国际结算与支付

第三节　国际结算与支付

Section 3　International Payment and Settlement

【The Fundamental】

To succeed in today’s global marketplace and win sales against foreign competitors, exporters must offer their customers attractive sales terms supported by appropriate payment methods. Because getting paid in full and on time is the ultimate goal for each export sale, an appropriate payment method must be chosen carefully to minimize the payment risk while also accommodating the needs of the buyer.

A. An Overview of the Payment Methods

There are four primary methods of payment for international transactions. During or before contract negotiations, both parties should consider which method is mutually desirable.

1. Cash-in-Advance.

With cash-in-advance payment terms, the exporter can avoid credit risk because payment is received before the ownership of the goods is transferred. Wire transfers and credit cards are the most commonly used cash-in-advance options available to exporters. However, requiring payment in advance is the least attractive option for the buyer, because it creates cash-flow problems. Foreign buyers are also concerned that the goods may not be sent if payment is made in advance. Thus, exporters who insist on this payment method as their sole manner of doing business may lose to competitors who offer more attractive payment terms.

2. Letters of Credit.

Letters of credit (L/C) are one of the most secure instruments available to internationaltraders. An L/C is a commitment by a bank on behalf of the buyer that payment will be made to the exporter, provided that the terms and conditions stated in the L/C have been met, as verified through the presentation of all required documents. The buyer pays his or her bank to render this service. An L/C is useful when reliable credit information about a foreign buyer is difficult to obtain, but the exporter is satisfied with the creditworthiness of the buyer’s foreign bank. An L/C also protects the buyer because no payment obligation arises until the goods have been shipped or delivered as promised.

3. Documentary Collections.

A documentary collection (D/C)^[12]is a transaction whereby the exporter entrusts the collection of a payment to the remitting bank (exporter’s bank), which sends documents to a collecting bank (importer’s bank), along with instructions for payment. Funds are received from the importer and remitted to the exporter through the banks involved in the collection in exchange for those documents. D/Cs involve using a draft^[13]that requires the importer to pay the face amount^[14]either at sight (document against payment) or on a specified date (document against acceptance). The draft gives instructions that specify the documents required for the transfer of title to the goods. Although banks do act as facilitators for their clients, D/Cs offer no verification process and limited recourse in the event of non-payment. Drafts are generally less expensive than L/Cs.

4. Open Account.

An open account transaction is a sale where the goods are shipped and delivered before payment is due, which is usually in 30 to 90 days. Obviously, this option is the most advantageous option to the importer in terms of cash flow and cost, but it is consequently the highest risk option for an exporter. Because of intense competition in export markets, foreign buyers often press exporters for open account terms since the extension of credit by the seller to the buyer is more common abroad. Therefore, exporters who are reluctant to extend credit may lose a sale to their competitors. However, the exporter can offer competitive open account terms while substantially mitigating the risk of non-payment by using of one or more of the appropriate trade finance techniques, such as export credit insurance.

B. The Documentary L/C

Although a seller to foreign markets assumes less credit risk in the documentary sale than in a sale on open account terms, a seller still faces the possibility that the buyer might breach its contract and not honor the documentary draft when it is presented for payment. Any number of reasons might cause a buyer to breach a contract, including the buyer’s inability to pay or to obtain financing. The buyer also might have found the merchandise at a cheaper price from another supplier. This situation could easily happen in a depressed market in which the price of the goods or commodities has dropped sharply since the time the buyer signed the contract.

Another problem is that an act of the buyer’s country might prevent the buyer from making payment on the documents. If such an event occurs, the seller may have to wait extended periods to receive payment. Thus, a seller could quite possibly have its goods arrive at a foreign port only to find that the buyer, for one reason or another, is unable or unwilling to pay for them.

Ideally, the seller would prefer not to relinquish title to the goods until it is certain that it will be paid. The buyer, on the other hand, ideally would want to postpone payment until it is assured that the goods are what was contracted for and are no longer subject to the seller’s control or disposition. In order to reconcile these conflicting objectives and reduce the risks involved in an international sale of goods transaction, the parties may arrange for payment under a letter of credit.

1. L/C Defined.

L/C are flexible commercial instruments adaptable to a broad range of commercial use. They are the most common form of payment for the international sale of goods. Documentary credits are widely used in sale of goods transactions, and so the discussion begins with this type.

The letter of credit is defined as a conditional undertaking by a bank, issued in accordance with the instructions of the account party, addressed to or in favor of the beneficiary. The bank promises to pay, accept, or negotiate^[15]the beneficiary’s draft up to a certain sum of money, in the stated currency, within the prescribed time limit, upon the presentation of stipulated documents. In a sales transaction, the account party is the buyer, the beneficiary is the seller, and the issuing bank^[16](or issuer) is the buyer’s bank. In an L/Ctransaction, the promise of an internationally recognized bank is substituted for that of the buyer. As long as the seller complies with all conditions in the L/C, such as tendering the documents called for in the L/C within the time allowed, the seller has more assurance of being paid than in any other form of sale except by receiving cash in advance. L/Cs specify whether the issuing bank will pay sight drafts^[17]or accept time drafts^[18]presented by the beneficiary. Typically, bank L/Cs call for the seller’s draft to be accompanied by shipping documents together with a number of other collateral documents. The shipping documents could be a negotiable ocean bill of lading, a nonnegotiable or straight ocean bill of lading, an air waybill, or a multimodal transport document. Collateral documents that might be required in the L/C include a commercial invoice describing the goods, a marine insurance policy, a consular invoice, a country of origin certificate, a certificate of analysis or inspection, various customs declarations, packing slips, and almost any other documentation demanded by the buyer.

