LEGAL NATURE OF THE LETTER OF CREDIT
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1 Table of Contents Preface... Table of Cases... v TC-1 Chapter 1 INTRODUCTION Definitions Foreign Trade Transactions Domestic Use (a) Sources of Law Types of Credit (a) Revocable Credit (b) Revolving Credit (c) Irrevocable Credit (d) Confirmed and Unconfirmed Credits (e) Back-to-Back Credits (f) Transferable Credit (g) Standby Credit (g.1) Counter Standby (h) Negotiation and Straight Credits (i) Notation Credits (j) Simple or Reimbursable Credits (k) Currency Credits (l) Deferred and Acceptance Credits (m) Cable Credits (n) Red Clause Credits (o) Performance Bonds (p) Courtesy Credit (q) Clean Credit (r) Electronic Credit (s) Circular Credits (t) Direct Pay Letters of Credit Chapter 2 LEGAL NATURE OF THE LETTER OF CREDIT Introduction The Problem of Consideration Stipulation pour Autrui Delegation of Payment Sale Insurance vii (Letters of Credit) (2012 Rel. 5)
2 6. Suretyship Agency The Partnership Analogy Theory of Estoppel and Trust Letter of Credit as a Bill of Exchange The Anticipated Acceptance Theory Usage Uniform Customs and Practice Uniform Commercial Code Letters of Credit International Standby Practices (ISP 98) eucp (Version 1.1) Chapter 3 PARTIES TO THE LETTER OF CREDIT Issuing Bank and the Applicant (a) Capacity of the Bank (b) Agreement for Issuance (b.1) Side Agreements (c) Strict Compliance (i) Discrepancies in Purpose (ii) Discrepancies in Description of Goods (iii) Discrepancies as to Documents (iv) Discrepancy in Destination (iv.1) Discrepancy as to Delivery (v) Forgery (vi) Notification of Discrepancies (vii) Timeliness (d) Duty to Inform (e) Trust Receipts (f) Extraneous Duties (g) Power of Attorney Issuing Bank and the Beneficiary (a) Notional Beneficiary Intermediary Banks (a) Confirming Bank (b) Advising and Negotiating Banks Holders and Holders in Due Course (a) Holders Generally (b) Holders in Due Course Other Parties Identity of Parties Chart Summaries Chapter 4 DOCUMENTARY REQUIREMENTS Documentary Requirements Generally viii
3 Chapter 5 Chapter 6 Chapter 7 2. Invoices Certificates Drafts Bills of Lading Transport Documents Generally Insurance Electronic Letters of Credit Corrections and Alterations AUTONOMY OF THE CREDIT TRANSACTION Introduction Effect Exceptions to the Rule of Autonomy (a) Consent of the Parties (b) Public Policy (b.1) Sanctions Clauses (c) Fraud (i) Fraud by the Parties (ii) Fraud by Third Parties (iii) Fraud in Standby Credits (iv) Fraud and Security Credits (v) Fraud and Confirming Banks (vi) Fraud against the Issuer (vii) Scams Letters of Credit and Bankruptcy PAYMENT THROUGH LETTERS OF CREDIT Introduction Absolute and Conditional Payment Currency Problems Limitations Period or Prescription (a) Action for Payment or Reimbursement by Beneficiary Against the Payer (b) Other Periods Set-Off Return of the Credit DURATION, AMENDMENT AND TRANSFER Duration of the Letter of Credit Amendments to Letters of Credit Transfer of Credits Trust Chapter 8 JUDICIAL REMEDIES ix (Letters of Credit) (2013 Rel. 1)
4 1. Introduction Payment and Damages Recovery under Mistake of Fact or Unjust Enrichment Injunction Seizure Before Judgment or Freezing Orders Unconscionable Transactions Declaratory Judgment Stay of Proceedings Sovereign Immunity Tender or Court Deposit Evidentiary Matters Reimbursement Dispute Resolution Recovery of Credit Chapter 9 CONFLICT OF LAWS Conflict of Laws Forum Selection Choice of Law Conclusions Chapter 10 BANKERS ACCEPTANCES Types of Acceptances Uses of a Bankers Acceptance The Mechanics Specific Acceptance Credit Agreement The Bankers Acceptance Market (a) Market Activity (b) Roly-Poly (c) Bankers Acceptances and Loan Participation Costs and Discounts Drawer not a Borrower Trade Acceptances Legislation Affecting Bankers Acceptances (a) Canadian Legislation (i) Bills of Exchange (ii) Time (iii) Qualifications (iv) General (v) Bill of Exchange (vi) Incomplete Bills (vii) Delivery (viii) Capacity and Authority of Parties x
