must honour or negotiate. UCP 600 sub-article 16 (f) If an issuing bank or a confirming bank fails to act in accordance with the provisions of this article, it shall be precluded from claiming that the documents do not constitute a complying presentation.
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Reimbursement
When an issuing bank or confirming bank has given its notice of refusal in accordance with article 16, it shall be entitled to claim refund with interest of any reimbursement previously made. UCP 600 sub - a rticle 16 (g) When an issuing bank refuses to honour or a confirming bank refuses to honour or negotiate and has given notice to that effect in accordance with this article, it shall then be entitled to claim a refund, with interest, of any reimbursement made.
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Reserve or Indemnity
Article 16 of UCP 600 does not contain an equivalent rule to that of sub-article 14 (f) of UCP 500. UCP 500 sub-article 14 (f) If the remitting bank draws the attention of the Issuing Bank and/or Confirming Bank, if any, to any discrepancy(ies) in the document(s) or advises such banks that it has paid, incurred a deferred payment undertaking, accepted Draft(s) or negotiated under reserve or against an indemnity in respect of such discrepancy(ies), the Issuing Bank and/or Confirming Bank, if any, shall not be thereby relieved from any of their obligations under any provision of this Article. Such reserve or indemnity concerns only the relations between the remitting bank and the party towards whom the reserve was made, or from whom, or on whose behalf, the indemnity was obtained.
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Based on concept in ICC Decision of Original Documents Article 17(a) makes clear that at least one of each document must be an original
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Article 17(d) states that copies will be satisfied by either originals or copies (copies would include photocopies) Covered in Article 17(e) with emphasis on presentation of at least one original....
UCP 500 sub-Article 20(c) i. Unless otherwise stipulated in the Credit, banks will accept as a copy(ies), a document(s) either labelled copy or not marked as an original a copy(ies) need not be signed. ii. Credits that require multiple document(s) such as duplicate, two fold, two copies and the like, will be satisfied by the presentation of one original and the remaining number in copies except where the document itself indicates otherwise.
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Definition of beneficiary Definition of applicant New (iii) stating that invoice must be in the same currency as the credit Old (iii) becomes (iv)
UCP 500 Article 37 a. Unless otherwise stipulated in the Credit, commercial invoices:
i. must appear on their face to be issued by the Beneficiary named in the Credit (except as provided in Article 48), and ii. must be made out in the name of the Applicant (except as provided in sub-Article 48(h)), and iii. need not be signed.
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Emphasis is changed that banks may accept an invoice for a greater value, provided it has not honoured or negotiated for an amount in excess of the credit Covered in Article 18(c) with second sentence now appearing in Article 14(e)
UCP 500 Article 37 b. Unless otherwise stipulated in the Credit, banks may refuse commercial invoices issued for amounts in excess of the amount permitted by the Credit. Nevertheless, if a bank authorised to pay, incur a deferred payment undertaking, accept Draft(s), or negotiate under a Credit accepts such invoices, its decision will be binding upon all parties, provided that such bank has not paid, incurred a deferred payment undertaking, accepted Draft(s) or negotiated for an amount in excess of that permitted by the Credit. c. The description of the goods in the commercial invoice must correspond with the description in the Credit. In all other documents, the goods may be described in general terms not inconsistent with the description of the goods in the Credit.
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Article 1 exclude or modify Indicate name of carrier On its face No reference to MTO carrier or master only Authentication removed Consistent signing and capacity details No name of master
91
Contains the indication intended or similar qualification in relation to the vessel and/or port of loading and/or port of discharge, and
92
93
v.
No reference to sail
vi.
vii.
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95
c.
Article 1 exclude or modify On its face Indicate the carrier see next slide Authentication removed Consistent signing and capacity details No name of master At the port of loading stated in the credit
ii.
97
Any signature by the carrier, master or agent must be identified as that of the carrier, master or agent. Any signature by an agent must indicate whether the agent has signed for or on behalf of the carrier or for or on behalf of the master. NOTE: consistent style for all transport articles
98
99
b.
100
v.
vi.
vii.
101
Covered in revised Article 20(b), (c) and (d) see next slide
c.
d.
102
103
Bill of Lading
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Introduction
When a credit requires port to port shipment, a bill of lading will be presented. In addition to reviewing the bill of lading against the terms and conditions of the credit, the document checker will also need to refer to article 20 of UCP 600. We will examine article 20 Bill of Lading.
105
However Named
UCP 600 sub-article 20 (a) states that when a credit calls for a bill of lading, a bill of lading is acceptable however named. For example, if the credit calls for an Ocean Bill of Lading and the document presented is named Liner Bill of Lading this would comply.
