• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.33
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• pp.3-28
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• 2007

A non-documentary conditions is a condition contained in the credit without reference to the presented document in compliance therewith, thereby causing many problems to all parties involved in letter of credit transactions. The purpose of this study is to examine the regulations on the non-documentary conditions under Uniform Customs and Practice for Documentary Credits: UCP, International Standby Practices: ISP98, United Nations Convention on Independent Guarantee and Stand-by Letters of Credit: CIGSLC and Uniform Commercial Code: UCC and also the opinions on the effect of non-documentary conditions through the analysis of several cases on the non-documentary conditions. The result of this study can be summarized as follows: First, UCP, ISP98, CIGSLC and UCC stipulate that banks will deem non-documentary conditions as not stated and will disregard them. Second, courts used to permit the effect of non-documentary conditions. Finally, all parties should not attempt to put in any non-documentary conditions in order to prevent disputes on the effect of non-documentary conditions.

• International Commerce and Information Review
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• v.13 no.4
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• pp.275-295
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• 2011

Any attempt which requires banks to consider non-documentary conditions would destroy autonomy principle and increase the risks of the bank in L/C transactions. Therefore, non-documentary conditions are disregarded in the letter of credit. This provision was first introduced in UCP500, but later, ICC Position Paper No.3 added that if L/C requires documents related to non-documentary conditions, it cannot be disregarded. While the language in UCP600 is basically the same as that in UCP500, there is a difference between the two in that the former disregards the documents related to non-documentary conditions even if they are required by L/C. However, it should be remembered that international standard banking practice does not disregard all of non-documentary conditions. It recognizes the validity of some non-documentary conditions which it is not feasible to change into documentary conditions. That is, such non-documentary conditions as can be determined from an index specified in the guarantee or identified from the issuing bank's own records or their normal operations are recognized as valid in legal cases. ISP98 and UR00758 do not consider these as non-documentary conditions. The applicant should be cautious not to include non-documentary conditions in their applications.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.22
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• pp.137-171
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• 2004

Under Article 2 of the Uniform Customs and Practice for Documentary Credits (1993 Revision. UCP), letter of credit means an arrangement whereby an issuing bank is to make a payment to a beneficiary, or is to accept and pay bills of exchange drawn by the beneficiary, or authorises another bank to effect such payment, or to accept and pay such bills of exchange, or to negotiate, against stipulated document(s), provided that the terms and conditions of the letter of credit are complied with. In letter of credit operations, all parties concerned deal with documents, and not with goods, services and/or other performances to which the documents may relate (UCP, Article 4). It is important to note that under UCP, if a letter of credit contains conditions without stating the document(s) to be presented in compliance therewith, banks will deem such conditions as not stated and will disregard them (Article 13 c). Section 5-108(g) of the Uniform Commercial Code also contains a similar provision. However on several occasions the Korean Supreme Court held that non-documentary conditions in letter of credit governed by UCP could be regarded as valid, although they were not desirable in the context of letter of credit transactions. The rationale underlying the decisions was that parties to the letter of credit transactions are free to determine the terms and conditions of the relevant letter of credit. After reviewing the relevant provisions of UCP, UCC, the International Standby Practices (ISP98) and the Supreme Court decisions of Korea, the author suggests that we classify conditions that do not require any documents (so called apparent non-documentary conditions) into two categories and treat them differently. There are apparent non-documentary conditions that are consistent with the nature of letter of credit and those which are inconsistent with the nature of letter of credit. In the first category there are two sub-categories, (i) those which are valid and (ii) those which are invalid and thus should be disregarded. In the second category there are two sub-categories, (i) those which are invalid and thus should be disregarded and (ii) those which are valid but deprive the instrument of the nature as letter of credit.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.109-132
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• 2009

The purpose of the introduction of this article is as follows. It was frequent to put a condition on the letter of credit without stating corresponding document. But these attempts are very dangerous to the letter of credit operation. That is, if these types of conditions would be permitted in letter of credit, the independence principle must be collapsed. So these conditions must be disregarded in order to safeguard the independence principle. It is why UCP600 article 14(h) writes that if a Credit contains a condition without stating the document(s) to be presented in compliance therewith, banks will deem such conditions as not stated and will disregard it. But scope of this article 14 should not be limited by the conditions which do not state the document to be presented in compliance therewith. That is, the purpose of this article is to preserve the independence principle, so, if it is impossible to ascertain satisfaction with a condition, it should be disregarded as the non-documentary condition, even if the condition is included in the letter of credit together with document to be presented. Conclusively, whether or not a condition would be regarded as the non documentary condition depends on whether compliance of such condition is ascertained by presented documents stipulated in the letter of credit.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.495-513
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• 2000