The use of the L/C in international trade is well described by the court in Voest-Alpine International Corp. v. Chase Manhattan Bank, 707 F.2d 680 (2d Cir. 1983):

“Originally devised to function in international trade, a letter of credit reduced the risk of nonpayment in cases where credit was extended to strangers in distant places. Interposing a known and solvent institution’s (usually a bank’s) credit for that of a foreign buyer in a sale of goods transaction accomplished this objective. A typical letter of credit transaction, as the case before us illustrates, involves three separate and independent relationships—an underlying sale of goods contract between buyer and seller, an agreement between a bank and its customer(buyer) in which the bank undertakes to issue a letter of credit, and the bank’s resulting engagement to pay the beneficiary (seller) provided that certain documents presented to the bank conform with the terms and conditions of the credit issued on its customer’s behalf. Significantly, the bank’s payment obligation to the beneficiary is primary, direct, and completely independent of any claims which may arise in the underlying sale of goods transaction.

Letters of credit evolved as a mercantile specialty entirely separate from common-law contract concepts and they must still be viewed as entities unto themselves. Completely absorbed into the English common law by the 1700s along with the Law Merchant—of whichit had become an integral part by the year 1200—letter of credit law found its way into American jurisprudence where it flourishes today. Its origins may be traced even more deeply into history. There is evidence letters of credit were used by bankers in Renaissance Europe, Imperial Rome, ancient Greece, Phoenicia, and even early Egypt. These simple instruments survived despite their nearly 3 000-year-old lineage because of their inherent reliability, convenience, economy, and flexibility.”

2. Law Applicable to Letters of Credit.

L/Cs are recognized in all legal systems of the world. However, perhaps the most important rules affecting L/Cs are not laws at all, but a privately developed set of guidelines based on the customs and commonly accepted practices of merchants and bankers, known as the Uniform Customs and Practice for Documentary Credits.

(1) The Uniform Customs and Practice for Documentary Credits.

The Uniform Customs and Practice for Documentary Credits (UCP)^[19]is a document that international bankers know well. It is a set of standardized rules for issuing and handing L/Cs, drafted and published by the International Chamber of Commerce (which also publishes Incoterms) with the assistance of the international banking community. The UCP establishes the legal format of L/Cs, sets out rules by which banks process letter of credit transactions, and defines the rights and responsibilities of all parties to the credit. Because the UCP has been drafted primarily by banks, its provisions primarily protect them in any transaction. The UCP was first introduced in the early 1930s, with the latest revision (UCP No. 600) published in 2007. The UCP is in use in virtually every nation of the world including China.

(2) Legal Effect of the UCP.

The International Chamber of Commerce is not a government or lawmaking body, and the UCP is not law. The UCP “governs” L/Cs only if its provisions are incorporated into the L/Cs by reference. The great majority of international letters of credit issued today state that they are to be interpreted according to the UCP. The UCP is widely recognized by judges in deciding letter of credit cases; reference to it appears in virtually every reported decision on international letters of credit.

3. Relation of the Letter of Credit to the Underlying transaction.

The L/C is a separate contract between the account party and the issuing bank. Under this principle of independence, the L/C is separate from the underlying contract between buyer andseller on which it is based. The following case, Maurice O’Meara Co. v. National Park Bank of New York, is generally considered by writers in the United States to be the classic statement of the legal nature of L/Cs.

The rule of Maurice O’Meara is recognized in UCP 500, Article 3: Credits, by their nature, are separate transactions form the sales or other contracts on which they may be based and banks are in no way concerned with or bound by such contracts…Consequently, the undertaking of a bank to pay, accept and pay drafts or negotiate and/or fulfill any other obligation under the credit, is not subject to claims or defenses by the applicant [account party] resulting from his relationships with the issuing bank or the beneficiary. A beneficiary can in no case avail himself of the contractual relationships existing between the banks or between the applicant (account party) and the issuing bank.

4. Rights of the Account Party in Cases of Fraud.

Under the UCC, a partial exception has been created to the preceding rule if the L/C is fraudulent, forged, or fraud in the transaction exists in the underlying sales contract. This exception is governed by the UCC because the UCP is silent on the question of fraudulent documents. Under this exception, if a seller presents documents for a nonexistent shipment of goods, fraud in the transaction occurs. In such cases, a bank can still honor a demand for payment. If, however, the bank does choose to honor a demand for payment despite being notified of fraud, the buyer may petition a court for an injunction that would prevent the bank from paying on the credit. If the demand for payment is made by a holder in due course, however, then the bank must honor the demand for payment.