5 (ix) Consideration (x) Presentment for Acceptance (xi) Presentment for Payment (xii) Liability of the Acceptor (xiii) Promissory Note (b) Canadian Banking Legislation (c) United States Legislation (i) Bill of Exchange (ii) Acceptor s Liability (iii) Acceptance in Writing (iv) Payment is not Acceptance (v) Implied Acceptance (vi) Qualification of Acceptance (vii) Certification (d) United States Federal Reserve Bankers Acceptances and Other Instruments (a) Commercial Paper and Bankers Acceptances (b) Letter of Comfort and Bankers Acceptances (c) Guarantee and Bankers Acceptances (d) Letters of Credit and Bankers Acceptances (e) Loans and Bankers Acceptances Conclusion Chapter 11 CONCLUSIONS APPENDICES... App-1 1. Application for Documentary Letter of Credit... App-1 2. Master Agreement for Issuance of Letters of Credit... App-3 3. Irrevocable Documentary Credit... App-7 3A. Irrevocable Standby Letter of Credit... App-9 3A.1. Basic Standby Credit Undertaking ISP98...App A.1.1 Short Form Standby Letter of Credit...App A.2. Standard Standby Credit (ISP98)...App a 3A.3. Standard Standby Credit (ISP98) With Extension Clause...App A.4. Standard Standby Credit (ISP98) With Extension Clause and Reduction Feature...App A.5. Demand For Reduction of the Amount of Standby Credit (ISP98)...App xi (Letters of Credit) (2013 Rel. 1)
6 3A.6. Transferable Standby Credit (ISP98) With Extension Clause, Reduction Feature...App A.7. Counter Standby Credit (ISP98)...App A.8. Standard Standby Credit (ISP98) Confirmation Required...App A.9. Confirmation of Standby Credit (ISP98)...App B. Draft Form of Irrevocable Letter of Credit... App C. Required Form of Letter of Credit to be Used as Performance Bond Under Chicago Mercantile Exchange Inc. Rule App C.01. CME Approved Letter of Credit Banks... App-10.4(1) 3C.1. Land Rehabilitation Performance Bond... App-10.4(3) 3D. Irrevocable Standby Letter of Credit for Lease Permits... App E. Irrevocable Standby Letter of Credit for Landfills... App F. Irrevocable Transferable Standby Letter of Credit... App G. Irrevocable Standby Letter of Credit for Compensation and Monitoring... App H. Irrevocable Letter of Credit for Procurement of Government Services... App I. Standby Letter of Credit to be Given by a Foreign Bank in Support of Credit Facilities Established for a Local Borrower... App Sight Draft... App Confirmed Advice of Credit... App Bank Draft... App Notification of Irrevocable Credit... App Amendment to Documentary Credit... App-16 8A. Letter of Transfer...App Certificate of Inspection... App A. Certificate of Inspection [Alternate]... App Commercial Invoice... App Bill of Lading... App Uniform Commercial Code Article 5 Letters of Credit... App Sztejn v. J. Henry Schroder Banking Corporation et al.... App Bank of Nova Scotia v. Angelica-Whitewear Ltd. and Angelica Corporation... App Letter of Guarantee... App The Uniform Customs and Practice for Documentary Credits Table of Concordance... xii App-62
