• 한국무역상무학회:학술대회논문집
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• 2006.12a
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• pp.5-25
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• 2006

• International Commerce and Information Review
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• v.16 no.3
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• pp.203-221
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• 2014

ICC Banking Commission have approved the new version of ISBP for UCP 600(Publication 745) on April 17, 2013. This is called the ISBP 745. This revised version of ISBP includes a lot of shipping documents including bill of exchange. These shipping documents stated in the ISBP 745, especially the certificate of origin is the document necessary for carrying out the customs formalities in FTA era. Particularly, practitioners such as bankers, buyers and sellers, lawyers, freight forwarders and carriers in import and export transactions have to know the UCP 600 and ISBP 745 (2013) thoroughly in order to avoid the disputes due to discrepancies of the documents with the terms and conditions of the credit. The purpose of this article is to reduce the disputes occurred in the credit transaction by providing the examination criteria and case study of the certificate of origin in ISBP 745.

• 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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.359-378
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• 2011

UCP600 Article 20 (a) (v) states that contents of terms and conditions of carriage will not be examined and Article 34 states that a bank assumes no liability or responsibility for the general or particular conditions stipulated in a document. From this perspective, banks may seem to have no obligation to examine the pre-printed clause of B/L. However, ICC decided that no opinion could be given in relation to the issues surrounding B/Ls that contain delivery clauses. Accordingly, it is agreed by previous cases and some scholars that banks may refuse the B/Ls that contain delivery clauses which are not present in other B/Ls of the same goods and transport routes. Also, ICC published ICC Decision in July 2010 regarding on board notation. In this decision, if a B/L indicates a place of receipt that is different from the port of loading and there is an indication of a means of pre-carriage, then a dated on board notation will be required indicating the name of the vessel and the port of loading. Therefore, banks may,, in some cases, need to scrutinize the pre-printed clauses especially appearing in the front page of B/Ls.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.50
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• pp.109-136
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• 2011

Bank Guarantee system is commonly used as useful financial instruments to support various overseas and domestic business activities by providing bank guarantees. Therefore, it will be able to develop as a useful socio-economic useful system. However, some procedural problem can arise from the processes under demands for payment. Therefore, it is very important to review the requirements of the demand for payment and compliance standard for the examination of a presentation under the guarantee system. It is necessary to examine main issues under the revised URDG 758. The URDG introduced the same examination principle of "need not be identical to, but shall not conflict with' as that of UCP 600. The main changes of the URDG 758 like this imply the mitigation of the compliance standard for examination. So, This paper is to provide a comparative study of the regulations and laws for the examination standard and propose their implications and practical notes under bank guarantee system. For this purpose, this study will be examined the practical and legal issues focusing on the relative regulations of the revision URDG 758. It will also be reviewed and compared with the URDG, ISP98, UCP 600 and so on.

• 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.

• 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.45
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• pp.85-109
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• 2010

L/C provides the exporter and the importer with safe assurance in the exchange of goods for payment in international trade. It involves a number of parties. Although the parties may have confidence in their client, bad faith or ignorance of international banking practice by any of these parties could cause the failure of transaction, which makes international trade a risky business. Most of the risks are found in transport document, which can cause disputes. There are many factors in the risk of transport documents under L/C transaction. One most common risk factor for the beneficiary in all transport documents is even if there is no discrepancy in document, the issuing bank or the applicant refuses to pay or delay payment insisting there is a discrepancy. In some very rare cases, the beneficiary may not get paid due to unfair injunction of the local court of the applicant. For the applicant, most common risk factors are fake bill and fraud. Risks classified according to the sorts of transport documents are as follows. 1. In B/L, payment can be refused because it is regarded as charter party B/L, although there is no real charter party contract. And the applicant can bear the potential risk of the loss or deterioration of cargo through transhipment of the cargo loaded on board in container if transhipment is prohibited without excluding of UCP 600 article 20 (c). 2. In charter party B/L, the applicant may take delivery without paying when charter party B/L is signed by charterer, which can result in a big loss for the beneficiary and the negotiating bank. And risks may arise when cargo is seized because the charterer does not pay the hire. The applicant and the issuing bank are also vulnerable to a risk - Against whom should they file a suit when cargo gets damaged during transportation? 3. In multimodal transport document, which is subject to a conflict because there is a big difference in viewpoints between transport industry and banks, conflicts may also arise when L/C requires ocean B/L and accepts multimodal transport document at the same time, but does not specify the details. 4. In air waybill, where the consignee is not the issuing bank but the applicant, risks may take place to the beneficiary when the applicant takes delivery but refuses to pay asserting minor discrepancies in document. The applicant may also bear the risk when cargo may not be loaded because air waybill is a received bill. Another risk may arise when although the applicant prohibits transhipment without excluding UCP 600 article 23 (c), the cargo may be transhipped, provided that the entire carriage is covered by one and the same air waybill.

• 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.49
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• pp.139-164
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• 2011

Traditionally courts have been adopted over the years two standards of dealing with compliance of documents such as strict compliance and substantial compliance and the substantial compliance, which was somewhat less demanding than the strict compliance. However the new guidelines of ICC's international standard banking practice for the examination of documents under documentary credits set up how the UCP is to be applied in practice. The payment obligations of an issuing bank to a beneficiary are independence of the performance or the nonperformance of any contract underlying the letter of credit. However, strictly applying the principle of independence and abstraction could produce unfair results by operating unjustly enrich an unscrupulous beneficiary in case of fraud. Accordingly, when a beneficiary presents complying documents, the issuing bank is bound to honour the presentation unless the fraud rule applies on the facts of the case such as forged or material fraud. If it does, the issuing bank(issuer) needs not pay despite the complying presentation of documents by the beneficiary under the Uniform Commercial Code Article 5-109 and case law in America. However the fraud rule was not addressed in UCP 600. In conclusion, view in terms of legal principle and the court cases is variable and difficult to honour or dishonour the presentation in case of application of the independence principle and fraud rule such as the problems on burden of proof timely, possibility of granting injunction in order to protect against victim for bona fide applicant.