LC and UCP 600

Introduction

Letter of credit (L/C) can be defined as an “undertaking” whereby the buyer’s bank is committed (on behalf of the buyer) to place an agreed amount of money at the seller’s disposal under some agreed conditions. Since the agreed conditions include, amongst other things, the presentation of some specified documents, the letter of credit is called Documentary Letter of Credit or, in short, Documentary Credit. The Uniform Customs & Practice for Documentary Credit (UCPDC) published by International Chamber of Commerce (2007) Revision; Publication No. 00 defines Documentary Credit: “Credit means any arrangement, however named or described, that is irrevocable and thereby constitutes a definite undertaking of the issuing bank to honor a complying presentation. ” Complying presentation means a presentation that is in accordance with the terms and conditions of the credit, the applicable provisions of these rules and international standard banking practice. According to the definition of “Credit”, when an issuing bank determines that a presentation (of documents) is complying, it must honor.

Honor means, a) to pay at sight, if the credit is available by sight payment, b) to incur a deferred payment undertaking and pay at maturity if the credit is available by deferred payment, c) to accept a bill of exchange (draft) drawn by the beneficiary and pay at maturity if the credit is available by acceptance. Article 15b of UCP-600 says that when a confirming bank determines that a presentation is complying, it must honor or negotiate.

In case of complying presentation, a nominated bank may also honor or negotiate (article 15c). It thus appears that credit is not only available at issuing bank, it (credit) can also be made available at confirming bank or nominated bank (appointed by issuing bank). Moreover, any bank can be a nominated bank in case of a credit available with any bank. (Article 2 and 6a of UPC-600) At this point, it is also imperative to define “Negotiation”.

According to article 2 (UCP- 600)

Negotiation means the purchase by the nominated bank of drafts (drawn on a bank other than the nominated bank) and/or documents under a complying presentation, by advancing or agreeing to advance funds to the beneficiary on or before the banking day on which reimbursement is due to the nominated bank. The above terms such as sight payment, deferred payment, acceptance and negotiation, are infact, reflecting terms of payment of credit. Terms of payment or maturity date of payment (when issuing bank or confirming bank or nominated bank is going to make payment) is therefore, an essential characteristic of a credit.

Article 6b of UCP-600 states, a credit must state whether it is available by sight payment, deferred payment, acceptance or negotiation. It thus follows from the above discussion that a credit: i) is an irrevocable/definite undertaking of an issuing bank to honor a complying presentation ii) must indicate with which it is available; and iii) must indicate the terms of payment

1. 1 Parties to a Letter of Credit

Types of Letter Of Credit

The parties are:

  • The Issuing Bank
  • The Confirming Bank, if any, and
  • The Beneficiary

Other parties which facilitate the Documentary Credit are:

  • The Applicant
  • The Advising Bank The Nominated Bank
  • The Reimbursing Bank
  • The Claiming Bank
  • The Presenter
  • The Transferring

Bank, if any Issuing Bank means the bank that issues a credit at the request of an applicant or on its own behalf. Confirming Bank means the bank that adds its confirmation to a credit upon the issuing bank’s authorization or request. Confirmation means a definite undertaking of the confirming bank, in addition to that of the issuing bank, to honor or negotiate a complying presentation. Beneficiary means the party in whose favor a credit is issued. Applicant means the party on whose request the credit is issued.

Advising Bank means the bank that advises the credit at the request of the issuing bank. However, an advising bank may also utilize the services of another bank (“second advising bank”) to advice the credit and any amendment to the beneficiary. Nominated Bank means the bank with which the credit is available or any bank in the case of a credit available with any bank. Reimbursing Bank means the bank, appointed by the issuing bank, to reimburse the claims (of payment) of the claiming bank. Claiming bank means the nominated bank which claims the payment from the reimbursing bank.

Presenter means a beneficiary, bank or other party that makes a presentation. Transferring Bank means a nominated bank that transfers the credit. In case of credit available with any bank, transferring bank is specifically authorized by issuing bank. An issuing bank may also be a transferring bank.

