Nội dung

UCP600 & UCP500 Compared Part I. The Modifications and Changes in General a. Given 14 definitions at first and 12 interpretations to clarify the meaning of ambiguous terms, refer to Art 2 & 3. b. Agreed that the issuing bank must reimburse the nominated bank even though the documents are lost in the transmitting however, the presentation must be complying. c. …… Part II. Detailed Comparison for Each Article Article 1 Application of UCP ................................................................................. 2 Article 2 Definitions................................................................................................ 2 Article 3 Interpretations.......................................................................................... 3 Article 4 Credits v. Contracts ................................................................................. 4 Article 5 Documents v. Goods, Services or Performance .................................... 4 Article 6 Availability, Expiry Date and Place for Presentation ............................ 4 Article 7 Issuing Bank Undertaking....................................................................... 5 Article 8 Confirming Bank Undertaking ............................................................... 6 Article 9 Advising of Credits and Amendments.................................................... 7 Article 10 Amendments .......................................................................................... 8 Article 11 Teletransmitted and Pre-Advised Credits and Amendments .............. 8 Article 12 Nomination ............................................................................................ 9 Article 13 Bank-to-Bank Reimbursement Arrangements..................................... 9 Article 14 Standard for Examination of Documents...........................................10 Article 15 Complying Presentation......................................................................12 Article 16 Discrepant Documents, Waiver and Notice .......................................12 Article 17 Original Documents and Copies.........................................................13 Article 18 Commercial Invoice ............................................................................14 Article 19 Transport Document Covering at Least Two Different Modes of Transport ..............................................................................................15 Article 20 Bill of Lading.......................................................................................17 Article 21 Non-Negotiable Sea Waybill ..............................................................19 Article 22 Charter Party Bill of Lading ...............................................................20 Article 23 Air Transport Document .....................................................................21 Article 24 Road, Rail or Inland Waterway Transport Documents .....................23 Article 25 Courier Receipt, Post Receipt or Certificate of Posting ...................24 Article 26 "On Deck", "Shipper's Load and Count", “Said by Shipper to Contain” and Charges Additional to Freight .....................................25 Article 27 Clean Transport Document .................................................................25 Article 28 Insurance Document and Coverage....................................................25 Article 29 Extension of Expiry Date or Last Day for Presentation ...................27 Article 30 Tolerance in Credit Amount, Quantity and Unit Prices ....................27 Article 31 Partial Drawings or Shipments...........................................................27 Article 32 Instalment Drawings or Shipments ....................................................28 Article 33 Hours of Presentation..........................................................................28 Article 34 Disclaimer on Effectiveness of Documents.......................................28 Article 35 Disclaimer on Transmission and Translation.....................................29 Article 36 Force Majeure......................................................................................29 Article 37 Disclaimer for Acts of an Instructed Party.........................................29 Article 38 Transferable Credits ............................................................................30 Article 39 Assignment of Proceeds......................................................................32 Part I. The Modifications and Changes in General a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. p. Given 14 definitions at first and 12 interpretations to clarify the meaning of ambiguous terms, refer to Art 2 & 3. And we need pay attention to the change about ‘negotiation’. Agreed that the issuing bank must reimburse the nominated bank even though the documents are lost in the transmitting however, the presentation must be complying. Denied the