recht van de internationale handel

Documentary credits
Purpose: to organise payment against delivery in international sales
Technique (simple case):
- a bank
- acting on instructions of a principal (« applicant », usually buyer)
- undertakes an obligation to pay a beneficiary (usually seller)
- against delivery by the beneficiary of the agreed documents (including a
document representing the goods*)
* concept of negotiable instrument: the right out of the document follows
the right to the document (das Recht aus dem Papier folgt das Recht am
Documentary credits
Order of acts:
Underlying contract (usually sale) determines the payment conditions –
more specifically which l/c the buyer will have to obtain for the benefit of
the seller before the seller ships
Applicant (buyer) contracts with a bank to undertake a « credit » = issue
such a l/c (in favour of the seller)
Issuing bank issues a l/c; this is notified to the beneficiary (seller)
Seller sends / ships the goods
Seller presents the documents to the issuing bank (presentation)
Bank examines the documents (examination, 5 days) and honours (pays) or
Bank reclaims payment from its client (buyer) (recourse) and transfers the
documents to the client (against payment)
Documentary credits
(sales contract)
letter of
issuing bank
Documentary credits
- applicable rules
Conflict of law rule: 3 separate relationships. To each of them is
applied its own lex contractus (chosen law; subsid. characteristic
performance) (NB. Property rights in the goods are determined by
the lex rei sitae)
In the relationship issuer / beneficiary :
- «Uniform customs & practices » (UCP), (privately) codified by ICC.
Since 2007 version 600.
- applicable by virtue of a reference in the contract or l/c; in some
countries accepted as customary law; very succesful - but less in
the USA (application of the UCC).
- UCP do not regulate all issues; national law applies to other issues.
- DCFR has a model law for all independent guarantees (incl.
documentary credits) in Book IV.G Section 3.
Documentary credits
Bank - beneficiary
Legal effects between bank (delegated debtor) and beneficiary
(usually seller) (performance relationship)
Art. 4 UCP (« credits v. contracts ») :
Independent from the relationship bank / applicant (« provision
relationship ») (so-called abstraction)
Independent from the underlying relationship between applicant
(usually buyer) / beneficiary (usually seller) («valuta relationship »,
usually a contract of sale): « even if any reference is included in the
credit »
- « Separate »: determined only by its own modalities (next slide)
Documentary credits
Bank – beneficiary
Legal effects of the l/c between bank and beneficiary (usually seller
In principle irrevocable (art. 7b UCP) (analysed either as a contract
or a binding unilateral promise)
In principle not transferable (infra, art. 38 UCP) (but beneficiary can
transfer the proceeds, art. 39)
Documentary credits
Bank - beneficiary
Legal effects of the l/c between bank and beneficiary (usually seller (cont.):
Duty to pay (or honour otherwise) only:
- upon presentation* of complying documents (complying presentation);
strict interpretation; detailed default rules in the UCP concerning the
requirements for the various types of documents commonly required
(infra); conditions without stipulated documents are disregarded (art. 14 h),
and if presented before the expiry date,
and at the agreed place for presentation (or one of the places for
* For electronic presentation, see the eUCP supplement to the UCP
 Standard for examination: art. 14 UCP.
 Time for examination: according to 14 b, the period for examination is 5
 In case of refusal, duty to notify discrepancies to the presenter (art. 16 c)
Documentary credits
Bank - beneficiary
Independence is exceptionally set aside in case of manifest fraud.
«Manifest» means: proven by present evidence (DCFR IVG-3:105)
Undertaking to «honour» - modes for honouring the credit :
a) immediate payment* (at sight),
b) deferred payment (promise to pay with a term),
c) by acceptance of a draft (bill of exchange) drawn by the beneficiary
Alternative: undertaking to «negotiate», i.e. purchase of a draft (bill of
exchange) drawn on another bank. The issuer will pay in exchange for a
UCP 600, art. 6 c: «a credit must not be issued available by a draft drawn
on the applicant».