Compare the last case, Maurice O’Meara, with the following case, Sztejn v. J. Henry Schroder Banking Corp. It presents a clear distinction between a mere breach of warranty and fraud. O’Meara involved a breach of warrant—the seller shipped newsprint paper of inferior quality. Sztejn involves fraud in the transaction—the presentation of documents covering goods, and the shipment of bales of worthless rubbish. The Sztejn case is one of the most widely cited cases in U.S. L/C law.

5. A Letter of Credit Transaction.

The following discussion examines how an L/C is used in a sale of goods transaction. For ease in understanding, the parties are referred to as “buyer” and “seller” instead of their banking terms, account party and beneficiary.

Once the sales contract calls for payment under an L/C, the buyer becomes responsible for applying to its bank for the L/C. The application is prepared on the bank’s form. Theapplication requests that the issuing bank honor the seller’s drafts by paying or accepting them(as the case may be) up to a specified amount (usually the contract price), but only if the drafts are accompanied by specified documents. The buyer will specify in the application which documents must be presented in order for the bank to rightfully honor the draft. It will also specify exactly what those documents must say. For instance, the buyer might call for the L/C to require that the bill of lading be negotiable, or marked “freight prepaid,” or that the packing slip or certificate of analysis contain certifications as to quality, weight, or markings. It probably would require the bank to honor the L/C only if the documents are accompanied by a marine insurance policy (such as in a CIF contract), or a country-of-origin certificate. The application may also specify any other requirements for honoring the draft desired by the buyer. To illustrate, suppose the buyer does not want the seller to make partial shipments because of the increased risk of damage or loss to the goods. It knows that unless the L/C states otherwise, the issuing bank is permitted to honor drafts on partial shipments. Therefore, it must indicate on the application that drafts drawn under the L/C are not to be honored in the event that the documents show a partial shipment.

Thus, the application for the L/C forms a contract between the buyer and its bank (not between buyer and seller), with the buyer agreeing to reimburse the bank for any sums properly paid out according to the terms of the L/C. If the bank does not act according to its contract with its customer, it may not be entitled to reimbursement.

(1) Irrevocability of Letters of Credit.

According to UCP 500, credits may be either revocable or irrevocable, but “in the absence of such indication the credit shall be deemed to be irrevocable.” Revocable L/Cs are seldom used in international commerce (except perhaps between some corporate subsidiaries) because they do not provide sufficient protection to the beneficiary. According to UCP600, a credit is irrevocable even if there is no indication to that effect.

(2) Advising the Letter of Credit.

The L/C will be issued and sent to the seller via a foreign correspondent bank located in the seller’s country. This bank, known as the advising bank^[20], merely informs or “advises” the seller that an L/C has been issued in its favor and that the L/C is available for the seller. Under UCP 600, An advising bank that is not a confirming bank advises the credit and anyamendment without any undertaking to honor or negotiate. 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.

(3) Seller’s Compliance with the Credit.

Until the seller receives the L/C, it may not want to package the goods, arrange transportation, or prepare the documentation. This reluctance is because the seller must first read the L/C and follow its instructions carefully in order to be paid by the bank.

First, the seller will want to compare carefully the terms of the L/C with the terms of the underlying contract of sale. If the documents show significant differences, the seller would want to contact the buyer to inquire why and resolve the difference. For instance, assume that a sales contract called for shipment of “4 000 lbs. washed white goose down in machine-compressed bales,” and the L/C reads “3 000 lbs. washed white goose down in machine-compressed bales.” The seller must stop and inquire why a difference appears in the quantities expressed. Did the buyer change its mind and decide to purchase only 3 000 lbs. instead of the 4 000 lbs. agree to? If so, why wasn’t the seller contacted to reconfirm the new order? Perhaps the bank erred in transmitting the L/C. Whatever the reason, the seller should do nothing until the problem is resolved or until an amended L/C is received. If the seller ships 4 000 lbs., its drafts may be refused and it may only get paid for 3 000 lbs.; if it ships 3 000 lbs., it may be losing a sale for the 1 000 lbs. difference.

The seller would want to examine many other provisions of the L/C before shipping; the L/C might prompt other questions for which the seller would want answers. In the above example, can the seller ship the goods within the time called for in the L/C? Can the down be washed, sorted, baled, delivered to the carrier, and an onboard bill of lading received within the time limits set in the L/C? If an export license is needed in order to export goose down from the seller’s country, can it be processed and received on time? Although obtaining a license is not so much a problem for exporters of products such as down, corn, or pencils, it can be a real headache for exporters of high-tech products! An L/C that calls for shipment aboard a certain vessel sailing on a certain date may not be possible, and the seller may want to request an extension in an amended L/C. Is the total amount of the L/C sufficient to cover the drafts? Is it in the currency called for in the sales contract? Do the provisions for insurance and the payment of freight charges meet the terms of the contract of sale, or are they agreeable to the seller? Does the L/C allow partial shipments? Has the buyer made any last-minutechanges to the order that should be included in a new L/C? Finally, can the documents and the draft be presented to the issuing bank before the date of expiration of the L/C?