1. 2 Types of Letter of credit

Article of 3 of UCP-600 says that a credit is irrevocable even if there is not indication to that effect. It therefore, indicates that (under UCP-600) there is only one type of credit, named Irrevocable Letter of Credit.

Other Documentary Credits:

i) Confirmed Documentary Credit: A confirmation of a documentary credit by a bank (confirming bank) upon the authorization or request of the issuing bank constitutes a definite undertaking of the confirming bank, in addition to that of the issuing bank, provided that the stipulated documents are presented to the confirming bank or to any other nominated bank on or before the expiry date and the terms and conditions of the documentary credit are compiled with either to honor or to negotiate.

ii) Revolving Credit: A Revolving Documentary Credit is one by which, under the terms and conditions thereof, the amount is renewed or reinstated without specific amendments to the documentary credit being required. The Revolving Documentary Credit may revolve in relation to time or value. A documentary credit of this nature may be cumulative or non-cumulative.

iii) Transferable Credit and Transferred Credit: Transferable credit means a credit that specifically states it is “transferable”. A transferable credit may be made available in whole or in part to another beneficiary (“second beneficiary”) at the request of the beneficiary (“first beneficiary”). Transferred credit means a credit that has been made available by the transferring bank to a second beneficiary.

iv) Back to Back Credit: The back to back credit is a new credit opened on the basis of an original credit in favor of another beneficiary. Under the back to back concept, the seller as the beneficiary of the first credit offers it as ‘security’ to his bank for the issuance of the second credit.

The beneficiary of the back to back credit may be located inside or outside the original beneficiary’s country.

v) Red Clause Credit: A Red Clause Credit is a credit with a special condition incorporated into it that authorizes the confirming Bank or any other Nominated Bank to make advances to the beneficiary before presentation of the documents. Under the above credit, the issuing bank is liable for the pre-shipment advances made by the nominated bank, in case the beneficiary fails to repay or present the documents for settlement.

vi) Standby Credits : The Standby Credit is a documentary credit or similar arrangement, however named or described, which represents an obligation to the beneficiary on the part of the Issuing Bank to : a) repay money borrowed by the applicant, or advanced to or for the account of the applicant; (b)Make payment on account of any indebtedness undertaken by the applicant; or (c)Make payment on account of any default by the applicant in the performance of an obligation.

1. 3 Operations of Documentary Letter of Credit

The following five major steps are involved in the operation of a documentary letter of credit:

i) Issuing;

ii) Advising;

iii) Confirmation and Amendment (if necessary);

iv) Presentation;

v) Settlement.

i)Issuing a Letter of Credit: Before issuing L/C, the buyer and seller located in different countries, conclude a ‘sales contract’ providing for payment by documentary credit. As per requirement of the seller, the buyer then instructs the bank – the issuing bank – to issue a credit in favor of the seller (beneficiary).

Instruction/Application for issuing a credit should be made by the buyer (importer) in the issuing bank’s standard form. The credit application which contains the full details of the proposed credit, also serves as an agreement between the bank and the buyer. After being convinced about the ‘conditions’ contained in the application form the issuing bank then proceeds for opening the credit to be addressed to the beneficiary.

ii)Advising a Letter of Credit: Advising through a bank is a proof of apparent authenticity of the credit to the seller.

The process of advising a credit consists of forwarding the original credit to the beneficiary to whom it is addressed. Before forwarding, the advising bank has to verify the signature(s) of the officer(s) of the issuing bank and ensure that the terms and conditions of the credit are not in violation of the existing exchange control regulations and other regulations relating to export. In such act of advising, the advising bank does not undertake any liability. However, an advising bank may also utilize the services of another bank (“second advising bank”) to advice the credit and any amendment to the beneficiary.

iii)Confirmation and Amendment of Credit: The beneficiaries are not always willing to rely on the credit standing of the issuing bank – particularly when bank is unknown to the beneficiary. Consequently, a beneficiary may request that the applicant instruct the issuing bank to have its credit confirmed by a confirming bank, usually in the beneficiary’s country. Moreover, parties involved in L/C, particularly the seller and the buyer cannot always satisfy the terms and conditions in full as expected due to some obvious and genuine reasons.