In this paper, I examined the terms of letter of credit and standard for examination of documents. In connection with the test of standard, I reviewed the bank's reasonable care, inconsistence and linkage between documents, non-documentary conditions and the treatment of discrepant documents. Traditionally credit law is founded on two principles such as the standards of strict of compliance and substantial compliance, but these standards are not consistency. Moreover although the Uniform Customs and Practice for Documentary Credits(UCP) introduces a new standard for examination of documents by incorporating international banking practice, the standards for documentary compliance have created ambiguity. Accordingly, I suggest that the standard requires strict compliance between party concerned in letter of credit transactions but only requires international standard banking practice in customer relationship. Therefore the standard and the specific guideline should be prescribed in the next version of the UCP.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.76
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• pp.103-123
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• 2017

If additional condition in letter of credit is used in malicious way, it affects the international trade transaction in jeopardy. Therefore, it's significant to identify whether additional conditions are malicious or ordinary in the transaction with letter of credit. In normal cases, thanks to lots of useful features as an international payment method, such as security of payment, legal protection, and versatility, a letter of credit is widely used in international trade. However, even with these advantageous features, a letter of credit is complicate and costly to use, compared to other payment methods. Furthermore, due to its principle of independence from underlying contract, a use of letter of credit creates another type of concern for proper handling and needs significant caution upon field use. At some points, malicious additional conditions are used for buyer's advantage in deal making and fraud instance in worst situation. In addition, some countries request malicious conditions against sellers as a non-tariff barrier. Therefore it's extremely important to recognize whether malicious additional condition exists in letter of credit and, if so, how to deal with it. This study delivers the information to distinguish and categorize the malicious conditions in various cases and to figure out how to deal with them for safer trade with less risk.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.179-213
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• 2013

While a performance type guarantee is required as a security for non-performance risk by a seller, a payment guarantee is used as a security for non-payment risk by a buyer(or a borrower in a loan agreement). A payment guarantee is a type of independent bank guarantee, bank guarantee, bond, demand guarantee, or standby letter of credit. A guarantor accepts a credit risk of a principal which is normally a buyer in a contract for sale of goods. A payment guarantee is independent of the underlying relationship between the applicant and the beneficiary. The guarantor is only empowered to examine the beneficiary's demand and determine the payment on its face to the terms of the guarantee. A payment guarantee is thus different from a suretyship. The principle of independence carries a significant advantages for a guarantor as well as for a beneficiary. While a documentary credit requires B/L, commercial invoice, packing list, inspection certificate, etc., a typical payment guarantee does not require any evidence for a seller's performance of the underlying contract other than written demand. In this respect payment guarnatee can be a more secured facility than a documentary credit. A payment guarantee normally comes into force from the issuing date and shall remain in effect until all sums guaranteed shall be paid in full by a buyer(or a borrower) or by a guarantor. Although a guarantor shall pay a demand made in accordance with the terms and conditions of the payment guarantee, a payment demand may be denied when it is determined to be abusive or unfair.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.241-261
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• 2011

URDG 758 tracks UCP 600 in format and style. This makes it easy for practitioners to understand various terms with a lot more clarity than in URDG 458, since practitioners see things in a format and style they are accustomed to. It is a fact that the provisions of the national law will prevail over the URDG 758. In many countries there is only limited written law concerning abstract guarantees; therefore any conflict between URDG 758 and the national law will be unlikely. In many instances the instructing party is different from the applicant - the party whose obligation is supported by the guarantee. And provision for amendment is a new addition in URDG 758. Inspiration was taken from UCP 600 with some fine tuning: accpet, reject or do nothing - and the implications of each of these. Chief among the innovations in the URDG 758 is the one banning non-documentary conditions. The consensus is that the new URDG 758 is a major improvement on URDG 458 in both comprehensiveness of scope and contents of rules. The URDG 758 is likely to become the international standard in the field of demand guarantees.