If the seller is unable to comply with the letter of credit for any reason, the buyer must be contacted immediately so that an amended credit can be issued. In one case, for instance, a U.S. furniture manufacturer received an L/C form Kuwait calling for the shipment of furniture in a certain type of ocean container. Only after packaging and loading did the manufacturer realize that a few pieces would not fit into the required container. If the manufacturer’s documents had shown less furniture than was called for in the L/C, its draft might not have been paid. An amended credit had to be issued covering the new quantity before it was safe for the furniture manufacturer to ship. Due to the added cost of small shipments, the potential for damage, and the difficulty of handing break-bulk cargo in modern Middle Eastern ports, the buyer simply reduced its order rather than have the pieces shipped separately.

(4) Collecting on the Credit.

Once the seller knows that it is able to meet the terms of the L/C, it is ready to prepare the draft and shipping documents and present them to a negotiating bank in its city to be forwarded to the issuing bank. The UCP permits the issuing bank to “nominate” a negotiating bank. If not, the documents may be negotiated through the advising bank or another bank of the seller’s choice. The beneficiary must present the documents within a specified number of days after shipment, or prior to the expiration of the L/C (known as the expiry date), whichever is earlier. If no time period is specified, the UCP requires submission of shipping documents to banks within twenty-one days of shipment. Both the expiration and presentment dates must be met or the documents will be rejected (unless the defect is waived by the buyer). This requirement is an assurance to the buyer that the goods have been shipped on time.

The negotiating bank then transmits the documents to the issuing bank, which then inspects them for accuracy, irregularities, and discrepancies against the L/C. Documents that are not in order may be rejected. If the issuing bank decides to reject, it must notify the negotiating bank within seven banking days. If the issuing bank pays out on documents that do not conform to the L/C, then the bank will be liable to its customer, the buyer, for doing so. If the documents are in order, the bank will normally pay the draft at sight or at maturity, or accept the time draft, and then negotiate the shipping documents to the buyer. Thus, with bill of lading in hand, properly indorsed by the bank, the buyer may claim its goods from the carrier.

6. Examination of the Documents under the UCP.

From this overview of an L/C transaction, the next section performs a more carefulanalysis of how the seller’s documents must conform to the requirements of the L/C. According to the independence principle, the obligation of the issuing bank to honor the beneficiary’s draft under an L/C is not dependent on the contract of sale between the buyer and seller. Rather, the obligation of the bank to honor drafts is conditional solely upon the beneficiary’s doing exactly what is requested in the L/C. This notion is clear throughout the UCP. Article 4 states that “in credit operations all parties concerned deal with documents, and not with goods, services and/or other performances to which the documents may relate.”Indeed, banks deal mainly in the appearance of documents. Article 14 requires that the issuing bank “determine on the basis of the documents along whether or not they appear on their face to be in compliance with the terms and conditions of the credit.” As long as the documents are in apparent good order, appear valid on their face, and correspond to the terms of the L/C, the bank must honor the beneficiary’s draft, and will be able to seek reimbursement from its customer, the buyer, regardless of the quality or condition, or even the existence, of the goods. That the goods might have gone to the bottom of the ocean during their voyage is irrelevant to the bank’s obligation. That the goods inside the container are not even close to what the buyer ordered is irrelevant. The bank has no obligation to check the quality or condition of the goods, nor to investigate rumors about them. The UCP does not require the bank to examine any documents not called for in the L/C.

(1) The Rule of Strict Compliance.

The prevailing rule established by the courts for examining documents is the strict compliance rule^[21]. According to this view, the terms of the documents presented to the issuing bank must strictly conform to the requirements of the L/C. when a document contains language or terms different from the L/C, or some other apparent irregularity, it is said to contain a discrepancy. Documents that do not conform are discrepant. The documents and L/C are literally put side by side by a document checker at the issuing bank and the terms are matched. This does not mean that every “i” must be dotted and every “t” crossed. (As one court stated, it’s not a discrepancy if Smith is spelled “Smithh.”) Some typographical errors are excusable, of course. But the thrust of the rule is that every provision of the bill of lading, commercial invoice, insurance policy, and other required shipping documents must match the L/C. Even a small discrepancy can cause the bank to reject the documents. If the issuing bank pays against documents that contain a discrepancy, then the bank cannot seek reimbursementfrom the account party, its customer.

(2) Avoiding and Handing Discrepancies.

Actually, estimates are that more than half of the L/C transactions in the Untied States involve discrepant documents. Many discrepancies occur because of clerical errors. Thus, the seller’s export clerks should follow the L/C when preparing their invoice and shipping documents—more than one export manager has suggested that “any words found misspelled in the L/C, should be misspelled in the documents.” Other discrepancies might occur as a result of documents prepared by an insurance agent, by the seller’s freight forwarder, or by the carrier. For instance, if the L/C requires an onboard bill of lading and the representative of the carrier that issued the bill of lading forgot to sign, initial, or date it to indicate that the goods have been loaded, the bank will rightfully reject the documents. This type of error should be caught and corrected early.

