• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.13
• /
• pp.515-536
• /
• 2000

This study analyzes the U.S. case law which challenges the legal conclusions of the district court with respect to the applicability, and effect, of the doctrine of waiver and estoppel in addition to the doctrine of documentary cure. The impliations are as follows. First, the documentary cure requirement can not be interpreted to mean early enough to allow the beneficiary to cure and represent the documents before the presentment deadline or expiry date of letter of credit. The mere fact that the presentment period expired before the completion of bank's review and notification process does not compel any conclusion about whether the examiner spent a reasonable amount of time examining the documents. Indeed, the reasonable time requirement does not imply that banks examine a presentation out of order or hurry a decision based upon particular needs or desires of a beneficiary. Secondly, even if the doctrine of waiver can apply to letter of credit governed by the strict compliance standard, a one-time acceptance of discrepant documents by a bank does not waive the bank's right to insist upon conforming documents in all subsequent letter of credit transactions between the bank and beneficiary. Revised UCC Article 5 is highly persuasive on this point: waiver of discrepancies by issuer or an applicant in one or more presentation does not waive similar discrepancies in a future presentation. Neither the issuer nor the beneficiary can reasonably rely upon honor over past waivers as a basis for concluding that a future defective presentation will justify honor.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.61
• /
• pp.191-211
• /
• 2014

This paper intends to study some problems in the application of UCP 600 in the international trade transactions with China. Generally speaking, China complies with UCP 600 well. Nevertheless, there are some problems in the application of UCP 600 in China owing to the difference in law and practices. There are some problems in the application of UCP 600 in China owing to the difference of practices under Bills of Exchange Act and The Provisions of the Supreme People's Court on Some Issues Concerning the Trial of Cases of Disputes over Letter of Credit. The Act insists on the formal requirements, the consistency between a letter amount and a figure amount, the unconditional payment character of bills of exchange. The Provisions include the recognition of revocable credits, the difference of standard in examining documents, the difference in the treatment of issuing banks in relation to discrepant documents. These aforesaid matters of the Act and the Provisions are inconsistent with the practices under the UCP 600. There are two main problems in the operation of letters of credit in China. One is the lack of concerned parties' practice knowledge in relation to letters of credit in China. The other is the inactive stance of nominated banks in China. There are two main problems in relation to judiciary institutions in China. First, judges in China tend to abuse the injunctions owing to the lack of understanding in relation to letters of credit. Secondly, there are inconsistency in the court ruling in China.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.13
• /
• pp.605-630
• /
• 2000

A letter of credit plays very important roles in rational and smooth international trade. But the parties to letter of credit transactions can bring about many troubles and losses in such transactions because of ignorance and limits of their rights and responsibilities. The purpose of this study is to analyze a legal position of confirming bank and limits of responsibilities of the confirming bank on the UCP and authoritative decisions by ICC. I attempts to analyze a legal position of confirming bank and limits of responsibilities between the confirming bank and the contract parties at the documentary credit transactions on the basis of theoretical, lawful, and international transactions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.39
• /
• pp.143-175
• /
• 2008

