• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.59-85
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• 2008

An independent bank guarantee(aka an independent guarantee) is provided as an security on a principal obligor's performance of his obligation, and a guarantor should pay the guaranteed amount only upon a beneficiary's written demand. A standby letter of credit has been used in the United States, since it was construed that a bank should not issue a guarantee. There was wide misunderstanding that a standby letter of credit differs from an independent bank guarantee. However, a standby letter of credit is the same security as an independent bank guarantee, and in international business a standby letter of credit is not differentiated from a independent bank guarantee. An independent bank guarantee are independent from the underlying contract, unconditional, and irrevocable. And a guarantor should pay upon written demand without proving a principal obligor breaches the underlying contract. These features of an independent bank guarantee has been abused in international transactions. Thus it has been proposed that some exceptions to the features of an independent bank guarantee should be allowed. United Nations Convention on Independent Guarantees and Standby Letter of Credit(1995) stipulates some exceptions to payment obligation. Export bond insurance, a part of export insurances, operated by the Korea Export Insurance Corporation under the Export Insurance Act, is used as a security for unfair calling by a beneficiary under an independent bank guarantee. Most of the export subsides by the government are prohibited under WTO's Agreement on Subsidies and Countervailing Measures. However, as export insurance is allowed under the WTO, it operates a significant role in enhancing the export. In the event that export bond insurance is provided for a guarantor, an obligor who is subject to recourse by a guarantor, can be exempt from the recourse in case of unfair calling. The Korea Export Insurance Corporation, an insurer, bears unfair calling risk by a beneficiary. Generally it is understood that a demand shall be made before the expiry of an independent bank guarantee. However this is not absolutely true, it shall be decided by URDG, ISP98, the governing law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.85-105
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• 2016

Independent guarantee is new financial product developed in international commercial transaction. The nature of independent guarantee is an independent undertaking, which takes the form of documentary transaction. As long as the documents presented by the beneficiary are on their face complying with the terms and conditions of the guarantee, the guarantor is obliged to pay upon the complying presentation. Where parties choose to apply for issue of independent guarantee in international commercial transactions in China, Chinese court shall respect the autonomy of parties. If either the guarantor or the beneficiary is located outside of China, or the facts which cause the establishment, change or cancellation of independent guarantee relationship occurred outside of China, it shall be deemed as foreign related independent guarantee. If the interested parties requests for confirmation of the independence of foreign related independent guarantee, it shall be supported by Chinese court. However, parties dealing with Chinese domestic commercial transaction have not fully realized the severity of independent guarantee liability. The market credit is being cultivated and the financial innovation is being explored at present in China. In order to guard against the systematic and the regional financial risk, before relevant rules are promulgated, Chinese court shall not recognize the independence guarantees issued for the domestic commercial transaction, but treat it as joint liability surety.

• 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.47
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• pp.157-182
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• 2010

A counter-guarantee is an independent undertaking and it functions in the same way as an ordinary independent guarantee. However, the typical notion of independence which applies to the relationship between the guarantee and the underlying contract cannot be exactly transposed to the relationship between the counter-guarantee and the primary guarantee, because the primary guarantor bears its duties that derive from the mandate. In this respect, this study reviews, with some critics, a Korean appellate court's decision and argues that, in spite of the principle of independence between the counter-guarantee and the primary guarantee, the primary guarantor may not be entitled to reimbursement from the counter-guarantor, if it is objectively evident that the primary guarantor has failed to perform its duty of verifying compliance under the primary guarantor or if it is objectively evident that the primary guarantor knows that it is objectively evident that there was fraudulent calling by the beneficiary under the primary guarantee.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.72
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• pp.25-55
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• 2016

The Buyer shall demand to the Builder the repayment of the pre-delivery instalments paid in case of the Builder's default under a ship-building contract. The Buyer require a refund guarantee issued by a financial institution for a security for the repayment of the pre-delivery instalments paid. As the title of a refund guarantee, in practice, is various, we should look into the contents or the expressions in a guarantee to decide whether a guarantee is a refund guarantee. A refund guarantee, a sort of independent bank guarantee, has characteristic of abstractness, and is independent from the ship-building contract. A refund guarantee is available against the beneficiary's first written demand and signed statement certifying that the Builder failed to make the refund in accordance with the ship-building contract. The guaranteed amount of a refund guarantee will be automatically increased in accordance with the Builder's receipt of the respective instalment, which is not in the other advance payment guarantee. These characteristics of a refund guarantee are derived from the expressions in a refund guarantee rather than inherent therein. This illustrates that careful attention is required to the contents and expressions of the main clauses in a refund guarantee.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.133-160
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• 2009