The best advice is that all parties use extreme care in preparing documents. Sellers should request that as few documents as possible be required in the L/C, to lessen the chance of mistake. The seller should be certain that the freight forwarder is experienced in documentation. In addition, the seller should be sure that all deadlines are met—that the goods are shipped on time and the documents promptly presented. Finally, the seller’s international banker should review the documents and give an opinion as to whether they are in compliance with the L/C. The seller should not ship until all mistakes in the documents are corrected.

7. Relation between Negotiating and Issuing Banks.

International banks generally have cooperative relations with one another. The UCP was drafted with the idea of fostering this cooperation. For instance, in the event that an issuing bank dishonors a draft and rejects discrepant documents, the UCP requires that it give immediate notice by telecommunication to the negotiating bank describing the discrepancies. The issuing bank then holds the documents until it receives instructions from the negotiating bank, or it returns the documents.

[The Reflections]

1. What are the primary methods of payment for international transactions?

2. What’s the relation between the letter of credit and the underlying transaction?

3. What does the rule of strict compliance mean?

4. What’s the relation between negotiating bank and issuing banks?

【The In-depth】

The Effect of UCP 600 Upon U.C.C. Article 5 With Respect to Negotiation Credits and the Immunity of Negotiating Banks from Letter-of-credit Fraud

A. The Nature of a Negotiation Credit

1. Necessary Terms.

Neither Article 5 nor UCP 600 nor ISP 98 defines a negotiation credit. But, UCP 600 includes a new definition of “negotiation”, which will be influential under the other regimes, and all three regimes authorize the issuer to nominate a person or persons “to negotiate” the documents required by the issuer’s letter of credit. The persons nominated to negotiate are typically banks, and will be referred to as “nominated negotiating banks”.

The nature of a negotiation credit has been adumbrated primarily by judicial decisions in the United States, the United Kingdom, the Commonwealth of Nations, and jurisdictions like Hong Kong that apply principles of English commercial law. The substantive significance of a negotiation credit requires a clear expression of the intention to create one. In order to be a negotiation credit, a letter of credit must contain both a clear undertaking by the issuer to reimburse a nominated negotiating bank that has negotiated and a clear identification of the bank or banks nominated to negotiate.

Various formulations have been recognized. If drafts are among the required documents, a traditional clause provides that “[the issuer] agrees with the drawers, endorsers and bona fide holders of drafts drawn under, and in compliance with the terms of this letter of credit that the same shall be duly honored upon presentation and delivery of the documents herein specified.” A more contemporary approach is for the issuer to check the box in the letter of credit stating that the credit is “available by negotiation”. A letter of credit without a clear undertaking and identification is a “straight letter of credit” (a “straight credit”), and not a negotiation credit.

Confirmation is not negotiation. A negotiation credit does not require confirmation. Furthermore, confirmation of a straight credit that does not nominate a negotiating bank makes the letter of credit available with the confirmer as well as the issuer but does not create anegotiation credit.

Vague, general references to “negotiation” in a letter of credit do not create a negotiation credit. In Credit Agricole Indosuez v. Banque Nationale, the Singapore Court of Appeal, for example, reversed a lower court determination that Banque Nationale was a negotiating bank. Because a standard letter of credit does not provide for negotiation, the Court of Appeal panel reasoned that the intention to issue a negotiation credit should be clear and explicit. In dictum, the panel observed that the language “negotiation is permitted,” standing alone, would be insufficient, and went on to hold that three general references to “negotiation” plus requiring the presentation of drafts did not created a negotiation credit.

A negotiation credit must identify the nominated negotiating banks. The following traditional clause, for example, runs to all banks and nonbanks that are bona fide holders of drafts drawn under and in compliance with the letter of credit: “[the issuer] agrees with the drawers, endorsers and bona fide holders of drafts drawn under, and in compliance with the terms of this letter of credit that the same shall be duly honored upon presentation and delivery of the documents herein specified.”

The nomination to negotiate can be to “any bank,” or restricted to any bank in a designated country or city, or to a single office of a single bank. Nevertheless, an issuer’s acknowledgement that an advising bank that had not been nominated could negotiate, followed by that bank’s prejudicial reliance upon the acknowledgment, estops the issuer to refuse reimbursement.

A letter of credit providing for payment at sight by the issuer or a confirmer can be a negotiation credit. So can a letter of credit providing for the acceptance of time drafts by the issuer or a confirmer or for a deferred payment undertaking by the issuer or a confirmer.

2. The Significance of Negotiation.

If a nominated negotiating bank acts upon its nomination to negotiate, there are significant consequences. The nominated bank, for example, can present the required documents for reimbursement in its own name. Furthermore, as long as the beneficiary made a timely conforming presentation to the nominated negotiating bank, the issuer and a confirmer are obligated to reimburse the negotiating bank even though the issuer or the confirmer did not receive the request for reimbursement and the required documents until after the expiration of the deadline for the presentation of shipping documents or even after the expiration of the letter of credit. Indeed, some negotiation credits expressly designate an expiration date and an earlier deadline for presentation of shipping documents as the last date for negotiation of thedocuments subject to the deadline. A nominated negotiating bank that had given the beneficiary value in good faith and without notice of material fraud for a conforming presentation is also not subject to a material letter-of-credit fraud defense that the issuer or a confirmer has against the beneficiary, or to an action by the applicant to enjoin reimbursement.