In such a situation, the credit should be amended. However, a credit can neither be amended nor cancelled without the agreement of the issuing bank, the confirming bank (if any) and the beneficiary.

iv)Presentation of Documents The seller being satisfied with the terms and conditions of the credit proceeds to dispatch the required goods to the buyer and after that, has to present the documents evidencing dispatching of goods and fulfilling other terms and conditions of L/C to the issuing or nominated bank on or before the stipulated expiry date of the credit.

After receiving all the documents, the issuing or nominated bank then examines the documents against the credit. If the documents are found complying, the bank will honor or negotiate.

v)Settlement: Settlement means fulfilling the commitment of issuing bank in regard to effecting payment subject to satisfying the credit terms fully. This settlement may be done under three separate arrangements as stipulated in the credit. These are:

  • a) Settlement by Payment: Here the beneficiary / presenter presents the documents to the nominated / issuing bank and the bank then scrutinizes the documents. If satisfied, the nominated / issuing bank makes payment to the beneficiary and in case this bank is other than the issuing bank, then sends the documents to the issuing bank. If the issuing bank is satisfied with the requirements, payment is obtained by the nominated bank from the issuing bank.
  • b) Settlements by Acceptance: Under this arrangement, the beneficiary / presenter submits the documents to the nominated / issuing bank accompanied by a draft drawn on the bank (where credit is available) at the specified tenor. After being satisfied with the documents, the bank accepts the documents and the draft and if it is a bank other than the issuing bank, then sends the documents to the issuing bank stating that it has accepted the draft and at maturity the reimbursement will be obtained in the pre-agreed manner.
  • c) Settlement by Negotiation: This settlement procedure starts with the submission of documents by the beneficiary / presenter to the nominated bank accompanied by a draft drawn on the issuing bank or any other drawee, at sight or at a tenor, as specified in the credit.

After scrutinizing that the documents meet the credit requirements, the bank will purchase the documents and / or drafts, advance or agree to advance funds to the beneficiary on or before reimbursement is due. This bank then sends the documents and the draft to the issuing bank. As usual, reimbursement will be obtained in the pre-agreed manner.

2. 0 Uniform Customs and Practice for Documentary Credits (UCP 600)

What is UCP?

UCP 600 is the latest revision of the Uniform Customs and Practice that govern the operation of letters of credit. UCP 600 comes into effect on 01 July 2007.

The 39 articles of UCP 600 are a comprehensive and practical working aid to bankers, lawyers, importers, and exporters, transport executives, educators, and everyone involved in letter of credit transactions worldwide. This revision of the Uniform Customs and Practice for Documentary Credits (commonly called “UCP”) is the sixth revision of the rules since they were first promulgated in 1933. It is the fruit of more than three years of work by the International Chamber of Commerce’s (ICC) Commission on Banking Technique and Practice.

In May 2003, the International Chamber of Commerce authorized the ICC Commission on Banking Technique and Practice (Banking Commission) to begin a revision of the Uniform Customs and Practice for Documentary Credits, ICC Publication 500. As with other revisions, the general objective was to address developments in the banking, transport and insurance industries. Additionally, there was a need to look at the language and style used in the UCP to remove wording that could lead to inconsistent application and interpretation.

When work on the revision started, a number of global surveys indicated that, because of discrepancies, approximately 70% of documents presented under letters of credit were being rejected on first presentation. This obviously had, and continues to have, a negative effect on the letter of credit being seen as a means of payment and, if unchecked, could have serious implications for maintaining or increasing its market share as a recognized means of settlement in international trade.

