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There is a need to understand the concept of modification and exclusion and when
it is appropriate and when it is not.
UCP 600 Article 6 - Availability, Expiry Date and Place for Presentation
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.
A credit must state an expiry date for presentation. An expiry date stated for
honor or negotiation will be deemed to be an expiry date for presentation
The place of the bank with which the credit is available is the place for presentation. The place
for presentation under a credit with any bank is that of any bank.
FAQS:
1) What is a facsimile signature?
2) What is electronic / mechanical method of authentication?
A place for presentation other than that of the issuing bank is in addition to the
place of the issuing bank.
To whom should beneficiary requests DEF Bank to present their documents to the
nominated bank or the issuing bank directly?
DEF Bank should be instructed to present documents to the NB especially if the latest
presentation date or expiry date is imminent. Else, documents must reach the IB on
OR before the latest presentation date (LPD) or expiry.
In sending the documents to the issuing bank, beneficiary takes the risk of nondelivery
In the event of IB finding discrepancies in the documents , beneficiary may find it
impossible to correct them within any remaining presentation period or expiry date.
This is not the ideal situation. This means that if Bank B decide to honour or
negotiate, this act must occur within the expiry date and presentation period, and
they must ensure that the documents reach the issuing bank within those dates.
Bank B may be unwilling to act on nomination unless the expiry place is
amended to their counter in Country B.
Bank A is entitled to reject the documents if not received by them at their
counters on or before expiry date and/or any latest presentation date.
Bank B is unwilling to accept the draft since it is not the confirming bank.
Beneficiary's address is in HK
Should the beneficiary draw the draft on the issuing bank and confirming bank if any ?
If no draft is presented, is this a discrepancy?
Absence of a draft, can issuing / confirming bank use this as a basis for refusal?
Are there any restrictions as to the location of the bank that is allowed to present
documents and act as negotiating bank?
Can a bank located in Macau / HK claim that they acted on the nomination and certify
that the documents were presented within LC validity?
The ICC position remains that China, HK and Macau would be different
countries for the purpose of the LC.
This position was given post the handover of HK to China.
Given this position, it may be unwise to act on the nomination unless the bank
is based in mainland China.
On June 5, Bank A receives a cancellation request from Bank I and to advise the
credit to Beneficiary C
An issuing bank is irrevocably bound to honour as of the time it issues the credit.
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.
Sub-article 7 (b) states "An issuing bank is irrevocably bound to honour as of the
time is issues the credit."
On the basis of this rule, the issuing bank is liable to honour as of the moment
the LC is issued and irrespective of when/if the beneficiary can be contacted.
As a result, the credit can only be cancelled with the consent of the beneficiary.
11
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
honour or negotiate without recourse.
13
A confirming bank must inform the issuing bank without delay if it is not
prepared to do so and may advise without confirmation
14
Bank A advised the credit to Beneficiary and added its confirmation without seeking
their consent
Bank I issues a Credit which is available "by payment at sight" with drafts drawn on
the confirming bank, Bank C
On June 1, documents presented were deemed clean by Bank C
Where the credit states "confirm" there is no requirement for a bank, that
is requested to confirm, to seek the agreement of the beneficiary before
doing so.
Where the credit states "may add", it is usual for the bank to advise the
credit on an unconfirmed basis stating that they are authorised to add
their confirmation upon receipt of a request from the beneficiary
together with payment of the confirmation fee (if charges are for account
of the beneficiary).
When should the confirming bank Bank C effect payment to the beneficiary?
A. June 1
B. June 4
C. Only when funds are received from the reimbursing bank
The beneficiary should be paid with the same value date that is requested
from the reimbursing bank. Ie. June 4
In the event that funds are not received on June 4, the confirming bank is
entitled to claim interest from the issuing bank.
A confirmation does not allow a confirming bank to pay on receipt of funds.
A confirmation is intended to cover the payment risk under that credit.
Bank I had originally advised the maturity date under a Deferred Payment Credit as
July 31 where Bank C had added their confirmation.
Prior to maturity, Bank C received an amendment from Bank I extending the
maturity date to September 30 to which the beneficiary is willing to give consent.
If Bank C is not willing to extend , does their undertaking to the beneficiary still holds?
Confirming bank advised the amendment stating that their confirmation is not
extended for the increase amount.
