Introduction to the Mechanics of Trade Finance 15 October 2014 Jolyon Ellwood-Russell Partner, Hong Kong
Introduction What is Trade Finance Documentary Credits Standby Letters of Credit Threats to Unconditional Payment Undertakings Structured Trade and Commodity Financing ( STCF ) structures STCF security solutions Fraud v KYC 1 / B_LIVE_APAC1:450818v1
What is Trade Finance Trade Services v Trade Finance Understanding the trade cycle The risk ladder Method of payment depends on: Bargaining position Countries involved Reconciling conflicting economic objectives of a trade buyer and sell through use of documents and involvement of banks 2 / B_LIVE_APAC1:450818v1
Documentary Credits Types of Letters of Credit UCP 600 set of internationally accepted rules and definitions covering the liabilities and duties of all parties to a letter of credit Two underlying principles 1) Autonomy of the credit 2) Strict compliance Exceptions: Fraud Illegality (exchange controls) 3 / B_LIVE_APAC1:450818v1
Opening a Letter of Credit COUNTRY A 1 COUNTRY B Seller (the beneficiary) Contract of Sale stipulating payment by letter of credit Buyer (the applicant) 4 Informs the seller when the letter of credit has been issued and which documents should ne presented to obtain settlement Buyer instructs his bank to issue a letter of credit in favour of the seller 2 Advising/ Nominated bank Issuing bank arranges with a bank in the seller s country to advise the seller when the letter of credit has been opened and to pay against delivery of specified shipping documents. If the nominated bank confirms the credit it will be know as the confirming bank. Issuing bank 3 4 / B_LIVE_APAC1:450818v1
Operating a Letter of Credit 8 COUNTRY A Seller (the beneficiary) 1 Shipment of goods Port By virtue of its possession of the documents the buyer can claim the goods COUNTRY B BUYER (the applicant) 3 The nominated bank checks the documents against requirements of the letter of credit and, if they are in order, is authorised (if merely a nominated bank) or obliged (if also a confirming bank to pay the seller) Documents evidencing shipment 2 Advising Nominated bank 4 Nominated bank sends the documents to the issuing bank After checking and being satisfied that the documents meet the requirements of the letter credit the issuing bank reimburses the nominated bank 5 6 The issuing bank delivers the documents to the buyer Issuing bank 7 The issuing bank is reimbursed by the buyer 5 / B_LIVE_APAC1:450818v1
Standby Letters of Credit (SBLC) Different types of Bank Guarantees SBLC form of Documentary Credit Regulation ISP 98 URDG 758 UCP 600 Pays on presentation by beneficiary of a demand Payment effected in the event of an underlying default 6 / B_LIVE_APAC1:450818v1
Threats to Unconditional Payment Undertakings Current problems Regulation Basel III Should an issuing bank protect itself from paying Fraud Sanctions Qingdao and choice of law 7 / B_LIVE_APAC1:450818v1
STCF Structured Trade and Commodity Finance Variety of structures Security available 8 / B_LIVE_APAC1:450818v1
STCF - Structures Pre-export financing ONSHORE 1 OFFSHORE LENDER 4 $ EXPORTER (Borrower) $ $ COLLECTION ACCOUNT $ 3 2 BUYER 9 / B_LIVE_APAC1:450818v1
STCF - Structures Prepayment ONSHORE OFFSHORE LENDER 1 6 5 SELLER (PRC) 2 3 BORROWER 4 10 / B_LIVE_APAC1:450818v1
STCF - Structures Warehouse financing ONSHORE OFFSHORE US$ BORROWER BANK A/C US$ LENDER LETTER OF CREDIT D. ESCROW ARRANGEMENT C. PLEDGE OVER RECEIVABLES 1 US$ FACILITY AGREEMENT BUYER 3 COMMODITY SPA2 BORROWER 2 CASH ADVANCE COMMODITY SPA1 SUPPLIER WAREHOUSE COMMODITY COMMODITY B. PLEDGE OVER GOODS A. PLEDGE OVER GOODS/BILLS OF LADING 11 / B_LIVE_APAC1:450818v1
STCF - Structures Repurchase (Repo) ONSHORE OFFSHORE BUYER (SELLER) 1. COMMODITY SALE AND PURCHASE US$ LENDER (BUYER) 2. CONDITIONAL OFFTAKE AGREEMENT OFFTAKER 12 / B_LIVE_APAC1:450818v1
STCF Security solutions Trade flow example Purchase contract Borrower Assignment of Receivables Security over Collection Account Offtaker Field Warehouse Port warehouse Ship Pledge Warrant receipts Trust receipts B/L to order Pledge Assignment Other credit support 13 / B_LIVE_APAC1:450818v1
Fraud v KYC Fraud and control Monitoring and notifications Trade cycle and KYC C Reputation v Payment Undertaking 14 / B_LIVE_APAC1:450818v1
Conclusion Trade Finance exists to identify, mitigate and transfer risk Security and structure Understanding and monitoring 15 / B_LIVE_APAC1:450818v1
simmons-simmons.com elexica.com Disclaimer This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document. Simmons & Simmons is registered in China as a foreign law firm. We are permitted by Chinese regulations to provide information on the impact of the Chinese legal environment and also to provide a range of other services. We are not admitted to practise in China and cannot, and do not purport to, provide Chinese legal services. We are, however, able to co-ordinate with local counsel to issue a formal legal opinion should this be required. 16 / B_LIVE_APAC1:450818v1
Our Contacts Jolyon Ellwood-Russell Partner T +852 2583 8298 E jolyon.ellwood-russell@simmons-simmons.com Jolyon is a finance lawyer with a wide variety of experience in banking and finance transactions and in particular is a specialist in Structured Trade and Commodity Finance. He works on products such as trade receivables, trade finance, asset based and borrowing base facilities across Asia covering a diverse portfollio of underlying soft and hard commodities. Jolyon is qualified in England & Wales and Hong Kong and is author of (i) the Banking Volume of the Hong Kong Encyclopedia of Forms and Precedents and (ii) a Glossary of Trade Finance Terms. 17 / B_LIVE_APAC1:450818v1