The introduction by banks of a discrepancy fee has highlighted the importance of this issue, especially when the underlying discrepancies have been found to be unsound. Whilst the number of cases involving litigation has not grown during the lifetime of UCP 500, the introduction of the ICC’s Documentary Credit Dispute Resolution Expertise Rules (DOCDEX) in October 1997 (subsequently revised in March 2002) has resulted in more than 60 cases being decided. To address these and other concerns, the Banking Commission established a Drafting Group to revise UCP 500.

It was also decided to create a second group, known as the Consulting Group, to review and advice on early drafts submitted by the Drafting Group. The Consulting Group, made up of over 40 individuals from 26 countries, consisted of banking and transport industry experts. Ably co-chaired by John Turnbull, Deputy General Manager, Sumitomo Mitsui Banking Corporation Europe Ltd, London and Carlo Di Ninni, Adviser, Italian Bankers Association, Rome, the Consulting Group provided valuable input to the Drafting Group prior to release of draft texts to ICC national committees.

One of the structural changes to the UCP is the introduction of articles covering definitions (article 2) and interpretations (article 3). In providing definitions of roles played by banks and the meaning of specific terms and events, UCP 600 avoids the necessity of repetitive text to explain their interpretation and application. Similarly, the article covering interpretations aims to take the ambiguity out of vague or unclear language that appears in letters of credit and to provide a definitive elucidation of other characteristics of the UCP or the credit.

During the course of the last three years, ICC national committees were canvassed on a range of issues to determine their preferences on alternative texts submitted by the Drafting Group. The results of this exercise and the considerable input from national committees on individual items in the text is reflected in the content of UCP 600. The Drafting Group considered, not only the current practice relative to the documentary credit, but also tried to envisage the future evolution of that practice.

This revision of the UCP represents the culmination of over three years of extensive analysis, review, debate and compromise amongst the various members of the Drafting Group, the members of the Banking Commission and the respective ICC national committees. Valuable comment has also been received from the ICC Commission on Transport and Logistics, the Commission on Commercial Law and Practice and the Committee on Insurance.

2. 1 UCP 600 – Article 1 Application of UCP

The Uniform Customs and Practice for Documentary Credits, 2007 Revision, ICC Publication no. 00 (“UCP”) are rules that apply to any documentary credit (“credit”) (including, to the extent to which they may be applicable, any standby letter of credit) when the text of the credit expressly indicates that it is subject to these rules. They are binding on all parties thereto unless expressly modified or excluded by the credit.

2. 2 UCP 600 – Article 2

For the purpose of these rules: Advising bank means the bank that advises the credit at the request of the issuing bank. Applicant means the party on whose request the credit is issued.

Banking day means a day on which a bank is regularly open at the place at which an act subject to these rules is to be performed. Beneficiary means the party in whose favour a credit is issued. Complying presentation means a presentation that is in accordance with the terms and conditions of the credit, the applicable provisions of these rules and international standard banking practice. Confirmation means a definite undertaking of the confirming bank, in addition to that of the issuing bank, to honour or negotiate a complying presentation.

Confirming bank means the bank that adds its confirmation to a credit upon the issuing bank’s authorization or request. Credit means any arrangement, however named or described, that is irrevocable and thereby constitutes a definite undertaking of the issuing bank to honour a complying presentation. Honour means: a. to pay at sight if the credit is available by sight payment. b. to incur a deferred payment undertaking and pay at maturity if the credit is available by deferred payment. c. to accept a bill of exchange (“draft”) drawn by the beneficiary and pay at maturity if the credit is available by acceptance.

Issuing bank means the bank that issues a credit at the request of an applicant or on its own behalf. Negotiation means the purchase by the nominated bank of drafts (drawn on a bank other than the nominated bank) and/or documents under a complying presentation, by advancing or agreeing to advance funds to the beneficiary on or before the banking day on which reimbursement is due to the nominated bank. Nominated Bank means the bank with which the credit is available or any bank in the case of a credit available with any bank.