• Journal of the Korean Institute of Traditional Landscape Architecture
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• v.34 no.3
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• pp.28-37
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• 2016

Through the research and analysis on the hydrological environment and soil environment of habitats through documentary and field studies over 14 habitats of Euryale ferox Salisb. within Jeollabukdo, with the objective of acquiring the basic data for forming an environment based on plantation of reservoirs that are composed with Euryale ferox, the following results were obtained. As a result of analyzing the construction period of the habitats of Euryale ferox from a total of 14 places, the average period of duration after construction of all subject reservoirs appeared to be 71.8 years. Moreover, when examining the relationship between the age of reservoirs and eutrophication, it could be judged that at least the eutrophication of subsoil and water environment is not an obstacle to the growth of Euryale ferox grows in habitats that have a reservoir age of approximately 70 years or more. As a result of analyzing the gardening of soil sediment of the Euryale ferox habitats, the component ingredients appeared to be composed of 80.2% of clay, 16.7% of silt and 3.1% of sand, and the soil class pursuant to such was classified as 'heavy clay'. The organic matter contents of soil sediment appeared to be an average of 36g/kg, and there appeared to be no noticeable difference between the habitats and non-habitats of Euryale ferox. The water quality environment of Euryale ferox habitat appeared to be pH 6.5~7.9, concentration of dissolved oxygen to be $1.8{\sim}8.8mg/{\ell}$, concentration of COD to be $6.8{\sim}74mg/{\ell}$, floating materials to be $2.0{\sim}213mg/{\ell}$, total nitrogen to be $0.422{\sim}10.723mg/{\ell}$, and phosphate to be $0.003{\sim}0.126mg/{\ell}$. The average DO concentration of Aedang Reservoir at Jeongeup, Daejeong Reservoir at Imsil, and Myeongdeokji at Gimje with high vitality and green coverage ratio of Euryale ferox appeared to be $3.5mg/{\ell}$, total nitrogen to be $1.33mg/{\ell}$, and concentration of phosphorus-phosphate to be $0.061mg/{\ell}$. When comparing such with the entire average value, the DO and total nitrogen concentration appeared to be rather low, and the phosphorus-phosphate concentration appeared to be higher by two times or more, thus, an in-depth study on the correlation of the vitality of Euryale ferox Salisb. and concentration of phosphorate-phosphorus will be needed in the future.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.2
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• pp.67-92
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• 2008

The purpose of this paper is to research the requirements and effect of the document of carriage in respect of the carriage of cargo by air under the Montreal Convention of 1999, IATA Conditions of Carriage for Cargo, and the judicial precedents of Korea and foreign countries. Under the Article 4 of Montreal Convention, in respect of the carriage of cargo, an air waybill shall be delivered. If any other means which preserves a record of the carriage are used, the carrier shall, if so requested by the consignor, deliver to the consignor a cargo receipt. Under the Article 7 of Montreal convention, the air waybill shall be made out by the consignor. If, at the request of the consignor, the carrier makes it out, the carrier shall be deemed to have done so on behalf of the consignor. The air waybill shall be made out in three original parts. The first part shall be marked "for the carrier", and shall be signed by the consignor. The second part shall be marked "for the consignee", and shall be signed by the consignor and by the carrier. The third part shall be signed by the carrier who shall hand it to the consignor after the goods have been accepted. Under the Article 5 of Montreal Convention, the air waybill or the cargo receipt shall include (a) an indication of the places of departure and destination, (b) an indication of at least one agreed stopping place, (c) an indication of the weight of the consignment. Under the Article 10 of Montreal Convention, the consignor shall indemnify the carrier against all damages suffered by the carrier or any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statement furnished by the consignor or on its behalf. Under the Article 9 of Montreal Convention, non-compliance with the Article 4 to 8 of Montreal Convention shall not affect the existence of the validity of the contract, which shall be subject to the rules of Montreal Convention including those relating to limitation of liability. The air waybill is not a document of title or negotiable instrument. Under the Article 11 of Montreal Convention, the air waybill or cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage. Under the Article 12 of Montreal Convention, if the carrier carries out the instructions of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill or the cargo receipt, the carrier will be liable, for any damage which may be accused thereby to any person who is lawfully in possession of that part of the air waybill or the cargo receipt. According to the precedent of Korea Supreme Court sentenced on 22 July 2004, the freight forwarder as carrier was not liable for the illegal delivery of cargo to the notify party (actual importer) on the air waybill by the operator of the bonded warehouse because the freighter did not designate the boned warehouse and did not hold the position of employer to the operator of the bonded warehouse. In conclusion, as the Korea Customs Authorities will drive the e-Freight project for the carriage of cargo by air, the carrier and freight forwarder should pay attention to the requirements and legal effect of the electronic documentation of the carriage of cargo by air.