UCP，Uniform Customs and Practice for Documentary Credits，即今天的跟单信用证统一惯例，恐怕是迄今为止业界自律性惯例中最负盛名的典范了。自从1933年该惯例一问世，全球的信用证业务就以 UCP为通用规则。目前最新的版本为UCP500，于1994年1月1日起开始实施。本栏目将陆续刊载UCP 500专家针对业界人士的提问做出的解释与回答，请读者关注。
1. Is a credit subject to UCP 500 if this fact is not mentioned in the SWIFT credit advice?
Query:
As per Article 1 of UCP 500, all L/C’s are issued subject to UCP 500 1993 revision, and to this effect there has to be an ‘express incorporation’ into the test of the credit itself. In this context, the SWIFT handbook is also seem to state that all L/C’s transmitted through SWIFT are to be automatically governed by ICC regulations.
There is an apparent contradiction between Article 1 of the UCP and SWIFT’s handbook (Chapter 4, MT 700 and MT 701). Article 1 of UCP requires an express incorporation of the UCP into the credit, contrary to the SWIFT guidelines that presume such an incorporation when issuing and transmitting a credit through the SWIFT network.
SWIFT-communicated credits are subject to the UCP because of what can be described as a generic incorporation. This type of incorporation automatically subjects each credit issued and communicated through the SWIFT network to the UCP. The lack of a statement as to the UCP’s incorporation or applicability in the SWIFT message itself means, nevertheless, that the credit is still subject to UCP. However, a specific reference to the incorporation of the UCP must be included in the onward transmission of the credit by the advising bank. Those parties who do not wish to incorporate the UCP in their SWIFT-communicated credit must override this automatic incorporation of the UCP. They must expressly declare in their message or by other arrangements, the exclusion of the UCP from their credits.
In practice, we often encounter situations where L/C’s transmitted through the SWIFT network do not mention the ‘express incorporation’ in the text of the L/C itself.
This poses a dilemma to negotiating banks, particularly those which do not possess SWIFT systems, as to whether they can consider themselves covered by UCP 500 regulations in the absence of such mention (as per Article 1) in the L/C itself, when the credit is advised through a bank on the SWIFT system.
Analysis:
Despite the content of Article 1 of UCP 500, which reads “ The Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No.500, shall apply to all Documentary Credits (including to the extent to which they may be applicable, Standby Letter(s) of Credit) where they are incorporated into the text of the Credit. They are binding on all parties thereto, unless otherwise expressly stipulated in the Credit”, SWIFT message types 700 and 701 invariably do not make reference to the fact that the credit is subject to UCP 500. the SWIFT user handbook does state that credits issued using the SWIFT transmission are automatically subject to the UCP in operation on the date of issuance.
Conclusion:
Whilst credits issued using the SWIFT system (without mention of UCP) would seem to be inconsistent with Article 1, it has long been accepted that these types of credits are subject to the UCP in operation on the day of issue. This has become a recognized practice.
An ICC opinion given in Publication No. 434 R.101 states: “The Commission considered that banks advising credits issued through SWIFT should ensure in accordance with SWIFT rules that the appropriate UCP incorporation clause was included in the credit advice sent to the beneficiary.”
The silence in the original SWIFT credit advice as to whether the credit was subject to UCP 500 does not imply that the credit is not subject to the rules. The advising bank should adhere to the opinion given in R. 101.
2. Can branches of a bank issue a standby L/C to each other?
Query:
On the legal front, can branches of a bank issue a standby letter of credit to each other within its network?
On page 4 and 5 of UCP 500 & 400 Compared, the changes in Article 2 stipulate the definition of ‘another bank’ for the purpose of UCP and documentary credit operations. Does this mean that the main function of the definition is to facilitate the operations only?
However, can this definition hold water in legal disputes?
We received legal advice that a standby cannot be issued between branches of a bank vs. the head office and other branches.
Analysis and conclusion
UCP500 Article 1 states that the rules shall apply to all documentary credits (including, to the extent to which they may be applicable, standby letter(s) of credit). UCP 500 makes no distinction between whether or not a bank may advise or confirm a documentary credit (including standby credits) through one of its own branches or its head office.
It is not uncommon for banks to request one of their branches to add their confirmation to a credit, and it should therefore follow that the same procedure should be available for standby credits. It is an issue for the beneficiary to decide whether the payment risk is adequately covered in such circumstances.
ICC publication No. 511 states: “This new classification ‘another bank’ does not change the legal position or exposure of the parties. It is acknowledged that both the Head Office and its branches are the same legal entity. Yet for the purposes of UCP and documentary credit operations, the branch is considered ‘another bank.”
Article 2 of UCP 500 does not pursue a general procedural objective. Article 2 simply states “For the purposes of these articles ┅”; it has no other intention or implication.
3. Redress if overseas branch of an issuing bank is unable to meet its obligations
Query:
I have been doing research on the interrelation of Article 2 and sub-Article 10(d) of UCP 500. Sub-Article 10(d) provides that by nominating another bank to add its confirmation to a credit, the issuing bank undertakes to reimburse such bank (hereinafter referred to as ‘confirming bank’) in accordance with the provisions of UCP 500. There might, however, be situations in which the issuing bank is not able to reimburse the confirming bank, for example, because of foreign exchange control regulations. In such a situation, the confirming bank might try to seek reimbursement from the bank of which the issuing bank is a branch.
The question is, then, whether the latter bank can successfully take the position that it is under no obligation to reimburse the confirming bank, given the last sentence of Article 2 of UCP 500.
Since the text of UCP 500 does not allow me to reach a conclusion, I would appreciate it if you could forward to me some documentation or other information which might shed light on the issue.
Analysis:
The question is as to whether the statement in Article 2 of UCP 500, “For the purposes of these Articles, branches of a bank in different countries are considered another bank”, may be construed to mean that a confirming bank may demand redress from the head office of a bank, one of whose (overseas) branches is unable to meet its obligations as an issuing bank due to intervention by a third party (e.g. government).
Conclusion:
Neither Article 2 nor Article 10 were drafted with this situation in mind. Indeed, they could not be, since each circumstance will be an individual case, and we cannot envisage any party other than a court of law being able to decide on the facts of a matter which goes beyond the bounds of UCP 500.