Presentation means either the delivery of documents under a credit to the issuing bank or nominated bank or the documents so delivered. Presenter means a beneficiary, bank or other party that makes a presentation.

2. 3 UCP 600 – Article 3 Interpretations

For the purpose of these rules: Where applicable, words in the singular include the plural and in the plural include the singular. A credit is irrevocable even if there is no indication to that effect. A document may be signed by handwriting, facsimile signature, perforated signature, stamp, symbol or any other mechanical or electronic method of authentication.

A requirement for a document to be legalized, visaed, certified or similar will be satisfied by any signature, mark, stamp or label on the document which appears to satisfy that requirement. Branches of a bank in different countries are considered to be separate banks. Terms such as “first class”, “well known”, “qualified”, “independent”, “official”, “competent” or “local” used to describe the issuer of a document allow any issuer except the beneficiary to issue that document. Unless required to be used in a document, words such as prompt”, “immediately” or “as soon as possible” will be disregarded. The expression “on or about” or similar will be interpreted as a stipulation that an event is to occur during a period of five calendar days before until five calendar days after the specified date, both start and end dates included. The words “to”, “until”, “till”, “from” and “between” when used to determine a period of shipment include the date or dates mentioned, and the words “before” and “after” exclude the date mentioned. The words “from” and “after” when used to determine a maturity date exclude the date mentioned.

The terms “first half” and “second half” of a month shall be construed respectively as the 1st to the 15th and the 16th to the last day of the month, all dates inclusive. The terms “beginning”, “middle” and “end” of a month shall be construed respectively as the 1st to the 10th, the 11th to the 20th and the 21st to the last day of the month, all dates inclusive.

2. 4 UCP 600 – Article 4 Credits v. Contracts

  • a. A credit by its nature is a separate transaction from the sale or other contract on which it may be based. Banks are in no way concerned with or bound by such contract, even if any reference whatsoever to it is included in the credit. Consequently, the undertaking of a bank to honour, to negotiate or to fulfil any other obligation under the credit is not subject to claims or defences by the applicant resulting from its relationships with the issuing bank or the beneficiary. A beneficiary can in no case avail itself of the contractual relationships existing between banks or between the applicant and the issuing bank.
  • b. An issuing bank should discourage any attempt by the applicant to include, as an integral part of the credit, copies of the underlying contract, proforma invoice and the like.

2. 5 UCP 600 – Article 5 Documents v. Goods

Services or Performance Banks deal with documents and not with goods, services or performance to which the documents may relate.

2. 6 UCP 600 – Article 6 Availability, Expiry Date and Place for Presentation

  • a. 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.
  • b. A credit must state whether it is available by sight payment, deferred payment, acceptance or negotiation.
  • c. A credit must not be issued available by a draft drawn on the applicant.
  • d. i. A credit must state an expiry date for presentation. An expiry date stated for honour or negotiation will be deemed to be an expiry date for presentation. ii. The place of the bank with which the credit is available is the place for presentation. The place for presentation under a credit available with any bank is that of any bank. A place for presentation other than that of the issuing bank is in addition to the place of the issuing bank.
  • e. Except as provided in sub-article 29 (a), a presentation by or on behalf of the beneficiary must be made on or before the expiry date.

2. 7 UCP 600 – Article 7 Issuing Bank Undertaking

a. Provided that the stipulated documents are presented to the nominated bank or to the issuing bank and that they constitute a complying presentation, the issuing bank must honour if the credit is available by:

  • i. sight payment, deferred payment or acceptance with the issuing bank;
  • ii. ight payment with a nominated bank and that nominated bank does not pay;
  • iii. deferred payment with a nominated bank and that nominated bank does not incur its deferred payment undertaking or, having incurred its deferred payment undertaking, does not pay at maturity;
  • iv. acceptance with a nominated bank and that nominated bank does not accept a draft drawn on it or, having accepted a draft drawn on it, does not pay at maturity;
  • v. negotiation with a nominated bank and that nominated bank does not negotiate.

b. An issuing bank is irrevocably bound to honour as of the time it issues the credit.

c. 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. Reimbursement for the amount of a complying presentation under a credit available by acceptance or deferred payment is due at maturity, whether or not the nominated bank prepaid or purchased before maturity. An issuing bank’s undertaking to reimburse a nominated bank is independent of the issuing bank’s undertaking to the beneficiary.