practice that banks stipulate the clause about which the amendment should be accepted by beneficiary who did not send any rejected advice in certain time, refer to sub-article 10 f. Five banking days replaced reasonable time and seven banking days, refer to sub-article 14 b. Two kinds of form about refusing have been added in UCP600, refer to sub-article 16 c iii. Banks can now accept an insurance document that contains reference to any exclusion clause, refer to sub-article 28 i. The insurance document could be issued by proxies, refer sub-article 28 a. The clause for transport documents issued by Freight Forwarders has been deleted. The clause about carrying vessel propelled by sail only has been deleted since that kind of sailboat has dropped out of ocean transport. The expression is straightaway, precise and compact, for example, the wording for ‘unless the credit expressly stipulates…’ is not used in UCP600. The clause about shipment date has changed, refer to sub-article 19 a ii, 20 a ii, 21 a ii and 22 a ii, especially to note the effect to received bill of lading. Canceled the blocking frame about the form of clauses. The number of the clauses has decreased to 39 from original 49. The deferred payment credit could be discounted or purchased. Added the acts of terrorism as a kind of Force Majeure, refer to Art 36. Confirmed that the issuing bank may be a transferring bank, refer to sub-article 38 b. 1 Part II. Detailed Comparison for Each Article Article 1 Application of UCP The Uniform Customs and Practice for Documentary Credits, 2007 Revision, ICC Publication no. 600 (“UCP”) are rules that apply to any documentary credit (“credit”) (including, to the extent to which they may be applicable, any standby letter of credit) when the text of the credit expressly indicates that it is subject to these rules. They are binding on all parties thereto unless expressly modified or excluded by the credit. It is similar to the Art 1 of 500, however there are three differences: ‘any’ replace ‘all’ ‘when … rules’ replace ‘where … credit’ ‘unless … credit’ otherwise … credit’ replace ‘unless Article 2 Definitions For the purpose of these rules: Advising bank means the bank that advises the credit at the request of the issuing bank. Applicant means the party on whose request the credit is issued. Banking day means a day on which a bank is regularly open at the place at which an act subject to these rules is to be performed. Beneficiary means the party in whose favour a credit is issued. Complying presentation means a presentation that is in accordance with the terms and conditions of the credit, the applicable provisions of these rules and international standard banking practice. Confirmation means a definite undertaking of the confirming bank, in addition to that of the issuing bank, to honour or negotiate a complying presentation. Confirming bank means the bank that adds its confirmation to a credit upon the issuing bank’s authorization or request. Credit means any arrangement, however named or described, that is irrevocable and thereby constitutes a definite undertaking of the issuing bank to honour a complying presentation. Honour means: a. to pay at sight if the credit is available by sight payment. b. to incur a deferred payment undertaking and pay at maturity if the credit is available by deferred payment. c. to accept a bill of exchange (“draft”) drawn by the beneficiary and pay at maturity if the credit is available by acceptance. Issuing bank means the bank that issues a credit at the request of an applicant or on its own behalf. Negotiation means the purchase by the nominated bank of drafts (drawn on a bank other than the nominated bank) and/or documents under a 2 This article is new added, it clarifies many definitions which didn’t defined in 500, however, some items ever published in some publications of ICC including 500, such as Banking day, credit, etc. Of cause, some items are first presented in 600 or have been amended so that we should focus: ‘Complying presentation’ is a new term, under 500, we usually used ‘ the documents to be presented in compliance’, and the new one is more concision. In 500, the Art 2 gave the mean of credit and four types L/C, and in Art 6 the irrevocable and revocable L/C were listed at the same time, however, in 600, the revocable L/C has been deleted. So, we should note that all L/C are irrevocable under UCP600. Another difference is that the original four types are changed into three categories, which are called by a joint name - Honour, which includes available by sight payment, deferred payment and acceptance, and the Negotiation was deleted from the basic types. It was changed to a burchase behalf other than payment type. In 500, negotiation means the giving of value for draft(s) and/or document(s), which borrowed the jural definition. But there were many issues and problems in the banking practice, therefore it is amended in 600. And complying