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 an any amendment without any
undertaking to honour or negotiate.
Beneficiary presented documents for USD 150000 and requested the confirming
bank to negotiate the full value without recourse
By advising the credit or amendment, the advising bank signifies that it has satisfied itself as to
apparent authenticity of the credit or amendment and that the advice accurately reflects the
terms and conditions of the credit or amendment received.
Is the confirming bank liable to negotiate for the entire USD 150000 under their
confirmation?
FAQS:
May an advising bank advise the credit through another bank at their own discretion?
Since the confirming bank has indicated that their confirmation do not apply to the
amendment, the confirming bank must negotiate a complying presentation upto the amount
of their confirmation ie. USD100,000. They have no undertaking to pay the remaining
USD50,000.
20
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.
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.
FAQS:
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.
FAQS:
1) Is beneficiary under an obligation to notify of acceptance or rejection?
2)
should we handle?
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22
Amendment received reduced the LC to USD 80M and Bank C advised the
amendment and confirmed the same.
Prior to amendment, several drawings have been made to the tune of USD50M
Does the confirmation added to a amendment by Bank C mean that all the parties(issuing
bank/confirming bank/beneficiary) have accepted the amendment?
Bank C need not expressly state that confirmation has been added to amendment.
If the amendment is silent with regard to the application of confirmation, the
amendment is automatically considered to carry the confirmation of Bank C.
If the beneficiary refuses the amendment, the terms and conditions under which
the beneficiary is required to comply revert to those prior to the issuance of the
amendment.
The same applies to the confirmation of the confirming bank.
Upon receipt of complying documents, ABC bank claims from the reimbursing
bank
On receipt of payment, ABC Bank held on to the funds and waited for the
maximum 5 banking days to lapse, after receipt of documents by the issuing
bank, before paying the beneficiary on the basis that no refusal notice has been
received from the issuing bank.
Claim from the reimbursing bank is only allowed where the bank has negotiated. Using
be held accountable by the beneficiary if they become aware that reimbursement has
already been received by the bank and no negotiation was offered or given. Mainly, it is
an issue of reputational risk and how the issuing bank would view such actions in the
light of them agreeing to route more business through that nominated bank.
ABC Bank forwarded documents without examination and state in their cover
letter to the issuing bank that they have negotiated.
A nominated bank acting on its nomination, a confirming bank, if any, and the
issuing bank shall each have a maximum of five banking days following the day of
presentation to determine if a presentation is complying. This period is not
curtailed or otherwise affected by the occurrence on or after the
date of presentation of any expiry date or last day for presentation.
Is it necessary for ABC Bank to keep issuing bank informed of its negotiation post
their acceptance ?
FAQS:
1)
ABC Bank is entitled to state in their schedule that they have negotiated
since the action taken by them would tantamount to "agreeing to
advance funds" as described in the definition of negotiation in article 2
28
Data in a document, when read in context with the credit, the document itself and
international standard banking practice, need not be identical to, but must not
conflict with, data in that document, any other stipulated document or the credit.
In documents other than the commercial invoice, the description of the goods,
services or performance, if stated, may be in general terms not conflicting with
their description in the credit.
If a credit requires presentation of a document other than a transport document,
insurance document or commercial invoice, without stipulating by whom the
document is to be issued or its data content, banks will accept the document as
presented if its content appears to fulfil the function of the required document and
otherwise complies with sub-article 14 (d). .
FAQS:
1)
Sub-article 14 (d):
LC calls for shipment of Stainless Steel Coils
FAQS:
1) Must all documents bear a goods description?
2) How do we determine compliance that a document fulfills its function?
3) How should a nominated bank handle non-documentary conditions?
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30
inspected and tested prior to shipment and have met all the published physical and
they need not be the same as those stated in the credit or in any other
stipulated document,
but must be within the same country as the respective addresses mentioned
in the credit
Contact details (telefax, telephone, email and the like) stated as part of the beneficiary's and
the applicant's address will be disregarded.
However, when the address and contact details of the applicant appear as part of the
consignee or notify party details on a transport document subject to articles 19, 20, 21, 22, 23,
24 or 25, they must be as stated in the credit.
The credit requires the 'actual' tested results. This means the data relating to the testing
rather than a statement of conformity.
