What does the disposition of "HOLDING THE DOCUMENT AT THE DISPOSAL OF OF THE PRESENTER" MEAN:
TO ME ITS MEAN THAT THE DOCUMENTS IS HELD AT THE COUNTER OF THE ISSUING BANK FOR DISPOSAL OF THE PRESENTER.......... HENCE THE OWNERSHIP OF THE DOCUMENT LIES WITH THE PRESENTER..... SO YOUR PREMISE:
the issuing bank is not intending to seek further instructions from the presenter (as required under 16 c (iii) a))
SEEM TO ME WRONG... FOR INFORMATION I HEREBY REFER ICC OFFICIAL OPINION R-540: I.E.
the position has clearly been stated along the lines that if an issuing bank states: "Documents held at your risk and disposal", it should not release such documents until it has the approval of the presenters to the settlement
ON THE CONTRARY, AFTER GIVING THIS DISPOSITION, MAKING ANOTHER DISPOSITION THAT :
HOWEVER, IN THE CASE THE APPLICANT ACCEPTS YOUR DISCPREPANT DOCUMENTS, WE WILL RELEASE THEM WITHOUT FURTHER REFER TO YOU UNLESS WE RECEIVE YOUR CONTRARY INSTRUCTIONS BEFOREHAND.”.
IS CONTRADICTING WITH THE FORMER DISPOSITION.
THE ISSUING HAS NO RIGHT TO RELEASE THE DOCUMENT AFTER DECLARING THE DISPOSITION
""HOLDING THE DOCUMENT AT THE DISPOSAL OF OF THE PRESENTER"
YOUR COMMENT APPRECIATED....
ICC opinion points towards the requirement to provide a refusal notice in line with one of the four options available under sub-article 16 c iii, and that these should not be combined. However, in my view I do not see the notice given in the query as a combined notice, mutually exclusive of each other. Rather, the first statement regarding the holding of documents at the “disposal of the presenter” complements and reinforces this silent but nevertheless implied obligation under sub-article 16 c (iii) (b)
. The only distinction being, that the option as under sub-article 16 c (iii) (a)
is available where waiver has not been sought, and the option as under sub-article 16 c (iii) (b)
is available where waiver has already been sought.
The beneficiary’s right to control the disposal of documents remains paramount at all times , and this is not compromised by the provision of sub-article 16 c (iii) (b)
. Instead, what this sub-article seeks to articulate is the negation of the beneficiary’s right to refuse the release of documents after the issuing bank agrees to accept a waiver. Up to this point it is understood, the beneficiary is free to provide whatever disposal instruction he so pleases.
The point which I was making in my previous post, is that by stating “We are holding documents at our counters at your risk and disposal” (but note, excluding reference to seeking further instructions), and simultaneously stating that the documents will be released to the applicant against waiver, unless the banks receives the presenter’s prior disposal instructions, does not give rise to a preclusion situation as under sub-article 16 (f). It should be viewed as a single notice being provided under sub-article 16 c (iii) (b)
, and not as a combined notice being provided under sub-article 16 c (iii) (a)
and 16 c (iii) (b)
together. There is no contradiction here. The first statement indicating that the documents are being held at the presenter’s disposal is explicit, whereas in the second statement (as is the case in the whole of sub-article 16 c) there is an implication that the documents remain held at presenter’s disposal until receipt and acceptance acceptance of waiver.
I am not familiar with Opinion R540, (presumably this was given under UCP500?) but from the extract provided, I see no conflict with my view. The opinion appears to indicate that if a bank states it is holding documents at the disposal of the presenter (as would be the case if given under sub-article 16 c (iii) (a)
) , it should continue to do so, unless and until the presenter provides disposal instructions. This should be contrasted with the situation under sub-article 16 c (iii) (b)
(which the opinion could not address) where waiver has been sought and the documents remain at presenter’s disposal until
the waiver is accepted.
There has in fact been a 1987 court case relating to an LC subject to UCP400 ( Co-operative Centrale v Sumitomo Bank Ltd, The Royan) under which the refusal notice was issued as : “Please consider these documents at your disposal until we receive our principal’s instructions concerning the discrepancies mentioned in your schedules
”. This was reviewed in light of the then article 16 of UCP400, and the Court of Appeal held that there was no doubt that the documents were being held at the disposal of the presenters. You will note that the notice of refusal in the query is broadly similar to the above, and there seems no reason to doubt that a similar notice as in the court case, if issued under an LC subject to UCP 600, would comply under sub-article 16 c (iii) (b)