presentation, by advancing or agreeing to advance funds to the beneficiary on or before the banking day on which reimbursement is due to the nominated bank. Nominated bank means the bank with which the credit is available or any bank in the case of a credit available with any bank. Presentation means either the delivery of documents under a credit to the issuing bank or nominated bank or the documents so delivered. Presenter means a beneficiary, bank or other party that makes a presentation. in 500 Art14 F that is about payment, acceptance, and negotiation under reserve or against an indemnity has been deleted. And it is defined as ‘purchase…drafts…under a complying presentation’. What is the relationship between ‘honour’ and ‘negotiation’? Please think who are the other parties. Article 3 Interpretations For the purpose of these rules: Where applicable, words in the singular include the plural and in the plural include the singular. A credit is irrevocable even if there is no indication to that effect. A document may be signed by handwriting, facsimile signature, perforated signature, stamp, symbol or any other mechanical or electronic method of authentication. A requirement for a document to be legalized, visaed, certified or similar will be satisfied by any signature, mark, stamp or label on the document which appears to satisfy that requirement. It means the singular and plural in UCP600 has the same meaning, which might refer our Chinese language, I think. It is similar to the Art 6 C of 500, in fact, under UCP600, only irrevocable credit was stipulated. It is similar to the Art 20 B of 500 It is similar to the Art 20 D of 500, however the words ‘to be authenticated, validated’ are deleted from this clause. Branches of a bank in different countries are considered to be separate bank. It is similar to the last sentence of 500 Art 2 and ‘separate’ replaces ‘another’ Terms such as "first class", "well known", "qualified", "independent", "official", "competent" or "local" used to describe the issuer of a document allow any issuer except the beneficiary to issue that document. It is similar to the Art 20 A of 500 and more concision. Unless required to be used in a document, words such as "prompt", "immediately" or "as soon as possible" will be disregarded. It is similar to the Art 46 B of 500, but it is more rigorous and extensive since Art46 B was applicable to Dates for Shipment. The expression "on or about" or similar will be interpreted as a stipulation that an event is to occur during a period of five calendar days before until five calendar days after the specified date, both start and end dates included. It is similar to the Art 46 C of 500 3 The words "to", "until", "till", “from” and “between” when used to determine a period of shipment include the date or dates mentioned, and the words “before” and "after" exclude the date mentioned. The words “from” and "after" when used to determine a maturity date exclude the date mentioned. The terms "first half" and "second half" of a month shall be construed respectively as the 1st to the 15th and the 16th to the last day of the month, all dates inclusive. The terms "beginning", "middle" and "end" of a month shall be construed respectively as the 1st to the 10th, the 11th to the 20th and the 21st to the last day of the month, all dates inclusive. It is similar to the Art 47 A & added ‘between’ & ‘before’ It comes from ISBP P45(d), difference when ‘from’ was determine maturity date and shipment B of 500, note the used to period of It is the same with the Art 47 C of 500 It is the same with the Art 47 D of 500 Article 4 Credits v. Contracts a. A credit by its nature is a separate transaction from the sale or other contract on which it may be based. Banks are in no way concerned with or bound by such contract, even if any reference whatsoever to it is included in the credit. Consequently, the undertaking of a bank to honour, to negotiate or to fulfil any other obligation under the credit is not subject to claims or defences by the applicant resulting from its relationships with the issuing bank or the beneficiary. The section a. is the same with Art 3 of 500 except that it used the word ‘honour’. A beneficiary can in no case avail itself of the contractual relationships existing between banks or between the applicant and the issuing bank. b. An issuing bank should discourage any attempt by the applicant to include, as an integral part of the credit, copies of the underlying contract, proforma invoice and the like. It is similar to the Art 5 A ii of UCP500 but the italic documents were new added in UCP600. Article 5 Documents v. Goods, Services or Performance Banks deal with documents and not with goods, services or performance to which the documents may relate. It is similar to the Art 4 of 500 Article 6 Availability, Expiry Date and Place for Presentation a. A credit must state the bank with which it is available or whether it is available with any