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ICC issue guidance paper relating to the use of drafts (bills of exchange)

05/04/2019

It has long been debated as to whether drafts serve a useful purpose in a letter of credit. Under UCP 600, the only type of availability where a draft is absolutely necessary is where a credit is available by acceptance. UCP 500 maintained a difference between acceptance and deferred payment credits i.e., accepted drafts could be financed under the applicable bill of exchange law but a bank's obligation when issuing its deferred payment undertaking was only to pay at maturity - there was no perspective of a bank prepaying its undertaking as now mentioned in UCP 600 sub-article 12 (b). UCP 600, through the content of sub-article 12 (b), has placed the acceptance and deferred payment credits on the same level and banks should consider issuing credits available by the latter.

The paper questions whether drafts should be called for and recognises that it is an issuing bank that will call for a draft and not the applicant. Therefore, whether a draft is needed or not is in control of the issuing bank.

The paper is a guidance document and it is left to each bank to decide how to proceed in the future.

A copy of the paper can be viewed here ICC Guidance Paper - Drafts.pdf

 

 

 


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Our client will open a letter of credit for the import of goods (spare parts). Payment terms will be 90 days after bill of lading date provided that our customer will check the goods whether they are in good order and condition prior to proceeding with the payment, either for the full amount/part of the amount/or not to proceed with payment at all if the goods are not found to be in good order and condition. Please let us have your opinion on the below 2 questions, and on the wording of the clauses which will be added under Additional Conditions of the L/C in order to secure our customer concerning the payment of the L/C: Question 1: The confirming letter which will be presented by the applicant to us (Issuing Bank), whether it should be requested under the DOCUMENTS REQUIRED Field 46A of the credit OR whether it should be considered as a special term that concerns only the payment and should be requested under Additional Conditions of the credit as follows: PAYMENT WILL ONLY BE EFFECTED AT MATURITY (90 DAYS AFTER BILL OF LADING DATE) SUBJECT TO FULFILMENT OF POINTS 1 AND 2 BELOW: 1. UPON PRESENTATION OF COMPLIANT DOCUMENTS AT OUR COUNTERS AND DELIVERY TO APPLICANTS TO CLEAR GOODS FROM CUSTOMS; 2. UPON PRESENTATION BY ΤΗΕ APPLICANT (DIRECTLY TO THE ISSUING BANK) OF A WRITTEN LETTER CONFIRMING, EITHER: (A) THAT THE GOODS RECEIVED ARE IN GOOD ORDER AND CONDITION AND THE ISSUING BANK SHALL PROCEED WITH PAYMENT OF THE FULL INVOICE VALUE AS PRESENTED OR (B) THAT ONLY PART OF THE GOODS RECEIVED ARE IN GOOD ORDER AND CONDITION AND CLEARLY STATING THE AMOUNT TO BE PAID UNDER THE LETTER OF CREDIT, IN FULL SETTLEMENT OF THE LETTER OF CREDIT (WITHOUT FURTHER BENEFICIARY'S CONSENT) AND IRRESPECTIVE OF THE INITIAL VALUE OF THE INVOICE PRESENTED. THE PAYMENT SHALL BE CONSIDERED CONCLUSIVE ON BOTH PARTIES (APPLICANT AND BENEFICIARY) AND ISSUING AND NOMINATED BANK OR (C) GOODS RECEIVED ARE NOT IN GOOD ORDER AND CONDITION AND CLEARLY STATING THAT APPLICANT REJECTS PAYMENT OF ANY AMOUNT UNDER THE LETTER OF CREDIT, WITHOUT THE NEED OF BENEFICIARY'S CONSENT AND IRRESPECTIVE OF THE INITIAL VALUE OF THE INVOICE PRESENTED. THE DOCUMENTS SHALL BE CONSIDERED CONCLUSIVE ON BOTH PARTIES (APPLICANT AND BENEFICIARY) AND ISSUING AND NOMINATED BANK. THE WRITTEN LETTER MAY BE PRESENTED AFTER THE EXPIRY DATE OF THE LETTER OF CREDIT BUT NOT LATER THAN 85 DAYS FROM BILL OF LADING DATE. Question 2: Please clarify whether the above document should be presented within the validity of the L/C (i.e., Shipment date + Presentation Period) or whether it can be presented after the expiry of the L/C (e.g., 85 days after the bill of lading date).