UCP 600: The New Rules on Documentary Credit
[This article appears in the March,2007 issue of Dhaka Law Reports]
The new rules for Uniform Customs and Practice for Documentary Credits will come into force on 1 July 2007. These rules are called the UCP 600. The previous version, UCP 500, had been operative since 1994. Historically, ICC does revision of UCP every 10 years to incorporate changes in international business practice. UCP 500 still contained discrepancies that seemed to hinder the smooth operation of documentary credit transactions. The Banking Commission in Paris in May 2003 established a Drafting group and a Consulting group to formulate UCP 600. After three years of rigorous review, UCP 600 was finalized, hoping to remove the discrepancies in the previous version. Coupled with the ICC’s Documentary Credit Dispute Resolution Expertise Rules (DOCDEX), there was much confusion amongst businesspersons and bankers regarding documentary credit transactions, resulting in 70% of the presentations not being honored due to discrepancies. The objective of UCP 600 is therefore to reduce dispute rates, lower rates of inquiries regarding interpretations of certain articles and reduce lawsuits resulting from such confusion.
Whereas UCP 500 contained 49 Articles, UCP 600 now has 39 Articles that are clearer, more concise and more organized. Major amendments have been enacted in relation to various Articles of UCP 500 that used to induce the most number of inquiries. The major changes are best understood when comparison is made between the two versions, an outline is sketched below:
Application:
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UCP 500 Article 1 |
UCP 600 Article 1 |
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No formal status was given, only stating that they would apply to documentary credit. However, courts would generally find that they would apply when expressly stated or by implication. |
These Articles are now ‘rules’. Once they are referred to in the credit documents, they are binding on all parties, unless excluded or modified by the credit document. Probably this would reinforce the legal status of the provisions. |
Definitions:
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UCP 500 Article 2 |
UCP 600 Article 2 |
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Only the meaning of Credit was defined. |
Article 2 introduces new definitions section. Particularly the meaning of ‘Honor’, ‘Negotiation’ and ‘Presentation’ has been defined among others. This was a prime area of uncertainty in the previous version. |
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No corresponding Article in UCP500 |
UCP 600 Article 3 |
|
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By Article 3 there is now a new section on Interpretations. It clarifies certain procedural matters and interpretation of various commonly used yet misunderstood terms. |
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UCP 500 Article 13(b) and 14 (d) |
UCP 600 Article 14(b) and 16(d) |
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In UCP 500, the stipulated time was ‘reasonable time not exceeding seven days’. This created much confusion. |
Under Article 14 (b) Five Banking days are now the maximum for determining whether a presentation complies. Banks will now have to settle the issue within this period. |
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UCP 500 Article 37(in part) |
UCP 600 Article 14(j) |
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Commercial invoices must appear on their face to be issued by the Beneficiary name din the Credit and must be made out in the name of the Applicant… |
Under Article 14 (j), the address provision for documentary credits has been relaxed. Now it is sufficient if the beneficiary’s addresses in different documents are within the same country. |
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UCP 500 Article 14 (d) |
UCP 600 Article 16(c) |
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If the Issuing Bank and/or Confirming Bank or Nominated Bank decided to refuse the documents, it must give notice to that effect… |
As per Article 16 (c), if a bank decides to refuse documents because of discrepancies, it can hold the documents pending further instructions from the presenter or until it receives a waiver from the applicant and agrees to accept it and give notice to that effect. |
Authorization to Discount
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UCP 500 Article 10(d) |
UCP 600 Article 12(b) |
|
By nominating another bank, or by allowing for negotiation by any bank, or by authorizing or requesting another bank to add its confirmation, the Issuing Bank authorizes such a bank to pay, accept draft(s), or negotiate as the case may be, against documents which appear on their face to be in compliance with the terms and conditions of the Credit and undertakes to reimburse such bank in accordance with the provisions of these Articles. |
As per Article 12 (b), By nominating a bank to accept a draft or incur a deferred payment undertaking, an issuing bank authorizes that nominated bank to prepay or purchase a a draft accepted or a deferred payment undertaking incurred by that nominated bank. |
