• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.76
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• pp.77-101
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• 2017

This article provides the definitions of the negotiation of credit, the negotiating bank and the negotiation credit. It further describes a number of legal status of negotiating banks by looking into the legal relations firstly between the beneficiary and the negotiating bank and secondly between the issuing bank and the negotiating bank. This study is in large part based on relevant provisions of UCP 600 and decisions of the Supreme court of South Korea. Under UCP 600 the definition of negotiation requires the purchase by the nominated negotiating bank of the required documents by advancing funds on or before the banking day on which reimbursement is due to the negotiating bank. A negotiation credit authorizes the negotiating bank who is a nominated bank to purchase from the beneficiary the documents required by the letter of credit and to present those documents to the issuing bank for reimbursement. If the credit is to be honoured at sight, reimbursement is due when the issuing bank determines that there has been a conforming presentation. Reimbursement under a letter of credit available by acceptance or by deferred payment is due at maturity of the credit. In particular, while the timing of advance by the nominated negotiating bank is up to the parties, a promise of the negotiating bank to advance the purchase price to a fraudulent beneficiary does not confer immunity from letter-of-credit fraud prior to its performance. This requires the negotiating bank who is notified of material fraud prior to making an advance to beneficiary to avoid a loss by using the fraud.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.7
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• pp.633-681
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• 1994

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.213-238
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• 2006

Deferred payment letter of credit is the L/C that makes the issuing bank to pay a beneficiary at maturity stipulated in the credit. In this deferred payment letter of credit transaction, is it possible that a confirming or nominating bank payor negotiate before maturity? and the confirming or nominating bank have legal protection when paid or negotiated before maturity? These problems are raised in argument. By the way, Korea, Switzerland, Germany, and Italy are positive on the above question, but France, United Kingdom, and Singapore are negative. Therefore, when using deferred payment letter of credit, it is required to keep in mind that the understanding of maturity stipulated in the credit is different among countries, legal principles of each nations, and researchers. And other problems are raised also as follows; the application of Fraud Rule and principle of independence and abstraction as nature of credit, when to pay credit amount to beneficiary, and refusal of payment due to poor quality. Finally, it is required to use deferred payment letter of credit, after full understanding of deferred payment letter of credit pointed out in this paper.

• Journal of Arbitration Studies
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• v.21 no.2
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• pp.133-156
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• 2011

This paper is to analyze the legality in which the fraud rule allow the issuer of L/C or a court to disrupt the payment to the beneficiary under the deferred payment credit when the nominated bank for deferred payment undertaking made prepayment or negotiation before the maturity date and fraud is identified to be involved. Since the function of commercial L/C is to provide absolute assurance of payment to a beneficiary, the fraud rule based on fraud exception has been known as the negative factor which lead to the disruption of "principle of independence & abstraction" under the commercial L/C transactions. As a result, the fraud rule is necessary to limit the activities of fraudsters, but its scope must be carefully circumscribed so as not to deny commercial utility to an instrument that exists to serve as an assurance of payment. But the fraud itself has not been firmly established because it is inherently pliable in its concept. There are numerous contents to describe the application of fraud to the L/C transactions as a standard such as egregious fraud, intentional fraud, L/C fraud(omitted here), flexible fraud, and constructive fraud. And so the standard applicable to the commercial transaction as the fraud rule would be high or low depending upon the various standards of fraud.

• International Commerce and Information Review
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• v.14 no.4
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• pp.433-456
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• 2012

The confirming bank undertakes to make payment to the beneficiary, provided that a complying presentation is made and complies with its confirmation. In case L/C fraud is evident, though, the confirming bank as well as the issuing bank does not have the obligation to make payment. That is, the confirming bank does not take the risks involving documentary fraud. The confirming bank cannot exercise the right to recourse toward the beneficiary or the nominated bank when the issuing bank finds the discrepancies which the confirming bank has not noticed. This is because under UCP600, the issuing bank or the confirming bank cannot refuse to make payment with the cause of documentary discrepancy after 5 banking days following the presentation of documents. Even if the issuing bank accepts the discrepant documents following the confirming bank's request to do so, the confirming bank does not have the responsibility for the confirmation. When under Usance Negotiation Credit, the confirming bank acts as the nominated bank, the confirming bank should make payment in no time if the beneficiary presents complying documents. Therefore, unless the confirming bank intends to make immediate payment, they should consider using Deferred Payment or Acceptance L/C in Usance Credit. It is also safer for the beneficiary to have the reimbursing bank's undertaking to the reimbursement than just have confirmation of the credit because in the latter case they may not have full payment due to disputes regarding discrepancies of the documents even if they have confirmation of the credit.