bank. A credit available with a nominated bank is also available with the issuing bank. 4 It is similar to the Art 10 B of 500. However this clause gives a new item ‘Availability’ and admits freely available, but in Art 10 of 500 only negotiable L/C could be admitted as freely available. b. A credit must state whether it is available by sight payment, deferred payment, acceptance or negotiation. It is the same with the Art 10 A of UCP500 c. A credit must not be issued available by a draft drawn on the applicant. It differs from ISBP P56 since ‘must not’ i/o ‘should not’, it is compelling denial. d. i. A credit must state an expiry date for presentation. An expiry date stated for honour or negotiation will be deemed to be an expiry date for presentation. ii. The place of the bank with which the credit is available is the place for presentation. The place for presentation under a credit available with any bank is that of any bank. A place for presentation other than that of the issuing bank is in addition to the place of the issuing bank. e. Except as provided in sub-article 29 (a), a presentation by or on behalf of the beneficiary must be made on or before the expiry date. Article 7 Issuing Bank Undertaking a. Provided that the stipulated documents are presented to the nominated bank or to the issuing bank and that they constitute a complying presentation, the issuing bank must honour, if the credit is available by: i. sight payment, deferred payment or acceptance with the issuing bank; ii. sight payment with a nominated bank and that nominated bank does not pay; iii. deferred payment with a nominated bank and that nominated bank does not incur its deferred payment undertaking or, having incurred its deferred payment undertaking, does not pay at maturity; It is a clause about expiry date and place for presentation and similar to the Art 42 of UCP500. However I don’t find the clause for ‘21 days’ like Art 43 A of UCP500 in UCP600. It is new added clause in UCP600. It is similar to the Art 42 B of UCP500. In UCP500, the liability of Issuing and Confirming Banks were prescribed in Art 9. In UCP600, they are divided into two clauses Art 7 and Art 8. In the new wording, it is more precise. This sentence of ‘a.i.’ declares the basic liability of Issuing Bank. Those sentences from ‘a.ii.’ to ‘a.v.’ declare that when the nominated bank dishonoured the Issuing Bank must perform its basic liability still. The item i is ‘Straight L/C’. iv. acceptance with a nominated bank and that nominated bank does not accept a draft drawn on it or, having accepted a draft drawn on it, does not pay at maturity; v. negotiation with a nominated bank and that nominated bank does not negotiate. b. An issuing bank is irrevocably bound to honour as of the time it issues the credit. 5 In UCP500, an irrevocable credit constituted a ‘definite undertaking of the Issuing Bank’, however, in this clause ‘b’, Issuing Bank is ‘irrevocably bound to honour’, which is the same meaning as above. c. An issuing bank undertakes to reimburse a nominated bank that has honoured or negotiated a complying presentation and forwarded the documents to the issuing bank. Reimbursement for the amount of a complying presentation under a credit available by acceptance or deferred payment is due at maturity, whether or not the nominated bank prepaid or purchased before maturity. An issuing bank's undertaking to reimburse a nominated bank is independent of the issuing bank’s undertaking to the beneficiary. This clause provides two undertakings of Issuing Bank, one is to reimburse a nominated bank, and the other is to pay to the beneficiary. In UCP500, although there were no details like UCP600, but the fact exited in the practice. Of course, the clear documents or complying presentation is necessary both in the past and future. In fact, this article reconfirms the first responsibility to pay beneficiary even a nominated bank (if any) by Issuing Bank. Article 8 Confirming Bank Undertaking a. Provided that the stipulated documents are presented to the confirming bank or to any other nominated bank and that they constitute a complying presentation, the confirming bank must: i. honour, if the credit is available by This clause is almost same as last article, however, there are some difference since the Confirming Bank is other than Issuing Bank. Therefore the sub-clause ‘a.ii’ is about negotiate without recourse when the Confirming Bank is nominated negotiating bank by L/C and ‘b’ increases the word ‘negotiate’ compare with Issuing Bank. a. sight payment, deferred payment or acceptance with the confirming bank; b. sight payment with another nominated bank and that nominated bank does not pay; c. deferred payment with another nominated bank and that nominated bank does not incur its deferred payment undertaking or, having incurred its deferred payment undertaking, does not pay at maturity; d. acceptance with another nominated bank and that nominated bank does