The documentary letter of credit is the most preferred and frequently used method in International Payment System in Korea, as it has less possibility of occurring credit risks in export than any other payment system. That's because the exporter can get payment from the issuing bank(confirming bank) by delivering the goods and presenting documents following the required procedure under the letter of credit, as the payment is affirmed by the issuing bank(including the confirming bank in case of the confirmed letter of credit) regardless of the buyer's payment. However, the pattern of payment methods used in international trade of Korea is changing dramatically like the importance of the credit is decreasing continuously among the payment methods while the remittance is increasing. The increase of remittance has a positive aspect that International Payment System are changing into those of advanced countries, but the decrease of the credit also has a negative aspect that the exporter might have a greater credit risks. Therefore, we need a systematic device to deal with this. Exporters in Korea usually have used the export credit insurance to deal with the credit risks However, the export credit insurance also have a limitation as the policy finance due to the limitation based on the credit status of the business and the limitation of acceptance from the lack of financial resources of the government, etc. Korea, which is the 11th export power in the world, has a basic limitation to deal with the credit risks by depending on the export credit insurance only. So, in this thesis, I have studied on the international factoring, forfaiting, which are advanced export finances and widely used in advanced countries, as substitutes to deal with the credit risks. the international factoring is an trade financing in which a factor offers full services such as credit cover, offering prepayment, collection, account receivables, management, etc, instead of the exporter on the account receivables occurred by the exporter's delivering goods to the importer. This international factoring has a high possibility of using as a means to deal with the credit risks, because it offers prepayment without recourse. the forfaiting is another export financing in which a forfaiter purchases the draft, the promissory note and other negotiable instruments issued from the international trade, with fixed interest rate without recourse from the exporter or previous holder. By using this method, they can avoid foreign exchange risks, contingency risks as well as credit risks, as the conveyances like the promissory note, etc are issued with the note warranty so-called 'per aval' in business practice. These trade financing are good substitutes to deal with the credit risks in export, but they are not widely used in Korea. Though it can be explained with various reasons, the common reasons are the lack of understanding on the use of advanced export finance, the lack of experts to manage the advanced trade finance, the conservative way of thinking of domestic organizations related to trade financing, the lack of organizations supporting the trade financing, etc.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.20
• /
• pp.295-315
• /
• 2003

Since the end of World War II, the standby letters of credit have been used as a surety device, serving as a performance bond and guarantee in the world. UCP has been used a governing rule for standby letters of credit transactions in international commercial transactions. But the UCP may be sufficient for certain simple standbys, it is not fully applicable nor appropriate for standbys - as is recognized in UCP 500 Article 1. On the other hand, the International Standby Practices(ISP98) provide rules of practice drafted specifically for standby letters of credit intended as an alternative to UCP 500. It became effective on January 1, 1999. In addition to restating general rules applicable to all independent undertakings with greater precision than does UCP 500, thereby reducing the possibility of litigation, it addresses issues that commonly arise in standby practice not addressed in UCP 500. UCP 500 is valid and still applies to standby letter of credit "to the extent to which they may be applicable." Since ISP98 and UCP 500 coexist and may be applicable to standby letters of credit by incorporation, applicants, beneficiaries and issuers have a choice. This study will assist all interested parties in establishing the right rules for the right product, for the right standby letters of credit.

• International Commerce and Information Review
• /
• v.16 no.2
• /
• pp.89-109
• /
• 2014

The purpose of price escalation clauses has the effect of increasing the L/C value subject to external pricing mechanisms. This will be found inter alia in metals and oil products transactions. Such a clause gives rise to a question. That is, whether it is enforceable or whether it constitutes a letter of credit. The problem is what to reference to a source outside the context of a letter of credit constitutes a non-documentary condition rendering the undertaking something other than a letter of credit. Reference to an objective and readily available index is not something that renders the undertaking obscure and is not "non-documentary in the sense that it is possible to make an objective verification of the data. The possible solution is that not every non-documentary condition will be disregarded. For example, an index specified in the credit will not be disregarded as stipulated in ISP98 and URDG758. If a non-documentary is "central and fundamental", it seems that the parties intended a dependent payment obligations. The most common means of overcoming this conflicts of interests is to issue an instrument incorporatingan escalation clause, but capping the bank's maximum payment obligation.

• Journal of Arbitration Studies
• /
• v.15 no.3
• /
• pp.175-205
• /
• 2005

One of the important issues facing current letter of credit practice is the effect of nondocumetary conditions. A nondocumentary condition is a condition contained in the credit without stating the document to be presented in compliance therewith, so nondocumentary condition must be ascertained by reference to factual matters rather than by review of a tendered document. This study attempts to examine the regulations in UCP, ISP98 and UCC on the nondocumetary conditions and the opinions on the effect of nondocumetary conditions and to analyze various cases on the effect of nondocumetary conditions. The results of this study can be summarized as follows. Firstly, UCP, ISP98 and UCC stipulate that banks will deem nondocumetary conditions as not stated and will disregard then So the legal standards for nondocumetary conditions have established. Secondly, courts used to permit the effect of nondocumetary conditions on the basis of the Wichita rule, party autonomy. Thirdly, issuing banks and applicants should not attempt to put in any nondocumetary conditions in order to prevent disputes on the effect of nondocumetary conditions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.12
• /
• pp.461-494
• /
• 1999