106
Shipped On Board
The bill of lading must indicate that the goods have been shipped on board a named vessel at the port of loading stated in the credit. Shipped on board may be evidenced by a pre-printed wording to that effect. In this case the date of issue of the bill of lading is deemed to be the date of shipment. Alternatively, shipped on board may be evidenced by an on board notation indicating the date of shipment. In this case the date indicated in the on board notation will be taken as the date of shipment. The date indicated in the on board notation will be taken as the date of shipment irrespective of whether this date is before or after the date of issuance of the bill of lading.
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Intended Vessel
Sometimes a bill of lading is not specific as to the name of the vessel and may indicate an intended vessel or similar qualification. Sub-article 20 (a) (ii) states that if the bill of lading contains the indication intended vessel or similar qualification in relation to the name of the vessel, an on board notation indicating the date of shipment and the name of the actual vessel is required. This is required even if the name of the actual vessel on which the goods have been shipped is the one stated in the bill of lading as the intended vessel.
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Port of Loading
The port of loading in a bill of lading should be the same as that stated in the credit. It can happen that the bill of lading evidences a port of loading that is not the same as that indicated in the credit or has a qualification such as intended port of loading. In this event, the bill of lading must contain an on board notation which includes the port of loading indicated in the credit, the date of shipment and the name of the vessel.
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Original(s)
Bills of lading are issued in sets of one or more originals usually 3. UCP 600 sub-article 20 (a) (iv) states that if the credit calls for a bill of lading then the bill of lading presented must be the sole original bill of lading or, if issued in more than one original, be the full set as indicated on the bill of lading.
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Charter Party
A charter party is a contract under which the owner of a ship hires it to another party for a specific time or purpose. In such an event the bill of lading should make reference to the fact that it is subject to a charter party. UCP 600 sub-article 20 (a) (vi) stipulates that for a bill of lading to be acceptable under article 20, it must not appear to contain an indication that it is subject to a charter party.
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Transhipment
During a port-to-port shipment, transhipment will often occur. UCP 600 sub-article 20 (b) provides a definition of transhipment where a bill of lading is presented. UCP 600 sub-article 20 (b) For the purpose of this article, transhipment means unloading from one vessel and reloading to another vessel during the carriage from the port of loading to the port of discharge stated in the credit. Generally, credits will indicate whether transhipment is allowed or not. if a credit does not contain any condition in relation to transhipment, then transhipment is allowed. Even if a credit prohibits transhipment a bill of lading indicating that transhipment will or may take place is acceptable, provided the bill of lading indicates that the goods have been shipped in containers, trailers or LASH barges.
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115
Changed opening containing an indication it is subject to a charter party On its face Authentication removed New capacity/signer = Charterer No name of master
Any signature or authentication of the master or owner must be identified as master of owner as the case may be. An agent signing or authenticating for the master or owner must also indicate the name and the capacity of the party, i.e. master or owner, on whose behalf that agent is acting, and
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No equivalent in Article 22 ....at the port of loading stated in the credit.... Covered in Article 22(a)(ii)
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Geographical or region as port of discharge is acceptable Reference to sail is deleted Not necessary due to definition of complying presentation Refined text in Article 22(b) A bank will not examine charter party contracts, even if they are required to be presented by the terms of the credit.
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Article 1 exclude or modify On its face Authentication removed Indicate the name of the carrier Signing capacities shown in Article 23(a)(i) Covered in Article 23(a)(ii)
ii.
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Date in a notation = date of shipment (whether requested by the credit or not) Any other information outside the notation, will not be considered for determining the date of shipment Covered in Article 22(a)(iv)
iv.
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Covered in Article 23(a)(v) Covered in Article 23(a)(vi) Not necessary due to definition of complying presentation
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c.
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124
Introduction
When a credit requires a transport document covering shipment from an airport to an airport, an air transport document will be presented. In addition to reviewing the air transport document against the terms and conditions of the credit, the document checker will also need to refer to article 23 of UCP 600. We will examine article 23 Air Transport Document.
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However Named
UCP 600, sub-article 23 (a) states that when a credit calls for an air transport document, then an air transport document is acceptable however named. For example, if the credit calls for an Air Waybill and the document presented is named Air Consignment Note this would comply.
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Date of Shipment
The air transport document must indicate that the goods have been accepted for carriage and indicate a date of issuance. For example, an air transport document was issued on the 10th of August. Thus, 10th of August will be deemed to be the date of shipment unless the air transport document contains a specific notation of the actual date of shipment. In this event, the date stated in the notation, for example, 9th of August, then 9th of August will be deemed to be the date of shipment. If a specific notation exists on the air transport document, the date of shipment will be the date appearing in the notation i.e. 9th August.