Currency used in l/C’s in 2013: 80 % USD, 9 % Chinese Yuan, 7 % Euro.
Effect upon the rights & obligations of the client: client can not attach
(seize) the beneficiary’s right against the bank (case law)
Documentary credits
- documents
Art. 5 « Banks deal with documents, not with goods »
Documents dealt with in detail by the UCP:
Commercial invoice (art. 18)
Transport documents. More specifically:
Bill of lading (cognossement) (art. 20)
Charter party bill of lading (art. 22)
Non-negotiable Waybill (art. 21)
Multimodal transport document (art. 19), ….
General requirement: transport document must be « clean » (art. 27)
Insurance documents (covering the goods) (art. 28)
Not defined in UCP but also frequently used:
Storage certificates (issued by bailee)
Certificates of origin, composition or quality, compliance with norms, etc.
Documentary credits
Bank - applicant
Effects in the internal relationship applicant / bank (delegated debtor):
Contract for (financial) services determines which l/c the bank undertakes
to issue
Bank must notify applicant of the presentation of documents;
has a duty of reasonable care in examining the documents (no stricter
liability) (more detailed rules in art. 14 UCP);
Must notify applicant of performance or refusal
After performance by the bank to the presenter: recourse of the bank
against the applicant (DCFR IVG-3:109: also secured by subrogation;
Belgian law: no subrogation; bank usually not interested in subrogation)
Documents remain in the hands of the bank as security for reimbursement
Documentary credits
Beneficiary - Applicant
Effects in the relationship beneficiary (seller) / applicant (buyer)
Seller does not have to ship before l/c is issued
During the term for presentation: right to payment against the
buyer is suspended (comp. UPICC 6.1.7 (2) and DCFR III-2:108)
After undue payment: buyer must demand reimbursement from the
seller (only)
Dispute settlement mechanism organised by the ICC: « DOCDEX ».
Expert opinion (binding or not) in very short period of time by
anonymous expert
Documentary credits
Complex forms – intervention of more than 1 bank
Bank of (country of) the seller is merely an advising bank (see art. 9 UCP):
gives advice on required formulation of the l/c,
verifies the l/c issued (authenticity, conformity),
transmits the l/c of the issuing bank to the beneficiary;
may be authorised by the issuing bank to examine the documents and to
agent of the issuing bank (no proper undertaking);
demands reimbursement from issuing bank after payment.
Bank of (country of) the seller «confirms» (confirming bank): own
obligation (see art. 8 UCP); beneficiary has a joint and several right against
both banks, but has to address the confirming bank first
Bank of (country of) the seller guarantees the obligation of the issuing
bank: dependent personal security (suretyship), no independent obligation
Nominated bank (art. 12 UCP): merely an agent of the issuing bank
Documentary credits
Particular forms:
Transferable documentary credit: art. 38 UCP
Back-to-back-credit: l/c on application by the seller for the benefit of its
seller; second bank takes the first l/c as credit security.
Effect: second bank in possession of the documents and demands
reimbursement from the first bank on the basis of the first l/c.
Revolving credit (with a ceiling): credit which can be used for several l/c’s.
Each payment by the buyer is credited to the current account of the seller
so that new credit can be drawn in favour of the seller.
Red clause: bank is authorised to pay (or pay in part) in advance (before
presentation) - usually upon presentation of a provisional document (eg a
storage certificate)
Standby letters of credit
Standby l/c:
is rather a kind of independent guarantee (s. further), which can be called
(demand) by presenting agreed documents (in principle proving the right to
payment of the beneficiary).