7 16A. The Uniform Customs and Practice for Documentary Credits 1993 and 2007 Table of Concordance... App Uniform Customs and Practice for Documentary Credits: 1983 Revision... App-64 17A. Uniform Customs and Practice for Documentary Credits: 1993 Revision... App B. Adherence List to the Uniform Customs... App B.1. National Committees of the ICC...App C. ICC Uniform Customs and Practice for Documentary Credits: 2007 Revision (UCP 600)... App D. ISBP International Standard Banking Practice E. Supplement to the Uniform Customs and Practice for Documentary Credits for Electronic Presentation (Version 1.1)(the eucp )... App F. ICC Rules of Arbitration (2012)... App Uniform Customs and Practice for Documentary Credits: 1974 Revision... App Uniform Customs and Practice for Documentary Credits: 1962 Revision... App-96 19A. United Nations Convention on the Use of Electronic Communications in International Contracts... App B. United Nations Convention on Independent Guarantees and Standby Letters of Credit...App C. The Hague-Visby Rules The Hague Rules as Amended by the Brussels Protocol 1968 (extracts)...app General Security Agreement Relating to Goods... App Bill of Exchange (Draft) Form... App Bill of Exchange (Draft) Complete... App Bill of Exchange (Draft) Accepted... App Bill of Exchange (Draft) Accepted for Specific Purpose... App Bills of Exchange Forms (Bill of Exchange Act, Canada) (Schedule of Forms)... App Bank Credit Agreement... App Short Form Acceptance Credit Agreement... App Agreement for Bankers Acceptances Date (Alternate Form)... App A. Credit Facility Agreement... App-152 xiii (Letters of Credit) (2013 Rel. 1)
8 29. Agreement Respecting Separate Acceptance Facility... App Partial Checklist... App Checklist for Drafts... App Checklist for Insurance Documents... App Checklist for Transport Documents... App Application for Confirmation of Letter of Credit by Export Bank... App Letter of Credit (2010) EPA Allowance Auctions... App Revolver Letter Of Credit Facility... App A. Code of Federal Regulations, Title 12 Banks and Banking, Chapter II Federal Reserve System... App B. Code of Federal Regulations, Title 12 Banks and Banking, Chapter III Federal Deposit Insurance Corporation... APP C. Code of Federal Regulations, Title 12 Banks and Banking, Chapter VI Farm Credit Administration... APP D. Code of Federal Regulations, Title 12 Banks and Banking, Chapter XII Federal Housing Finance Agency... APP D.1 Utah Administrtive Code Rule R , Letters of Credit...App E. Contracting Policy of the Canadian Government... App Trust Receipt... App Packing List... App Sales Confirmation Pro-Forma Invoice... App United City Merchants (Investments) Ltd. v. Royal Bank of Canada (The American Accord)... App Federal Deposit insurance Corporation Risk Management Manual of Examination Policies... App Table of Swift Messages... App A. SWIFT MT 700 Format Specifications... App Documentary Credit... App Clean Letter of Credit... App Standby Credit... App Assignment of Letter of Credit In Its Entirety... App Partial Assignment of Letter of Credit... App Assignment of Proceeds of Letter of Credit... App-238 xiv
9 45. Confirmed Advice of Credit.... App Advice of Transfer of Letter of Credit... App Advice of Partial Transfer of Letter of Credit... App Letter of Credit Guarantee... App Agreement for Documentary Letter of Credit... App Agreement for Standby Letter of Credit... App Irrevocable Documentary Letter of Credit... App Irrevocable Standby Letter of Credit... App-260 Index... I-1 xv (Letters of Credit) (2013 Rel. 1)
Amendment to a Documentary Credit Advice of a Third Banks Documentary Credit. Transfer of a Documentary Credit Transfer of a Documentary Credit
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