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UCP 500 Article 21 |
UCP 600 Article 14(d) |
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There must not be inconsistencies between data content of one document with another. |
Article 14 (d) states that data in the credit, other documents and international banking practice need not be identical but also must not conflict with each other. |
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UCP 500 Article 16 (in part) |
UCP 600 Article 35 (in part) |
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Banks assume no liability or responsibility for the consequences arising out of delay and/or loss in transit of any message(s), letter(s) or document(s), or for delay, mutilation or other error(s) arising in the transmission of any telecommunication. |
Article 35 (in part) states that if a presentation is complying then if the documents are lost during transit between banks, the issuing or confirming bank must honour, negotiate or reimburse the credit. Admittedly, this is much more logical than the previous version. |
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UCP 500 Article 26(a) (in part) |
UCP 600 Article 19(a) |
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If the Credit called for a transport document covering at least two different modes of transport, then this section would apply. |
Article 19 (in part) now gives different description of multimodal transport shipments. The credit need not call for a transport document to cover different modes of transport. |
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UCP 500 Article 23(a) (in part) |
UCP 600 Article 20(a) (in part) |
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If a Credit calls for a bill of lading covering a port-to-port shipment, banks will, unless otherwise stipulated in the Credit, accept a document, however named, which… |
Article 20(a) simplifies provision for Bill of Lading which includes port-to-port shipments. |
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UCP 500 Article 20 (b) |
UCP 600 Article 17 |
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Unless otherwise stipulated in the Credit, banks will accept as an original document, a document produced as a copy provided that it is marked as original and appears to be signed. |
Under the new rule in Article 17, a document bearing an apparently original signature, mark stamp or label of the issuer would be accepted as original document. |
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UCP 500 Article 13 |
UCP 600 Article 14 |
|
Referred to ‘reasonable care’ and ‘reasonable time’. There was much uncertainty interpreting these terms. |
The examination of documents and sets out new standards. Needless to say that this area had been a major source of problem, specially between the beneficiary and the confirming/nominating bank. Attempts have been made to reduce the problems usually arising out of wrong interpretation. |
Airway Bill
|
UCP 500 Article 27 |
UCP 600 Article 23 |
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Date of dispatch to taken as the date of shipment. |
If actual date of shipment not specified, date of issuance of the bill will be accepted as the date of shipment. |
Nomination
Article 12 lays down important rules regarding nominating banks obligations and responsibilities covering honour, negotiation, prepayment and deferred payment. They were absent in the previous version, leaving the parties to speculation as to their meaning.
Availability, Expiry date
and place for presentation
As per Article 6, a credit must indicate the bank with which it is available or whether it is available with any bank. It must also indicate whether it is available by sight payment, deferred payment, acceptance or negotiation.
Discrepant Documents
Article 16 now deals with the important issue of discrepant documents and is now much clearer and simplified. Attempts have been taken to reduce the subjective nature of the process. When a bank determines that a presentation does not comply, it may refuse to honor or negotiate.
Insurance Documents
Article 28 deals with insurance documents and detailed provisions relating to insurance is covered.
Transport Documents issued
by Freight Forwarders
Article 30 in UCP 500 dealt with transport documents issued by freight forwarders and is no longer included in the new rules.
There is no doubt that UCP 600 has taken some serious steps to remove confusion and promote consistency in international business practice. The ICC has taken great care to ensure that experience gathered by bankers, importer, exporters and lawyers during the time of UCP 500 are put to good use in the new rules. With over 70% documents presented found to contain discrepancies, it is hoped that UCP 600 would be more successful than its predecessors in bringing in more uniformity in a field that is in dire need of it.
Adnan M L Karim , Barrister-at-Law
Dhaka, Bangladesh
(Republised on besttradesolution.com with permission)