Standard practices are codified in the « ISP », now ISP 1998
Export financing
Distinction short-term (<2 y) / medium-term (2-5 y) / long-term (5-20 y)
Export insurance: a form of credit insurance
Often offered by government authorities (export guarantee department)
Risks which are usually covered: commercial, political-social, financialmonetary
Premium depends on country risk (risk assessment by country)
No coverage in case of fault of the insured party itself
Export financing
Export financing by public institutions (form of subsidy): OECD has adopted
Guidelines on officially supported export credits – to avoid unfair
competition (now version 2013)
 Scope of application: official support for export outside the EU with a
repayment term of 2 or more years
 Support can be granted only if:
Buyer must pay min. 15 % before delivery (or obtain credit in its own
country) (art. 10 a)
Max. repayment term 5 y. (possibly 8 ½ y) for export to richer countries,
10 y. for poorer countries (12 y. for big projects) (art. 11 - 13)
Rules concerning insurance premium
Minimum interest rates to be respected (art. 14 – 15, 19)
Export financing
Export financing by supplier’s credit or by buyer’s credit (both by bank in
exporting country) when exporting seller is obliged to grant credit to the
 Supplier’s credit (credit to exporter):
- Often discounting bills of exchange drawn on the buyer*: bank pays
supplier against bills of exchange drawn on the buyer (and accepted by the
buyer); supplier remains liable to the bank in case the buyer does not
honour the bill
 Buyers’ credit: credit granted to the foreign buyer by a bank (in the
country) of the supplier
* to be distinguished from credit granted by the buyer’s bank to the buyer
by virtue of which the supplier (or holder) collects the bill of exchange with
the buyer’s bank.
Credit security
Proprietary security
Distinction: giving credit by delivering goods / credit by providing money.
Eg reservation of title is granting credit by delivering unpaid goods but at
the same time retaining title until payment (secured credit); retained rights
of seller will have priority over rights granted by buyer
 Proprietary security exists in many forms, varying from jurisdiction to
sometimes only « fixed » on present assets, sometimes also by anticipation
on future assets, sometimes on floating assets (stocks, receivables, …)
Sometimes only « possessory » security, sometimes also non-possessory,
usually requiring instead registration or some other form of publicity
Rights to enforce also vary
General Model law in DCFR Book IX Proprietary security in movables (s.
Uniform Act on Security rights in the OHADA (incl. personal suretyship,
security rights in movables and in land) (« AUPOS »)
Credit security
Applicable law - different aspects :
Contractual relationship between the parties: lex contractus
Proprietary aspects: lex rei sitae. Conflit mobile possible
In case of insolvency often also application of the lex concursus
Uniformisation ?
Cape Town Convention 2001 (general framework + aircraft protocol (2013:
ratified for EU (w/o Denmark) + 51 other countries); in addition:
Luxemburg railroad protocol 2007; Berlin Space Assets Protocol 2012):
creates an ’international interest’ to be regsitered in the International
EU Collateral Directive: security in financial assets (financial instruments
and account money and bank loans). Directive only for relationships
between financial institutions. Some Member states (as Belgium, UK) also
apply it in other relationships.
Ottawa Convention international leasing, infra.
Cape Town Convention
Proprietary security of the seller
Reservation of title
Seller’s security under Belgian law :
Before delivery: right to suspend performance (effective against third
Termination for non-performance: proprietary effect under Belgian law if
exercised before insolvency (even if debtor in possession at insolvency)
After delivery and transfer of title still has a seller’s lien (privilege) on the
goods (by operation of law)
If stipulated, retention of title; effective in insolvency since 1998
Applicable law: lex rei sitae
Extensions of retention of title (not widely recognised):
Extended into the buyer’s right to payment after resale
Extended into the product manufactured
Broadened to other claims (all moneys clause)
Harmonisation and recognition ? Model rules in DCFR IX
Proprietary security of the seller
Reservation of title
Art. 7 Insolvency Regulation (n°. 1346/2000)
“The opening of insolvency proceedings against the purchaser of an asset
shall not affect the seller’s rights based on a reservation of title where at
the time of the opening of proceedings the asset is situated within the
territory of a Member State other than the State of opening of
“The opening of insolvency proceedings against the seller of an asset, after
delivery of the asset, shall not constitute grounds for rescinding or
terminating the sale and shall not prevent the purchaser from acquiring title
where at the time of the opening of proceedings the asset sold is situated
within the territory of a Member State other than the State of the opening
of proceedings.”