not accept a draft drawn on it or, having accepted a draft drawn on it, does not pay at maturity; e. negotiation with a nominated bank and that nominated bank does not negotiate. Any way, a Confirming Bank acts the role of second Issuing Bank, therefore it should undertake the same responsibility as the Issuing Bank. ii. negotiate, without recourse, if the credit is available by negotiation with the confirming bank. b. A confirming bank is irrevocably bound to honour or negotiate as of the time it adds its confirmation to the credit. c. A confirming bank undertakes to reimburse another nominated bank that has honoured or negotiated a complying presentation and forwarded the documents to the confirming bank. Reimbursement for the amount of a 6 It is similar to the relative section of Art 7. complying presentation under a credit available by acceptance or deferred payment is due at maturity, whether or not another nominated bank prepaid or purchased before maturity. A confirming bank's undertaking to reimburse another nominated bank is independent of the confirming bank’s undertaking to the beneficiary. d. If a bank is authorized or requested by the issuing bank to confirm a credit but is not prepared to do so, it must inform the issuing bank without delay and may advise the credit without confirmation. It is similar to Art 9 C of UCP500. In fact the liability of Issuing and Confirming Bank is not changed essentially. Article 9 Advising of Credits and Amendments This article adds some new comparing with Art 7 of UCP500. element a. A credit and any amendment may be advised to a beneficiary through an advising bank. An advising bank that is not a confirming bank advises the credit and any amendment without any undertaking to honour or negotiate. It clarifies the independence of Advising Bank which does not undertake to honour or negotiate except that it is Confirming Bank at the same time. b. By advising the credit or amendment, the advising bank signifies that it has satisfied itself as to the apparent authenticity of the credit or amendment and that the advice accurately reflects the terms and conditions of the credit or amendment received. It is similar to Art 7 A of UCP500. c. An advising bank may utilize the services of another bank (“second advising bank”) to advise the credit and any amendment to the beneficiary. By advising the credit or amendment, the second advising bank signifies that it has satisfied itself as to the apparent authenticity of the advice it has received and that the advice accurately reflects the terms and conditions of the credit or amendment received. In banking practice, lots of L/C are advised though second advising bank, but the UCP500 has no relative clause. In UCP600, this is confirmed and the second advising bank has the same right with first one. d. A bank utilizing the services of an advising bank or second advising bank to advise a credit must use the same bank to advise any amendment thereto. e. If a bank is requested to advise a credit or amendment but elects not to do so, it must so inform, without delay, the bank from which the credit, amendment or advice has been received. f. If a bank is requested to advise a credit or amendment but cannot satisfy itself as to the apparent authenticity of the credit, the amendment or the advice, it must so inform, without delay, the bank from which the instructions appear to have been received. If the advising bank or second advising bank elects 7 It appeared in Art 11 B of UCP500, and now it has been clarified in special clause of UCP600. Please refer to R401 It is similar to Art 7 A of UCP500. It is similar to Art 7 B of UCP500. nonetheless to advise the credit or amendment, it must inform the beneficiary or second advising bank that it has not been able to satisfy itself as to the apparent authenticity of the credit, the amendment or the advice.. Article 10 Amendments a. Except as otherwise provided by article 38, a credit can neither be amended nor cancelled without the agreement of the issuing bank, the confirming bank, if any, and the beneficiary. b. An issuing bank is irrevocably bound by an amendment as of the time it issues the amendment. A confirming bank may extend its confirmation to an amendment and will be irrevocably bound as of the time it advises the amendment. A confirming bank may, however, choose to advise an amendment without extending its confirmation and, if so, it must inform the issuing bank without delay and inform the beneficiary in its advice. c. The terms and conditions of the original credit (or a credit incorporating previously accepted amendments) will remain in force for the beneficiary until the beneficiary communicates its acceptance of the amendment to the bank that advised such amendment. The beneficiary should give notification of acceptance or rejection of an amendment. If the beneficiary fails to give such notification, a presentation that complies with the credit and to any not