2. 8 UCP 600 – Article 8 Confirming Bank Undertaking

  • a.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:

i. honour, if the credit is available by

  • a. sight payment, deferred payment or acceptance with the confirming bank
  • b. sight payment with another nominated bank and that nominated bank does not pay;
  • c. deferred payment with another nominated bank and that nominated bank does not incur its deferred payment undertaking or, having incurred its deferred payment undertaking, does not pay at maturity;
  • d. cceptance with another nominated bank and that nominated bank does not accept a draft drawn on it or, having accepted a draft drawn on it, does not pay at maturity;
  • e. negotiation with another nominated bank and that nominated bank does not negotiate.

ii. negotiate, without recourse, if the credit is available by negotiation with the confirming bank.

  • b. A confirming bank is irrevocably bound to honour or negotiate as of the time it adds its confirmation to the credit.
  • c. A confirming bank undertakes to reimburse another nominated bank that has honoured or negotiated a complying presentation and forwarded the documents to the confirming bank.
  • Reimbursement for the amount of a complying presentation under a credit available by acceptance or deferred payment is due at maturity, whether or not another nominated bank prepaid or purchased before maturity. A confirming bank’s undertaking to reimburse another nominated bank is independent of the confirming bank’s undertaking to the beneficiary.
  • d. If a bank is authorized or requested by the issuing bank to confirm a credit but is not prepared to do so, it must inform the issuing bank without delay and may advise the credit without confirmation.

2. 9 UCP 600 – Article 9 Advising of Credits and Amendments

  • a. 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 and any amendment without any undertaking to honour or negotiate.
  • b. 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.
  • c. An advising bank may utilize the services of another bank (“second advising bank”) to advise the credit and any amendment to the beneficiary. By advising the credit or amendment, the second advising bank signifies that it has satisfied itself as to the apparent authenticity of the advice it has received and that the advice accurately reflects the terms and conditions of the credit or amendment received.
  • d. A bank utilizing the services of an advising bank or second advising bank to advise a credit must use the same bank to advise any amendment thereto.
  • e. If a bank is requested to advise a credit or amendment but elects not to do so, it must so inform, without delay, the bank from which the credit, amendment or advice has been received.
  • f. If a bank is requested to advise a credit or amendment but cannot satisfy itself as to the apparent authenticity of the credit, the amendment or the advice, it must so inform, without delay, the bank from which the instructions appear to have been received. If the advising bank or second advising bank elects nonetheless to advise the credit or amendment, it must inform the beneficiary or second advising bank that it has not been able to satisfy itself as to the apparent authenticity of the credit, the amendment or the advice.

2. 10 UCP 600 – Article 10 Amendments

  • a. Except as otherwise provided by article 38, a credit can neither be amended nor cancelled without the agreement of the issuing bank, the confirming bank, if any, and the beneficiary
  • b. An issuing bank is irrevocably bound by an amendment as of the time it issues the amendment. A confirming bank may extend its confirmation to an amendment and will be irrevocably bound as of the time it advises the amendment. A confirming bank may, however, choose to advise an amendment without extending its confirmation and, if so, it must inform the issuing bank without delay and inform the beneficiary in its advice.
  • c. 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. The beneficiary should give notification of acceptance or rejection of an amendment. 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.
  • d. A bank that advises an amendment should inform the bank from which it received the amendment of any notification of acceptance or rejection.
  • e. Partial acceptance of an amendment is not allowed and will be deemed to be notification of rejection of the amendment.
  • f. 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.