The Certificate of Quality as presented is NOT acceptable
FAQS:
1) Must addresses appear on every document, even if different?
2) If the notify party details in BL omits the address, is that a discrepancy?
3) Is the exception mentioned above applicable if credit is silent on the consignee and notify party?
31
There must be evidence within the presentation ( NOT necessarily in the COQ
itself) of the name of the manufacturer and that the manufacturer must be the
company that issued the certificate.
Alternative, XYZ Co. could have indicated in the certificate that they were the
manufacturer.
Banks will need to determine compliance based on the documents alone. Hence, unless
there is an indication that XYC Co is a FOFSA member, the document will be considered
discrepant since the requirement that the document be issued by such a member
cannot be determined.
Is the issuing bank obliged to check the documents and refuse them as per UCP?
FAQS:
1) Does the concept of preclusion apply to the nominated bank?
2) Does preclusion apply even when nominated bank had indicated
discrepancies in documents presented?
ICC Opinion R331 - the issuing bank had no obligation to check the documents
since the credit had already expired as its liability and undertaking had ceased
thereof .
There was no credit in existence at the time of presentation
UCP can only be applied to credits that are valid at the time of presentation to
the nominated or issuing bank.
35
FAQS:
1) If documents presented under the Credit are discrepant, will this mean that the LC has ceased to
be available for subsequent drawing?
2) Instalment not made and subsequently accepted, are further instalments authorised?
SINGLE BL
SCENARIO
MULTIPLE BLS
SCENARIO
DIFFERENT ON
BOARD DATES
FOR EACH BL
BL 1
1 July
BL 1 , 2 & 3
1 July
Same vessel
3 July
Same vessel
3 July
5 July
Different POLs
5 July
Which date of shipment (on board notation) must be considered to determine whether
documents are presented with the presentation period?
37
ie. Country B
L/C terms and conditions AT OUR COUNTER, will that be regarded as a modification of Art 35?
39
ie. Country A
Bank N checked documents and found them in order.
However, documents were lost in transit between the nominated bank and the
issuing bank
If a credit states that charges are for account of the beneficiary and charges
cannot be collected or deducted from the proceeds, the issuing bank
remains liable for payment of charges.
As the credit is saying that the issuing bank will not effect settlement of any
charges not paid by the beneficiary, the whole of sub-article 37 (c) is
excluded by the wording.
.
A bank is under no obligation to transfer a credit except to the extent and in the
manner expressly consented to by that bank
The transferred credit must clearly indicate under what conditions amendments
may be advised to the second beneficiary. The transferred credit must clearly
indicate those conditions
The transferred credit must accurately reflect the terms and condition of the
Transferring Bank means a nominated bank that transfers the credit or in a freely
available credit, a bank that is specifically authorized by the issuing bank to
transfer and that transfers the credit
FAQS
1) If a transferable credit is confirmed by the transferring bank, is it a must that the transferred
credit be confirmed as well?
2) Are changes beyond sub-article 38(g) permissible?
3) Besides draft and invoice, can we allow for substitution of other documents?
A credit may be transferred in part to more than one second beneficiary but
cannot be transferred at the request of a second beneficiary to any subsequent
beneficiary
FAQS
1)
transfer under it, can we consider it as transferable?
2) In a freely available credit, can the issuing bank specify that any bank can transfer the credit?
3) Can a transferred credit be further transferred?
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First Beneficiary requests for transfer the LC to be fully transferred to the LC. The
credit if fully transferred to the 2nd Beneficiary by the Transferring Bank.
In such a case can the 2nd beneficiary present the documents directly to the issuing
bank ? Or is it required to be routed only through the Transferring bank ?
First demand will depend on the structure of the transfer. Where the period for
presentation has been curtailed, it may be possible to use the difference between
the period stated in the original credit and that stated in the transferred credit as
the
period.
In other circumstances, banks will usually allow between 24 and 48 hours given
that the 1st beneficiary is only required to present their invoices and draft, if any.
Sub-article 38 (k) requires that the documents be sent to the transferring bank.
In circumstances where there is a 100% transfer or where no substitution of
documents is to occur, a transferring bank that has not confirmed the transfer
may, in its advice of transfer, indicate that documents may be sent direct to the
issuing bank, under advice to the issuing bank.