yet accepted amendment will be deemed to be notification of acceptance by the beneficiary of such amendment. As of that moment the credit will be amended. The Art 9 D of UCP500 stipulated about amendments, in UCP600, ICC draws a separate clause about it. Then, we could presume that a mass of problems and issues about amendments happened in banking practice. Please note it does not state applicant at all. Section a is similar to Art 9 D i of UCP500. It is almost same as Art 9 D ii of UCP500. The Confirming Bank has the independence whether it extends its confirmation to an amendment. There is no change comparing with UCP500. It is the same with Art 9 D iii of UCP500. However, there is a case in dilemma. L/C required that the goods be shipped under four periods, each 100mt in Jan, Feb, Mar and Apr. Now Issuing Bank gave an amendment, which the shipment periods were changed to May, Jun, Jul, and Aug. Beneficiary did not send any notification and shipped the first 100mt in Jan, however, it shipped the second 100mt in Jun. Could we consider the beneficiary accept the amendment? If it is positive, is the acceptation valid? d. A bank that advises an amendment should inform the bank from which it received the amendment of any notification of acceptance or rejection. It is new content, however, in UCP600 draft of Jun 2006, the ‘should’ was i/o by ‘must’. The different tone decreases the liability of the bank that advises the amendment. e. Partial acceptance of an amendment is not allowed and will be deemed to be notification of rejection of the amendment. It is similar to Art 7 D iv of UCP500. f. A provision in an amendment to the effect that the amendment shall enter into force unless rejected by the beneficiary within a certain time shall be disregarded. It comes from ICC R315. ICC considered that those practices changed the irrevocable nature of the L/C irrevocable undertaking. And it disobeys some states’ laws. Article 11 Teletransmitted and Pre-Advised Credits and Amendments a. An authenticated teletransmission of a credit or 8 It is similar to Art 11 A i of UCP500, but the expression is stronger than it. amendment will be deemed to be the operative credit or amendment, and any subsequent mail confirmation shall be disregarded. If a teletransmission states "full details to follow" (or words of similar effect), or states that the mail confirmation is to be the operative credit or amendment, then the teletransmission will not be deemed to be the operative credit or amendment. The issuing bank must then issue the operative credit or amendment without delay in terms not inconsistent with the teletransmission. b. A preliminary advice of the issuance of a credit or amendment (“pre-advice”) shall only be sent if the issuing bank is prepared to issue the operative credit or amendment. An issuing bank that sends a pre-advice is irrevocably committed to issue the operative credit or amendment, without delay, in terms not inconsistent with the pre-advice. It is almost same as Art 11 A ii of UCP500. Section b is almost same as Art 11 C ii of UCP500, however, it deleted the original words ‘unless otherwise stated…’ which admitted Issuing Bank to state when, how or on what conditions, if those were not to occur without undue delay, but this state did not include a term such as ‘operative’. Refer R318 pls. This article renews the Art 11 of UCP500, and then the consecution of 600 is more express and has stronger tone. Article 12 Nomination This article has replaced Art 18 of UCP500. a. Unless a nominated bank is the confirming bank, an authorization to honour or negotiate does not impose any obligation on that nominated bank to honour or negotiate, except when expressly agreed to by that nominated bank and so communicated to the beneficiary. b. By nominating a bank to accept a draft or incur a deferred payment undertaking, an issuing bank authorizes that nominated bank to prepay or purchase a draft accepted or a deferred payment undertaking incurred by that nominated bank. It is a little similar to Art 18 B of UCP500, however, the instances are exiting largely in banking practices. Therefore, UCP600 gives the more detail clause to confirm the independent rights of nominated bank. It stipulates what is the meaning that issuing bank selects the nominated bank. It is a new clause too. c. Receipt or examination and forwarding of documents by a nominated bank that is not a confirming bank does not make that nominated bank liable to honour or negotiate, nor does it constitute honour or negotiation. It reaffirms that the nominated bank could ignore the issuing bank’s nomination if it is not confirmation bank. Article 13 Bank-to-Bank Reimbursement Arrangements It is similar Art 19 of UCP500. a. If a credit states that reimbursement is to be obtained In UCP500, Issuing Bank must give an 9 But the items about charges and applicant’s liable which stipulated in Art 18 C & D are deleted by UCP600, I have no idea about it!