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Airports Indicated
UCP 600, sub-article 23 (a) (iv) stipulates that an air transport document must indicate the airport of departure and the airport of destination stated in the credit.
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131
Transhipment
During the air transport of goods from an airport of departure to the airport of destination, transhipment will often occur. UCP 600 sub-article 23 (b) provides a definition of transhipment where an air transport document is presented. UCP 600 sub-article 23 (b) For the purpose of this article, transhipment means unloading from one aircraft and reloading to another aircraft during the carriage from the airport of departure to the airport of destination stated in the credit. Generally, credits will indicate whether transhipment is allowed or not. If a credit does not contain any condition in relation to transhipment, then transhipment is allowed. Even if a credit prohibits transhipment, an air transport document indicating that transhipment will or may take place is acceptable, provided that the entire carriage is covered by one and the same air transport document.
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Article 1 exclude or modify On its face Authentication removed Article 24(a)(i) outlines the signing requirements and capacity identification
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Revised wording to capture reception stamp, date of receipt or date of shipment Covered in Article 24(a)(iii) Not required due to definition of complying presentation Covered in Article 24(c)
iii. iv. b.
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ii. iii.
Changed to reflect transhipment must occur within the same mode otherwise Article 19 applies Covered in Article 24(e) see next slide
d.
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ii.
138
a.
Article 25(c) covers the dispatch by post Not necessary due to definition of complying presentation
If a Credit calls for a post receipt or certificate of posting, banks will, unless otherwise stipulated in the Credit, accept a post receipt or certificate of posting which:
i. appears on its face to have been stamped or otherwise authenticated and dated in the place from which the Credit stipulates the goods are to be shipped or dispatched and such date will be deemed to be the date of shipment or dispatch, and in all other respects meets the stipulations of the Credit.
ii.
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Removal of expedited delivery service Covering receipt of goods for transport Article 1 exclude or modify On its face Authentication removed Not necessary due to definition of complying presentation
Article 1 exclude or modify Change of emphasis in opening sentence A bank will only accept a clean transport document Covered in Article 26(b) Covered in Article 26(c)
Addition: A bank will only accept a clean transport document The word clean need not appear on a transport document Not necessary due to definition of complying presentation
b.
c.
142
Insurance documents are described including declaration under open cover Agents or proxies Signing conditions similar to transport documents No cover notes accepted
b.
c. d.
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Covered in Article 28(e) New condition LC stating insurance for 110% = minimum of insurance coverage Covered in Article 28(f)(ii) Article 28(f)(iii) insurance must be covered at least between the two places/ports/airports stated in the credit
f.
144
b.
c.
Where a Credit stipulates insurance against all risks, banks will accept an insurance document which contains any all risks notation or clause, whether or not bearing the heading all risks, even if the insurance document indicates that certain risks are excluded, without responsibility for any risk(s) not being covered.
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147
Introduction
Three different types of insurance documents are typically issued to cover the risks of goods being lost, damaged or stolen during international transport, these are: Insurance policies Insurance certificates Declarations under open cover When checking these documents under credits to establish compliance, document checkers will refer to article 28 of UCP 600. We will examine article 28 of UCP 600 Insurance Documents and Coverage which is an amalgamation of articles 34, 35 and 26 of UCP 500.
148
Number of Originals
As in the case of transport documents, insurance documents can be issued in one or more originals. Sub - a rticle 28 (b) of UCP 600 makes it clear that when the insurance document indicates that it has been issued in more than one original, all originals must be presented. If there is no indication of the number of originals issued, only one original must be presented.
150
Cover Note
Cover notes, such as those issued by an insurance broker, evidence insurance cover approval, however, they are not formal insurance documents, such as an insurance policy, an insurance certificate or a declaration under an open cover. Sub-article 28 (c) of UCP 600 makes it clear that cover notes will not be accepted by banks under a credit. UCP 600 sub-article 28 (c) Cover notes will not be accepted
151
Insurance Policy
An insurance policy is a contract of insurance cover. It provides full details of the insurance between the insurance company or underwriter and the insured party. Insurance certificates or a declaration under open cover do not contain full details of the insurance contract but are issued in respect of a shipment undertaken during the life of an insurance policy. UCP 600 sub-article 28 (d) An insurance policy is acceptable in lieu of an insurance certificate or a declaration under an open cover.
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155
Exclusions
UCP 600, sub-article 28 (h) states when a credit requires insurance against all risks and an insurance document is presented containing any all risks notation or clause, whether or not bearing the heading all risks, the insurance document will be accepted without regard to any risks stated to be excluded. Sub-article 28 (i) stipulates that an insurance document may contain reference to any exclusion clause. Sub-article 28 (j) states that an insurance document may indicate that the cover is subject to a franchise or excess (deductible).
