Các tình huống xử lý chứng từ LC

Các tình huống xử lý chứng từ LC (Tài liệu bằng tiếng Anh)

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Case Study No 1

Revocable Letter of Credit under UCP 600

Article 2 defines that a credit is an irrevocable undertaking of the

issuing bank

Question

Can an issuing bank issue a revocable Letter of Credit under UCP 600 ?

Answer

Whilst UCP 600 does not cover the issuance of revocable Letters of Credit,

there is no reason why one could not be issued subject to UCP 600 The

issuing bank would need to insert, within the credit, all the terms and con- ditions of the revocability i.e the wording that formed the basis of UCP 500 article 8

By stating in field 47A that the credit was revocable and establishing the basis under which it can be revoked, this would modify the rule regarding ‘A credit is irrevocable ' in article 3 and would not require any specific exclusion of the definition of ‘Credit

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Case Study No 2

Double transfer under UCP 600

An applicant of a credit, at the alleged request of the first beneficiary, asked for a transferable credit to be issued stating that the second beneficiary would

be allowed to transfer the credit to a subsequent beneficiary, arguing that the allowance in article 1 (unless otherwise expressly modified or excluded by the

credit) overruled sub-article 38 (d) The transferring bank refuses to transfer

the credit on behalf of the second beneficiary to a subsequent beneficiary and refers to article 38 (d) which states:

‘A transferred credit cannot be transferred at the request of a second bene- ficiary to any subsequent beneficiary’

Question

Can the transferring bank decline to effect a double-transfer by referring to article 38 (d) ?

Answer

The rule in sub-article 38 (d) reflects the standard position in relation to

transferable credits, i.e that it may be transferred once only

Where there is a need for the transferred credit to also be made transferable, the original credit must include a condition to the effect that the ‘transferred

credit may also be transferred’

This wording would be in line with the content of article 1 which allows for

each rule to be modified or excluded by the terms and conditions of the credit Sub-article 38 (a) makes it quite clear that a bank is under no obligation to transfer a credit except to the extent and in the manner expressly consented

to by that bank This includes the right of the bank to decline any request for

transfer especially where the transferrred credit was also designated to be

transferable

ICC Official Opinion TA639rev Unpublished UCP 600

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Case Study No 3

When is an L/C amended ?

Beneficiary receives an amendment in which the means of transportation is

changed from ‘by sea‘ to ‘by air’ and air waybill is requested to be presented

instead of bills of lading Two days later, the beneficiary presents documents _ including one set of bills of lading because the beneficiary has already arranged

the shipment by sea

Ten days later, the beneficiary presents another set of documents including air

- waybill under the same credit (partial shipment is allowed)

- Questions

14 Has the amendment been rejected by the beneficiary upon his

first presentation ?

2 Has the credit been amended as of the moment of the second

presentation ?

Answer

Sub-article 10 (c) does not speak of the event of rejection It says that ‘presen-

_ tation that complies with the credit and to any not yet accepted amendement _ will be deemed to be notification of acceptance by the beneficiary of such

- amendment As of that moment the credit will be amended.'

The beneficiary presented documents complying with the terms of the original credit That does not imply, in itself, an automatic rejection of the amendment

- The nominated bank may wish to contact the beneficiary for such clarification but it does not impact that drawing For the next drawing, the beneficiary complies with the credit and the amendment

~ As of that moment the credit is amended.

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- Case Study No 4

- Time period for examination of documents

An issuing bank asked in a credit that documents to be delivered in two lots

and the second lot to be despatched three calendar days after the first sending

The first set of documents has been despatched on 1 January, and the second

set of documents on 4 January The issuing bank raised a discrepancy on

9 January (the first set of documents arrived at issuing bank on 2 January)

Question

: Is it reasonable for an issuing bank to raise the discrepancy on 9 January ?

: Answer

in most countries, between 2 and 9 January there would be two non-banking

days for a weekend, i.e 5 January was a Saturday and 6 January a Sunday

- On this basis, the refusal on 9 January was made on the 5th banking day following

the day of presentation The maximum period of 5 days is banking days

Where documents are split into two mails, the issuing bank is required to commence

the examination process based on the receipt of the first mailing, which should in- clude at least one of each required document

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Case Study No 5

Does a requirement in the L/C that all documents must be issued in

English language preclude a document stamped in another language ?

A Letter of Credit includes the following:

- 3/3 full set bill of lading marked ‘freight prepaid’ issued to the order of the

issuing bank

- All required documents must be in English

The presented bill of lading is issued in English by a Russian shipping line

For authentication the shipping line has signed the document, and stamped it

with their company stamp This stamp is in Russian language (Cyrillic)

Question

Does the Russian stamp constitute a discrepancy, considering the credit require-

ment that all documents must be in English language ?

' Answer

The stipulation in the credit that ‘all documents must be in English language’ relates

to the data thereon that would evidence compliance with the terms of the credit and the relevant provisions of the UCP

Given that a Russian shipping line issued the bill of lading, it would not be unreason- able that the evidence of the name of the company by stamp would be in Russian Provided the data otherwise complied with the terms of the credit and article 20 in the completion of the bill of lading there would be no discrepancy

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Case Study No 6

A certificate of origin from a local Chamber of Commerce

A Letter of Credit cails for a certificate of origin from a local chamber of

commerce

Question

Does local chamber of commerce mean where the beneficiary is based or where the product originates ?