• Korea Trade Review
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• v.48 no.3
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• pp.23-41
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• 2023

The seller and the buyer write down the agreed details in the trade contract as trade contract clauses. In the case where a letter of credit is agreed to be the payment condition, the buyer shall open a letter of credit to the seller with the shipping date specified in the trade contract through its bank. In this case, the legal relationship between the performance date of the trade contract and the shipment date of the letter of credit, the change of the performance date of the trade contract due to the change of the trade contract and the change of the shipment date specified in the letter of credit, the seller's letter of credit A problem arises in the legal interpretation of the approval period and the change request period. Therefore, this paper analyzed the precedents of the Seongnam Branch of the Suwon District Court and the Seoul High Court related to these legal issues. The performance date of a trade contract is the seller's delivery date and the buyer's payment date. In the letter of credit transaction, the date of performance of the trade contract is regarded as the date of shipment and the date of negotiation of documents specified in the letter of credit. The seller must decide whether to accept the letter of credit within 5 banking days after receiving the letter of credit from the buyer. After this period has elapsed, the seller cannot refuse the letter of credit. However, if the buyer is unable to decide whether to accept the letter of credit within 5 banking days due to reasons attributable to the buyer, the delivery date specified in the letter of credit will be extended. If the seller requests an amendment to the letter of credit, the buyer must accept it and open the letter of credit the seller desires to the seller. If the buyer refuses the seller's request to change the letter of credit, company A has the obligation to change and reopen the letter of credit as requested by company B. Expect by agreeing on the quotation As it is a fundamental breach of contract stipulated in Article 25 of the United Nations Convention on Contracts for the International Sale of Goods, company B can cancel the trade contract and claim damages from company A. Compensation for damages caused by Company A's breach of the trade contract shall be an amount equal to the loss suffered by Company B as a result of the breach, including loss of profits.

• Journal of Arbitration Studies
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• v.22 no.1
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• pp.65-88
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• 2012

Even though there are some discrepancies in detail with the legal characteristic of the issuing bank's notice to the beneficiary of opening of the letter of credit, article 25 of "the Korean Private International Act(hereunder, 'KPIA')" can be applied to the legal relation between the issuing bank and the beneficiary or the negotiating bank. According to article 26 of the KPIA, if there is no agreement between the issuing bank and its opponent party as to the governing law issues, a state's law which has the closest relationship with the subject case may be applied. In the latter case, given the facts that the issuing bank plays important roles in every phasis of the sale of goods by the letter of credit, a law of place where the issuing bank's business premises is situated(the $lex$ $situs$) can be the applicable law. Meanwhile, "the Korean Supreme Court(hereunder 'KSC')" held that the beneficiary or the negotiating bank can claim any damages arising due to the refusal or deferred payment of the issuing bank, and the law which governs the above mentioned situation is the same law that is applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank. The main reason of the KSC's ruling is that the nature of the legitimate interest rate which is stated in article 3 of "the Act on Special Cases concerning Expedition etc. of Legal Proceeding(hereunder 'ASCELP')" is substantial matters, not procedural. Taking into account, however, that the main object of ASCELP lies in expedition of legal proceeding, prompt realization of people's rights and duties, and prevention of delayed legal proceeding, it is recommendable that ASCELP, instead of the law applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank, should be applied to the cases in which the malicious debtor's only and main purpose is delaying the legal proceedings. On the other hand, even if the issuing bank's duty of examination of the documents which were tendered by the beneficiary or the negotiating bank is restricted to the formality and strict conformity of the documents and not the substantiality of the documents, the issuing bank still has to examine the documents with due diligence that is required to the banks whose main business is sales of documents, not the real goods. In this regard, under the circumstances where the document lacked the regularity and/or the formality on its face because of the forgery of the document and where it was expected that an ordinary banker might have easily found any faults with the document, the issuing bank must compensate any parties for damages when it pays money without due diligence as a banker who engaged in the sales of documents.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.119-139
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• 2012