This study is to analyse the applicability of governing law in multi-party contractual relationship of letter of credit. And this study is also to suggest the limits of the possibility of applicable law in multi-party contract. The contract of letter of credit constitutes complex relationship, i.e., applicant -beneficiary, applicant-issuing bank, issuing bank-intermediary bank ect. The law applicable to letter of credit should not use a singular governing law in all credit transaction as sales contract. To solve these problems, the author analysed the law applicable to the credit under multi-party contractual relationship as follow : (1) the principle of party autonomy (2) In the absence of express agreement with regard to the law applicable to the contract, lex loci contractus, lex loci solutionis, the law intended by the parties, the law with which contract is most closely connected. Accordingly, when attempting to ascertain the law governing the credit, it should be borne in mind that the credit involves several contractual relationships. I would like to conclude as follows: 1. The contract between the applicant and the Issuing bank is to be governed by the law of the country where the contract is made, and in which the bank carries on business and has issued the credit. 2. When it comes to the beneficiary-Intermediary bank relationship the following rule is given : The liability of an intermediary bank to the seller is governed by the law the country where the intermediary bank is operating if it is acting as principal. If, however, it is acting as agent(advising bank), it will be the law of the country where his principal is situate. 3. The contract between the beneficiary and the Issuing bank is governed by the law of the country where the payment is to be performed. 4. The contract between the Issuing bank and Intermediary bank is governed by 1) the law of the issuing bank is applicable if the intermediary bank only advises the credit, 2) the law of the issuing bank is applicable but if the intermediary bank makes payment, accepts or negotiates drafts against the tender of the documents, i.e., act as the bank dffecting the payment., 3) the law of the confirming bank is applicable if the irrevocable letter of credit is confirmed by the intermediary bank

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.21
• /
• pp.99-127
• /
• 2003

Legal sources of fraud rule in documentary letter of credit, which have their origin in Sztejn Case can be traced to various rules or laws of international or domestic level ; URCG, URDG and ISP98 as ICC Rules, and UNCITRAL Convention as an international uniform law, and UCC as a domestic law and U.K. cases. Among them the combination of "material fraud" in UCC ${\S}5-109$ and the detailed list of the types of misconduct in UNCITRAL Convention may provide the best solution or standard in real application of the fraud rule in letter of credit transaction.

• Journal of Arbitration Studies
• /
• v.18 no.2
• /
• pp.173-199
• /
• 2008

A letter of credit transaction of the preexistence have been raising one's head fraud charge problem as a result of abusing the principles of independence and abstraction. Every society has certain rules and conventions which it regards as important and most of people in any society. The paper document means a document in a traditional paper form. The eUCP credit must specify the formats in which electronic records are to be presented. In these present times, the issuance of documentary credit are performed by the SWIFT(Society for Worldwide Inter bank Financial Telecommunication) system. The eUCP have been written to allow for presentation completely electronically or for a mixture of paper documents and electronic presentation. Presentation is deemed not to have been made if the Beneficiary's notice is not received. An electronic record that cannot be authenticated is deemed not to have been presented. The e-UCP is the supplement of current existing UCP but is superior to UCP under some circumstances. The document shall include an electronic record. The place for presentation of electronic records means an electronic address. The current e-UCP is not clear on this matter. We have to note followings in case of presenting the documents electronically and applying the e-UCP. There are three principles in the letter of credit transaction, that is to say, independence and abstraction, document dealing, strict compliance. IN the electronic letter of credit, these principles are called as independence and abstraction, electronic document dealing, strict compliance.