Answer ˆ

The answer lies in the content of an interpretation in article 3 of UCP 600 Therein it is stated: ‘terms such as ‘first class‘, ‘well known’, ‘qualified’,

‘independent’, ‘official’, ‘competent’ or ‘local’ used to describe the issuer

of a document allow any issuer except the beneficiary to issue that document.‘

Applying this interpretation in the context of this query, any chamber of

commerce may issue the certificate of origin

Official Opinion TA652rev Unpublished UCP 600

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_ Case Study No 7

| Whether a document was discrepant because it did not contain a

date of issuance and whether the shipped on board date would

- constitute the date of the bill of lading

Among other documents to be presented, a credit required presentation

- of a full set of bill of lading The beneficiary presented a full set of original

~ marine bill of lading with pre-printed wording that goods had been ‘received for shipment’ The Bill of Lading did not bear a separate issuance date

There was no pre-printed field on the B/L providing for such a date to be filled out

' The issuing bank refused acceptance of documents, on the grounds that the

_ B/L is a transport document and must therefore, in accordance with para-

graph 13 of ISBP 681, be dated They argued that in case of a ‘received for shipment Bill of Lading’ the two dates are always required — one to show the date of issuance and one to show the date when goods were loaded on board The issuing bank did not note any further discrepancies

Question

Was this refusal of acceptance of documents in line with UCP 600 ?

Please explain your answer

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Answer

The presented document is not discrepant

From the example of the bill of lading presented, there is no field for a place : and/or date of issue There is only a field ‘received for shipment’ with the

; Corresponding date filled in The structure of a transport document is not

' governed by the UCP; this is for each shipping company or agent to determine From the details relating to this particular bill of lading, there is no requirement for a date of issuance; therefore, completion of the shipped on board date

- serves two purposes: ⁄

1 The date of issuance of the document

and

2 The date that the goods were shipped on board Z

- A documert issued in the format provided is not discrepant if it does not contain

a date of issuance The shipped on board date would constitute the date of the

~ bill of lading for the purpose of ISBP 681 paragraph 13

ISBP 681 Paragraph 13

- Drafts, transport documents and insurance documents must be dated even if a

- credit does not expressly so require A requirement that a document, other than

' those mentioned above, be dated may be satisfied by reference in the document

to the date of another document forming part of the same presentation (e.g.,

' where a shipping certificate is issued which states ‘date as per bill of lading

| number xxx” or similar terms) Although it is expected that a required certificate

‘ or declaration in a separate document be dated, its compliance will depend on : the type of certification or declaration that has been requested, its required

| wording and the wording that appears within it Whether other documents require

| dating will depend on the nature and content of the document in question

| Official ICC Opinion TA625 — Unpublished UCP 600

Case Study No 8

When a signature, mark, stamp or label is placed on a document, is

- the LIC complying even if the document states ‘legalized’ instead of

- ‘certified’ ?

| A letter of credit required, amongst other conditions, presentation of ‘a commercial

| invoice to be certified by chamber of commerce and legalized by xxx embassy / consulate.’ The negotiating bank accepted a commercial invoice presented under

the above mentioned L/C which was legalized by signature only instead of certified

_ by the chamber of commerce, arguing that UCP 600 article 3 (4th paragraph)

| prescribes:

- *A requirement for a document to be legalized, visaed, certified or similar will be satisfied by any signature, mark, stamp or label on the document which appears

- to satisfy that requirement.’

Question

Can the issuing bank refuse to accept the commercial invoice ?

Please explain your answer

Answer

The issuing bank can refuse acceptance of the commercial invoice, as this docu- ment is clearly discrepant

The terms of the credit contain two distinct requirements:

- that the invoice be certified by a chamber of commerce and

that the document then be legalized by an embassy or consulate

The wording in UCP 600 article 3 (4th paragraph) reflects the interpretation

of the words ‘certified’ and ‘legalized’ where the credit does not provide specific requirements to evidence compliance with a request for certification and / or legalization

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Case Study No 8

' Answer — cont'd

The wording in UCP 600 article 3 (4th paragraph) reflects the interpretation

of the words ‘certified’ and ‘legalized’ where the credit does not provide

_ Specific requirements to evidence compliance with a request for certification

: and / or legalization

There is no requirement that the words ‘certified’, ‘legalized’ or ‘visaed’ etc

: appear on the commercial invoice A chamber of commerce will generally add its stamp and signature to the document The stamp and any wording linked to the signature may not be in a language understood by the issuing

_ bank, e.g., it is in the language of the country of the beneficiary Similarly,

- the language used in any legalization statement or stamp is generally that

- of the importing country It is for these reasons that the UCP provides for

: banks to accept any form of signature, stamp, mark or label that appears to

- satisfy a requirement for certification or legalization

: Official ICC Opinion TA640 — Unpublished UCP 600

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Case Study No 9

Whether banks need to be concerned with the routing of

the goods or their delivery

An applicant in country A opened an irrevocable credit for USD 400.000,00 in favour of a beneficiary in country B A partial shipment was made for USD 180.000,00 within the stipulated time The negotiating bank received a

message from the issuing bank pointing out certain discrepancies in the documents Subsequently the negotiating bank received another message

from the issuing bank stating that the buyer had agreed to accept the

documents on the basis of a payment of USD 5.500,00 in full and final

settlement The negotiating bank was requested to obtain the consent of the beneficiary The beneficiary did not agree and the issuing bank was informed

accordingly Delivery of the goods to the buyer has already taken place by virtue of the goods being consigned to him and the credit calling for an airway bill The buyer of the goods has not returned the goods

Question

Is this an acceptable practice ?

Answer

The bank's responsibilities are to check the documents against the terms of the credit and to establish from the information contained therein whether or not they conform

The fact that the goods may have already been delivered to the applicant is

of no concern to the banks; it is a matter between the applicant and the beneficiary to resolve the event of dispute

Having checked the documents, identified that discrepancies exist, and having therefore provided a notice of discrepancies in accordance with sub-article 16 the issuing bank has complied with the requirements of

UCP 600

Please see Case R 306 ICC Publication No.632 UCP

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