In the case of Banque Paribas V. Banco Santander in England for the reimbursement request of deferred payment credit by the nominated bank, the L/C-issuing bank refused to pay the proceeds at maturity because of a fraudulent transaction. The reason of refusal was that the nominated bank, Banco Santander, had no right of payment in deferred credit before its maturity if it made payment of proceeds without notice to the issuing bank, that is, payment not based upon a credit transaction but on its own account. However, in the case of ADIB V. Fortis Bank in America, the New York court made the decision that the deferred payment bank could not refuse to reimburse to the nominated bank, Fortis Bank, because of fraud. Its decision was based on the UCP600. We have analyzed and investigated the above two cases-one was an English court's decision and the other an American's. The English court's decision was made under UCP500, but the American court's was made under UCP600, which was revised in 2007. As a result, we can expect that from now on in deferred payment credit transactions, the power of the nominated bank will be greater than before, but the issuing bank will bear the risk of the beneficiary's fraud, so the issuing bank will be hesitant to issue deferred payment credit. Notwithstanding, we thought that the New York court decision would come into effect in the activation of deferred payment credit in practical trade transactions.

• International Commerce and Information Review
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• v.11 no.3
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• pp.287-309
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• 2009

There were many changes regarding Negotiation of document under UCP 600. First of all, the definition of Negotiation was changed. The UCP 500 stated "Negotiation means the giving of value for drafts and documents by the bank authorized to negotiation", but the UCP 600 defines "negotiation" as following "negotiation means the purchase by the nominated bank of drafts and/or documents under a complying presentation". Under the UCP 600 the meaning of negotiation was more clear than UCP 500. Second UCP 600 permits all deferred payment credits be discountable or negotiable. This amended rule equated the deferred payment credit with banker's acceptance credit which was contrary with the nature and the practice of former deferred payment credit transaction. Third, UCP 600 has also provided for reimbursement rights for nominated banks and a conceptual basis for protecting nominated banks against beneficiary fraud. In this paper, the problems regarding negotiation of document under UCP600 was studied and the solutions for the problems occurring in appling UCP 600 in practical field was provided.

• International Commerce and Information Review
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• v.14 no.2
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• pp.389-409
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• 2012

The Switched Bill of Lading(SBL) has been in frequent use in recent years as intermediary trade increases with the growing number of companies' overseas subsidiaries. Its frequent use, though, has brought about disputes regarding its illegal issue. Although there are several legal cases regarding this, studies on this issue are hard to find. Therefore, this study tries to provide countermeasures and precautions against unlawful issues of SBL through examining the legal cases resulting from illegal issuing practices of SBL. When the Switched Bill of Lading is issued, the shipper, consignee, port of loading and unloading, and shipping date of the original bill of lading are usually changed. Statements which may put the shipper at a disadvantageous position may also be deleted and/or the bill of lading may be either divided or integrated when it is issued. However, if the carrier issues the SBL 1)without withdrawing original BL, 2)indicating the shipping date, port of loading and port of discharge falsely, or 3)deleting the statements which may give him disadvantages, it may be regarded as an illegal issue. These unlawful issues of SBL may pose a huge threat to the shipper, banks and the parties relating to the trade. That is, the shipper may take a substantial loss when the goods can be delivered to a third party by SBL without his collecting the proceeds. The issuing bank and the negotiating bank may also have their security rights to the goods hampered by the illegal and improper issue of SBL. In most cases, the carrier has no choice but to issue the SBL without collecting the original BL for fear of hurting the relationship with the intermediary traders. This practice of issuing more than two sets of BL may pose a potential risk to the carrier.