In International trade the buyer and seller are normally separated from on another not only by distance but also by differences in language and culture. It is rarely possible for the performance of obligations to be simultaneous and the performance of contracts therefore calls for trust in a situation in which the parties are unlikely to feel able to trust each other unless they have a longstanding and successful relationship. Thus the seller under an international contract of sale will not wish to surrender documents of title to goods to the buyer until he has at least an assurance of payment, and no buyer will wish to pay for goods until he has received them. A gap of distrust thus exists which is often bridged by the undertaking of an intermediary known and trusted by both parties who will undertake on his own liability to pay the seller the contract price in return for the documents of title and then pass the documents to the buyer in return for the reimbursement. This is a common explanation of the theory behind the documentary letter of credit in which the undertaking of a bank of international repute serves as a "guarantee" to each party that the other will perform his obligations. The independence principle, also referred to as the "autonomy principle", is at the core of letter of credit or bank guarantee law. This principle provides that the letter of credit or bank guarantee is independent of the underlying contractual commitment - that is, the transaction that the credit is intented to secure - between the applicant and the beneficiary ; the credit is also independent of the relationship between the bank and its customer, the applicant. The most important exception to the independence principle is the doctrine of fraud in the transaction. A strict interpretation of the rule that the guarantee is independent of the underlying transaction would lead to the conclusion that neither fraud nor manifest abuse of rights by the beneficiary would constitute an objection to payment. There is one major problem related to "Independent guarantees", namely abusive or unfair callings. The beneficiary may make an unfair calling under the guarantee. The countermeasure of beneficiary's unfair calling divided three cases. First, advance countermeasure namely by contract. In other words, when the formation of the contract, the parties must insert the Force Majeure Clause, Arbitration Clause to Contract, and clear statement to the condition for demand calling. Second, post countermeasure namely by court. Many countries, including the United States, authorize the courts to grant an order enjoining the issuer from paying or enjoining the beneficiary from receiving payment under the guaranty letter. Third, Export Insurance. For example, the Export Credit Guarantees Department is prepared, subject to certain conditions, to cover the risk of unfair calling. Of course, KEIC in Korea is cover the risk of the all things for guarantees. On international projects, contractor performance is usually guaranteed by either a standby letters of credit or Independent guarantee. These instruments will be care the parties.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.17
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• pp.7-35
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• 2002

In many international financing transactions Korean companies are required to issue a guarantee. Thus far, however, legal issues on international guarantees have not been fully discussed in Korea. This is partly because most of the international guarantees are governed by a foreign law such as English law or the laws of the State of New York. In this articles the author examines major concepts or terms and conditions of a typical international guarantee, e.g., language on consideration, primary obligor, joint and several guarantee, unconditional and irrevocable guarantee, continuing guarantee, right of subrogation, representations and warranties, covenant or undertaking, currency indemnity, assignment, participation, governing law and jurisdiction clause, etc. For reference, standard forms of a guarantee and a standby letter of credit are attached to the article. In examining the terms and conditions, the author compares them with similar or equivalent concepts under Korean law. The author further discusses some Korean law issues that may arise under international guarantees governed by a foreign law. These issues include the application of the ultra vires doctrine under Article 34 of the Civil Code of Korea, the validity of an international guarantee which a Korean company has issued in violation of the guarantee ceiling set under Article 10 of the Law on Monopoly Regulation and Fair Trade of Korea and the validity of an international guarantee which a Korean party has issued in violation of the Foreign Exchange Transaction Law. In addition, the author discusses some issues under a so-called independent guarantee and a standby letter of credit. In this regard, reference is made to the Uniform Rules for Demand Guarantee (URDG), International Standby Practices (ISP98) and the Convention on Independent Guarantees and Stand-by Letters of Credit adopted by the United Nations in 1995. Finally, the author examines major terms and conditions of typical comfort letters and discusses some legal issues, such as the binding force of the comfort letter. In dealing with the issues the author underscores that to the extent the issues are not properly dealt with by an international norm such as Uniform Customs and Practice for Documentary Credits or ISP 98, the issues must be analyzed by reference to the governing law of the relevant instrument.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.46
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• pp.133-158
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• 2010