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No material change from UCP 500 Covered in Article 29(a) Covered in Article 29(c) Covered in Article 29(b)
UCP 500 Article 44 a. If the expiry date of the Credit and/or the last day of the period of time for presentation of documents stipulated by the Credit or applicable by virtue of Article 43 falls on a day on which the bank to which presentation has to be made is closed for reasons other than those referred to in Article 17, the stipulated expiry date and/or the last day of the period of time after date of shipment for presentation of documents, as the case may be, shall be extended to the first following day on which such bank is open. b. The latest date for shipment shall not be extended by reason of the extension of the expiry date and/or the period of time after date of shipment for presentation of documents in accordance with sub-Article (a) above. If no such latest date for shipment is stipulated in the Credit or amendments thereto, banks will not accept transport documents indicating a date of shipment later than the expiry date stipulated in the Credit or amendments thereto. c. The bank to which presentation is made on such first following business day must provide a statement that the documents were presented within the time limits extended in accordance with sub-Article 44(a) of UCPDC, 1993 Revision, ICC Publication No. 500.
157
Deletion of circa
b.
Article 1 exclude or modify Article 1 exclude or modify Principle applies whether partial shipments allowed or not
c.
158
Article 1 exclude or modify Clarification given in Article 31(b) that in the case of multiple presentations on same mode, latest date = date of shipment New rule where more than one mode used Covered in Article 31(c)
c.
Article 1 exclude or modify Article 3 Interpretations singular/plural No change from UCP 500
If drawings and/or shipments by instalments within given periods are stipulated in the Credit and any instalment is not drawn and/or shipped within the period allowed for that instalment, the Credit ceases to be available for that and any subsequent instalments, unless otherwise stipulated in the Credit.
160
Banks are under no obligation to accept presentation of documents outside their banking hours.
161
Article 3 Interpretations singular/plural Addition of services or performance to bring in line with Article 5
162
The two sentences that make up UCP 500 Article 16 have been split New addition to this rule covering loss of documents in transit see next slide
Banks assume no liability or responsibility for the consequences arising out of delay and/or loss in transit of any message(s), letter(s) or document(s), or for delay, mutilation or other error(s) arising in the transmission of any telecommunication. Banks assume no liability or responsibility for errors in translation and/or interpretation of technical terms, and reserve the right to transmit Credit terms without translating them.
163
Banks has been defined as the issuing bank or advising bank In UCP 500 Article 18(c), the word party has been replaced with bank and beneficiary respectively New rule covering issuance of LCs with request for charges to be collected in advance A credit or amendment should not stipulate that the advising to a beneficiary is conditional upon the receipt by the advising bank or second advising bank of its charges
b.
c.
d.
166
(c) now forms the basis for Article 38(a) as this is the principle rule Definitions have been given for Transferable Credit, Transferring Bank and Transferred Credit see next slide
b.
c.
167
168
Covered in Article 38(e). No longer a requirement for irrevocable instructions regarding amendments
e.
169
Article 1 exclude or modify Covered in Article 38(d) Covered in Article 38(g) on the terms and conditions specified including confirmation
h.
170
Covered in Article 38(g) New wording in (g) such requirement must be reflected in the transferred credit Covered in Article 38(h)
i.
171
Revised text to reflect that in the event of discrepancies in substituted documents, 1st beneficiary must replace on demand or 2nd beneficiary documents used Article 1 exclude or modify New (k) documents must be sent to the transferring bank Presentation of documents by or on behalf of a second beneficiary must be made to the transferring bank
j.
When a Credit has been transferred and the First Beneficiary is to supply his own invoice(s) (and Draft(s)) in exchange for the Second Beneficiarys(ies) invoice(s) (and Draft(s)) but fails to do so on first demand, the Transferring Bank has the right to deliver to the Issuing Bank the documents received under the transferred Credit, including the Second Beneficiarys(ies) invoice(s) (and Draft(s)) without further responsibility to the First Beneficiary. The First Beneficiary may request that payment or negotiation be effected to the Second Beneficiary(ies) at the place to which the Credit has been transferred up to and including the expiry date of the Credit, unless the original Credit expressly states that it may not be made available for payment or negotiation at a place other than that stipulated in the Credit. This is without prejudice to the First Beneficiarys right to substitute subsequently his own invoice(s) (and Draft(s)) for those of the Second Beneficary(ies) and to claim any difference due to him. 172
The fact that a Credit is not stated to be transferable shall not affect the Beneficiarys right to assign any proceeds to which he may be, or may become, entitled under such Credit, in accordance with the provisions of the applicable law. This Article relates only to the assignment of proceeds and not to the assignment of the right to perform under the Credit itself.
173
Thank You
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