3. Determining whether Negotiation has occurred.

In rare cases, the issuer’s authorization of a bank to examine a presentation of documents is coupled with an authorization for the bank to act as the agent of the issuer instead of as a negotiating bank. A beneficiary also can instruct a nominated negotiating bank merely to collect the documents from the issuer or a confirmer without negotiation. The beneficiary’s application for negotiation by a nominated negotiating bank, moreover, may or may not be accepted. A nominated negotiating bank that has not agreed to negotiate is free to decline to act upon its nomination.

If the beneficiary makes a timely presentation of the required documents to a nominated negotiating bank that neither is a confirmer nor has made a special agreement to negotiate and that bank refuses to negotiate, the timeliness of the presentation is not affected. Presentation consists of the receipt of the required documents at an authorized place. Negotiation plays no part in it. A nominated negotiating bank that does not choose to negotiate, moreover, ordinarily will act as a collecting bank for the beneficiary, presenting the documents to the issuer or a confirmer upon the beneficiary’s behalf. UCP 600 facilitates this by requiring the issuer and a confirmer to honor a letter of credit that is available with a nominated negotiating bank that has declined to negotiate.

B. The Limited Article 5 and ISP 98 Treatment of Negotiation Credits

Although a few Official Comments discuss other aspects of negotiation credits, Article 5 statutory treatment focuses upon the immunity from remedies for material letter-of-credit fraud of a nominated negotiating bank that has given value for the required documents in good faith and without notice of the fraud. “Nominated person” is defined but “negotiation credit” and“negotiation” are not, and confirmers are the only nominated banks that must undertake to give the value that they have been nominated to give. Nevertheless, if a negotiation credit exists, a nominated negotiating bank that has given value in good faith and without notice of material letter-of-credit fraud is not subject to the issuer’s or a confirmer’s material fraud defense, or to the applicant’s action to enjoin reimbursement, and can recover for the issuer’s or a confirmer’s wrongful dishonor. In order to enhance the probability of honor, a confirmer that has honored its confirmation has greater protection. A confirmer has immunity fromremedies for material letter-of-credit fraud as long as it had honored in good faith. It is immaterial that the confirmer had had notice of alleged material fraud.

ISP 98, Rule 2.04, dealing with nomination, is the principal ISP 98 treatment of negotiation credits. A standby can nominate a bank or banks to negotiate. A nominated negotiating bank that has not undertaken to act is not obligated to do so. Also, a nominated bank is not authorized to bind the person making the nomination. Comment 3 to Rule 2.04 explains that a negotiation standby authorizes a nominated negotiating bank to purchase the required documents and to obtain reimbursement. A negotiation standby must identify the banks nominated to negotiate. A freely negotiable standby nominates “any bank,” but it is more common to nominate any bank in a particular city. Unless the standby clearly indicates that it is freely negotiable, nomination is considered to be limited to the specific nominees.

Coupled with Article 5’s deference to most conflicting UCP provisions that have been incorporated into a letter of credit, the limited Article 5 treatment of negotiation credits accommodates the UCP 600 definition of negotiation. ISP 98’s minimal treatment of negotiation credits likewise could make the UCP 600 definition of negotiation influential with respect to negotiation standbys.

C. Conclusion

UCP 600 clarifies the concept of negotiation by requiring the purchase of the required documents by a nominated negotiating bank, either by advancing funds or by agreeing to advance funds as directed by the beneficiary and subsequently making the advance. Funds are advanced “to” the beneficiary when the funds are disbursed in accordance with the beneficiary’s instructions. The actual payments can be to third parties.

The banking day upon which reimbursement is due to a nominated negotiating bank that has negotiated and forwarded the documents is the UCP 600 deadline for performance of an executory promise to make an advance. With respect to letters of credit payable at “sight,”reimbursement is due either upon the issuer’s or a confirmer’s determination that a complying presentation of documents has been made or upon the issuer’s or a confirmer’s preclusion to deny the existence of a complying presentation due to failure to give effective notice of refusal of the documents. With respect to letters of credit available by acceptance or by a deferred payment obligation, reimbursement is due upon the maturity of the accepted time draft or the maturity of the deferred payment obligation.

Subject to the deadline of the banking day upon which reimbursement is due, both the amount and the timing of a nominated negotiating bank’s advance are left to the parties.However, negotiation does not occur until the promised purchase price has been advanced. A promise to advance the purchase price to a fraudulent beneficiary does not confer immunity from letter-of-credit fraud prior to its performance.

The UCP 600 Drafting Group has not commented upon the significance of the new definition of negotiation for the purchase of the required documents in exchange for the satisfaction or the securing of an antecedent debt. Nevertheless, the UCP 600 requirement that funds be advanced implicitly rejects including satisfaction of a truly antecedent debt of the beneficiary to the negotiating bank or the securing of a truly antecedent debt of the negotiating bank to the beneficiary as all or part of the price for the documents. On the other hand, a contemporaneous advance in anticipation of negotiation of the required documents should satisfy the definition of negotiation. In Nanyang Commercial Bank v. Man Sam Kwan, for example, the issuer of a back-to-back letter of credit initially recorded the amount paid to the beneficiary of the back-to-back letter of credit as a debt of the applicant but then credited the applicant with the purchase price of the documents required by the primary letter of credit. The court found that negotiation took place under UCP 400.