Independent guarantee is a creation of the need from the both sides, i.e. the applicant (principal debtor) and the beneficiary (creditor). The former used to have to deposit cash in favor of the beneficiary in case of his default, which laid a burden on his liquidity while the latter still wanted to have the equivalent to cash. Independent guarantee satisfied the both parties by freeing the applicant of a deposit and maintaining the beneficiary's right at the same time. The fact that independent guarantee has three payment mechanisms is not widely known to the public. They are (i) payment on first demand, (ii) payment upon submission of third-party documents, (iii) payment upon submission of an arbitral or court decision. From the applicant's point of view, the order in his favor is (iii), followed by (ii) and (i). As there shouldn't be a case where one party is at a disadvantage against the other, useful insight is being sought for the benefit of the applicant. First, the applicant can offer his intention to provide a payment mechanism (ii) or (iii) rather than (i) if he must deliver it. Second, if the beneficiary still wants to have (i) and the applicant is in a position not to reject it, the latter should thoroughly check any provisions that may work against him later. Third, the applicant could use counterbalancing provisions in underlying contract to cope with protective clauses in the guarantees. Forth, the applicant should review the beneficiary's sincerity to prevent unfair calling risks. The applicant may use an ECA(Export Credit Agency) in his country to which he can transfer not only unfair calling risks, but also political risks. On the other hand, a bank needs to keep the following advice in mind. The foremost important thing for the bank not to forget is that it provides a guarantee as a service provider, not as a responsible party for the feasibility of the project, etc. Credit risk of the applicant should require the greatest attention when issuing a guarantee: the bank should look into the possibility that it can procure immediate reimbursement from its customers after payment to the beneficiary. Second, the applicant's ability to complete the project should be reviewed by checking its track records, techniques and reputation, etc. Third, the bank may also use an ECA to cover the beneficiary's unfair calling risks as well as political risks. In the case of Korea, as Korea Export Insurance Corporation(KEIC) can cover all the risks mentioned above, the bank could use its service called 'Export Bond Insurance.' What's better for the bank is that ECA cover can enhance the bank's asset quality by putting it zero on its risk weighted asset.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.87-103
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• 2008

Two kinds of security devices such as independent guarantees and standby letters of credit have been widely used in the international transactions. These devices design to protect one of the parties from a breach by its counter-party. Main uses of these guarantees and standby letters of credit are as follows : bid guarantee, performance guarantee, advance payment guarantee, payment guarantee, retention guarantee, etc. The standby letters of credit were first invented in the U.S.A. and have been widely used in the international and domestic contracts in the U.S.A. But the practical use of these credits is very unsatisfactory in Korea. The purpose of this study is to serve the increase of practical use of the standby letters of credit in Korea through the comparison study on the practical use of the credits between Korea and the U.S.A. Both devices are very similar in function, but they are very different in forms. The one has the form of letter of credits but the other has the form of guarantee. The letter of credit has the stability of governing rule, the legal certainty, and the preference in the field of the trade community comparing to the guarantee. I recommend to use standby letter of credit instead of bank guarantee in international transactions because of the merits of the credit aforesaid.

• Journal of Arbitration Studies
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• v.34 no.2
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• pp.45-64
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• 2024

In international transactions, a demand guarantee is commonly used as a so-called independent bank guarantee to protect against the other party's default under, or breach of, contract). However, there is a risk that the independence and the documentary character of the demand guarantee may be abused by the beneficiary of the guarantee, who may fall into the temptation to demand or call for payment under the guarantee by preparing documents that appear to constitute a complying demand for payment, even though the demand has no conceivable basis. In Korea, through case law, a legal rule has been developed to prevent such abusive calls for payment. This paper examines how such rule that prohibits abuse of rights is applying in the context of counter-guarantees. To this end, this paper first considers the concepts of a demand guarantee and a counter-guarantee and the basic legal principles applicable thereto. And then this paper considers abusive calls under the guarantees, that exceptionally works as grounds for refusal of payment by guarantors and counter-guarantors, further looking at some situations in which the calls amount to be abusive under counter-guarantees in particular.