Precluding a nominated negotiating bank from using the payment or the securing of an antecedent debt to purchase required documents is an undesirable and unnecessary restriction upon negotiation that previously was permissible. It also is unfortunate that the UCP 600 definition of negotiation does not articulate the inherent distinction between the executory negotiation created by a promise to make an advance in the future and the actual negotiation resulting from performance of the executory promise. In order to forestall unnecessary immunity from material letter-of-credit fraud, the courts must draw this distinction. A nominated negotiating bank that acquires notice of material fraud prior to performance of an executory promise to make an advance that has been made to the beneficiary alone need not be immunized from remedies for the fraud. The negotiating bank can avoid loss by using the fraud to justify nonperformance of its executory obligation. The UCP 600 definition of negotiation otherwise conforms to Article 5 policy with respect to immunity from remedies for material letter-of-credit fraud and exemplifies the ICC tradition of periodic refinement of the UCP.

(Abridged from the identically named article by Rechard.F.Dole.JR,54 Wayne L. Rev. 735 (2008))

[The Terms]

1. UCP: 跟单信用证统一惯例（Uniform Customs and Practice for DocumentaryCredits，简称UCP）

2. ISP98:《国际备用证惯例》（International Standby Practices 1998）

3. negotiation credits: 议付信用证

4. negotiation: 议付

5. letter-of-credit fraud: 信用证欺诈

6. negotiation bank: 议付行

7. draft: 汇票

8. drawer: 出票人

9. endorser: 背书人

10. bona fide holder: 善意持有人

11. straight letter of credit: 直接信用证，简明信用证

12. advising bank: 通知行

13. time draft: 远期汇票

14. beneficiary:受益人

15. Drafting Group: 起草小组

[The Discussions]

1. The significance of clarification of the concept of negotiation in UCP 600.

2. The changes UCP 600 has brought to negotiation credits legal system.

3. The distinction between UCP 600 and Article 5 with respect to the immunity of negotiating banks from letter-of-credit fraud.

【The Further Sources】

Pietrzak, Lisa, Sloping in the Right Direction: A First Look at the UCP 600 and the New Standards as Applied to Voest-Alpine, 7 Asper Rev. Int’l Bus. ＆ Trade L. 179,2007.

Janet Koven Levit, “Bottom-up Lawmaking through a Pluralist Lens: the ICC Banking Commission and the Transnational Regulation of Letters of Credit”, 57 Emory L.J. 1147,2008.

Bergami, Roberto,” UCP 600 rules-changing letter of credit business for international traders? ”, Int. J. Economics and Business Research, Vol. 1, No. 2, 2009

【注释】

[1]《联合国国际货物销售合同公约》（United Nations Convention on Contracts of International Sales of Goods）是由联合国国际贸易法委员会主持制定的，1980年在维也纳举行的外交会议上获得通过。公约于1988年1月1日正式生效。截至2010年8月，核准和参加该公约的共有76个国家，1986年12月11日我国交存核准书，在提交核准书时，提出了两项保留意见：1.不同意扩大《公约》的适用范围，只同意《公约》适用于缔约国的当事人之间签订的合同。2.不同意用书面以外的其他形式订立、修改和终止合同。

[2]国际统一私法协会是一个专门从事私法统一的政府间国际组织，成立于1926年，总部设在意大利的罗马，宗旨是统一和协调不同国家和国际区域之间的私法规则，并促进这些私法规则的逐渐采用。国际统一私法协会有59个会员国，中国于1985年7月23日正式接受该协会章程，并从1986年1月1日起已正式成为其会员国。

[3]联合国贸易法委员会（United Nations Commission on International Trade Law），于1966年由联合国大会设立，中国是其成员国之一。大会在设立贸易法委员会时承认，各国的国际贸易法律存在差异，给贸易流通造成了障碍，因此，大会把贸易法委员会视作联合国可籍此对减少或消除这些障碍发挥更积极作用的工具，赋予贸易法委员会促进国际贸易法逐步协调和统一的总任务。贸易法委员会自此成为联合国系统在国际贸易法领域的核心法律机构。

[4]德国马克。

[5]说明书

[6]特别提款权（special drawing right，SDR，亦称纸黄金）是国际货币基金组织创设的一种储备资产和记账单位，At theclose of the year 2000, one SDR was worth $ 1.29. Under protocol 4, the liability of an airline for damage to cargo is limited to 17 SDRs per kilogram or approximately $ 10.00 per pound of cargo.亦称“纸黄金（Paper Gold）”。它是基金组织分配给会员国的一种使用资金的权利。会员国在发生国际收支逆差时，可用它向基金组织指定的其他会员国换取外汇，以偿付国际收支逆差或偿还基金组织的贷款，还可与黄金、自由兑换货币一样充当国际储备。但由于其只是一种记帐单位，不是真正货币，使用时必须先换成其他货币，不能直接用于贸易或非贸易的支付。因为它是国际货币基金组织原有的普通提款权以外的一种补充，所以称为特别提款权。

[7]海牙规则，全称为《统一提单的若干法律规定的国际公约》（International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading，1924），为统一世界各国关于提单的不同法律规定，并确定承运人与托运人在海上货物运输中的权利和义务而制定，是关于提单法律规定的第一部国际公约。海牙规则规定了承运人最低限度义务，免责事项，索赔和诉讼，责任限制和适用范围以及程序等几个方面。对于承运人免责事项，海牙规则第4条2款列举了11项免责事项。11项免责事项，尤其是航行和管船过失亦免责奠定了海牙规则关于承运人的不完全过失责任制的基础。总体看来，《海牙规则》无论是对承运人义务的规定，还是免责事项，索赔诉讼，责任限制，均体现着承运方的利益，而对货主的保护则相对较少，这也是船货双方力量不均衡的体现。《海牙规则》自1931年生效实施后，得到了国际航运界普遍接受，它的历史作用在于使国际海上货物运输有法可依，统一了海上货物运输中的提单条款，对提单的规范化起到了积极作用，基本上缓和了当时承运方和托运方之间的矛盾，促进了国际贸易和海上运输事业的发展。

[8]联合国海上货物运输公约（United Nations Convention on the Carriage of Goods by Sea，1978），简称汉堡规则。于1978年3月6日至31日在德国汉堡举行由联合国主持的由78国代表参加的海上货物运输大会讨论通过，于1992年11月1日生效。截至2011年年5月，共有成员国34个，其中绝大数为发展中国家。汉堡规则全文共分七章三十四条，除保留了海牙―维斯比规则对海牙规则修改的内容外，对海牙规则进行了根本性的修改，是一个较为完备的国际海上货物运输公约，明显地扩大了承运人的责任。

[9]随着国际政治、经济形势的变化，以及航海、造船技术日新月异的进步，使海上运输方式发生了重大变革，特别是集装箱运输方式的出现和迅猛发展，《海牙规则》的内容已不适应新形势发展的需要。尤其关于承运人的大量免责条款明显偏袒船方利益，通货膨胀的现实使100英镑的赔偿限额明显过低等原因，到了50年代未，要求修改《海牙规则》的呼声日渐强烈。这样，从60年代开始，国际海事委员会着手修改海牙规则，于1968年2月通过了《关于修订统一提单若干法律规定的国际公约的定书》（Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading）。由于该议定书草案在斯德哥尔摩讨论期间，参加会议的成员到过哥特兰岛的维斯比城，为借用中世纪维斯比海法之名声，故将该议定书称为《维斯比规则》（Visby Rules）。经过议定书修订后的《海牙规则》称为《海牙——维斯比规则》（Hague-Visby Rules）或《维斯比规则》。与《海牙规则》相比，《维斯比规则》扩大了公约的适用范围，明确了提单的证据效力，强调了承运人及其受雇人员的责任限制，提高了承运人对货物损害赔偿的限额，增加了“集装箱”条款，延长了诉讼时效。

[10]指在同一海上航程中，当船舶、货物和其它财产遭遇共同危险时，为了共同安全，有意地、合理地采取措施所直接造成的特殊牺牲、支付的特殊费用，由各受益方按比例分摊的法律制度。只有那些确实属于共同海损的损失才由获益各方分摊，因此共同海损的成立应具备一定的条件，即海上危险必须是共同的、真实的；共同海损的措施必须是有意的、合理的、有效的；共同海损的损失必须是特殊的、异常的，并由共损措施直接造成。

[11]美国1936年海上运输法（The Carriage of Goods by Sea Act (1936)）

[12]跟单托收是托收的一种，它是指银行受出口商委托，凭汇票、和发票、提单、保险单等商业单据向进口商收取货款的结算方式，卖方以买方为付款人开立汇票，委托银行代其向买方收取货款。

[13]汇票是由出票人签发的，要求付款人在见票时或在一定期限内，向收款人或持票人无条件支付一定款项的票据。汇票是国际结算中使用最广泛的一种信用工具。

[14]票面金额。

[15]议付，即银行根据信用证付款。

[16]开证行。

[17]即期汇票，即见票即付的汇票。包括载明即期付款、见票即付或提示付款以及未载明付款日的汇票。逾期后再经承兑或背书的汇票，对该种承兑人或背书人而言，应视为即期汇票。即期汇票一般以提示日为到期日，持票人持票到银行或其他委托付款人处，后者见票必须付款的一种汇票，这种汇票的持票人可以随时行使自己的票据权利，在此之前无须提前通知付款人准备履行义务。

[18]远期汇票，是指在出票一定期限后或特定日期付款。

[19]《跟单信用证统一惯例》，现行版本为UCP600。

[20]通知行。是指应开证行的要求，向受益人通知信用证的银行。通知行一般是开证行在出口商所在地的代理行。通知行除应合理审慎地鉴别所通知的信用证及其修改书的表面真实性并及时、准确地将信用证及其修改书通知受益人以外，无须承担其他义务。

[21]在跟单信用证方式下，受益人提供的各项装货单据，必须符合信用证的规定。