= Transfer (assignment) of rights to payment («receivables») for the
purpose of financing and/or credit security*; factor may provide additional
• Advance payment (with a discount) before maturity = financing
• Payment even if debtor in default = also credit security
 « Master agreement » determines which receivables the factor undertakes
to take over from the assignor and on which conditions (often credit line
with a ceiling), and which costs factor deduces (commission, discount …)
 True factoring = No recourse factoring: factor bears the credit risk, except
in specific cases where he has a right to recourse (against the assignor) :
Assignment in bad faith (buyer already insolvent)
Buyer refuses to pay because of non-performance of seller
Some other risks not covered
 Spurious factoring = recourse factoring: factor has recourse against the
assignor when debtor does not pay. Rather a mandate to collect (pro
solvendo) + additional services.
(valuta) + transfer
of property
(provision) (original
Performance relationship
(substituted creditor)
debitor cessus
International factoring
 Was often a case of refactoring: the export factor assigns to an import
factor (system of « indirect factoring »). When factor present in both
countries (international group) usually direct factoring. In case of indirect
factoring a contract between both factors governs their internal relationship
(who bears which risk)
Applicable law ? Different conflict rules for different aspects !
Factoring agreement: lex contractus
Relationship with the debtor: lex causae
Assignability (incl. effect of no-assignment clauses): lex causae
Proprietary aspects (property rights in the receivable): different solutions
possible (eg. lex causae, country of debtor, law of the factoring contract) now often country of the assignor; but in Recast of the EU insolvency
Regulation : country of ‘COMI’ of the debtor (centre of main interest).
International factoring – uniformisation of the law ?
Ottawa-convention 1988 on international factoring (into force in 7 count. +
Belgium since 1 Oct 2010)
Scope of application: only assignment of receivables (right to payment of
price) arising out of international sales
Despite the name, it deals not with the factoring agreement but with the
Interpretation of the Convention: art. 4 (idem as CISG 7)
One of the critical questions: effect of no-assignment clauses.
Why do buyers stipulate them ?
- can disregard notices of assignment (more certainty for payor)
- maintain future rights of set-off
National law often gives effect to such clauses. Even recent restrictions
leave the 2 mentioned interests of the buyer untouched (eg German HGB)
Ottawa Convention: no-assignment clauses are overruled (art.6). But
reservation in 4 countries (i.a. Belgium)
Ottawa-convention 1988 on international factoring (cont.)
Relationship debtor – assignee:
 The debtor of the assigned right (buyer) retains all other defences arisen
out of the sales contract (provision relationship) (art. 9), incl. any set-off
already available.
 But in principle no right to reimbursement from the factor in case of nonperformance of the seller
(with 2 exceptions in art. 10 (2) where there is a right to reimbursement
against the factor: factor has not yet paid assignor or paid only after
knowing of the non-performance).
 Art. 8 determines under which conditions the debtor is under a duty to pay
the assignee (instead of the seller): if notified by the supplier (or with his
authority) in writing and no older right has been notified earlier.
 Comp. a no recourse factoring for a single transaction
 Supplier assigns its right to payment against the buyer to a forfeiter;
usually by endorsing* bills of exchange drawn upon the buyer for
successive terms of payment (usually every 6 months during 2 to 5 year)
Forfeiter will pay the bills with deduction of the discount + commission
Forfeiter bears the credit risk and waivers its recourse against the drawer
(NB. Under the Geneva Convention on Bills of Exchange such a waiver
cannot be binding upon any other holder of the bill)
* Endorsing = signing on the back (« en dos »)
Finance leasing: 3 party operation:
The (prospective) user negotiates with a supplier the sale of equipment
Leasing contract between the user as lessee and a financer as lessor
Lessor buys upon instruction of the lessee and becomes owner(= security)
Lessee leases for a fixed term. Usually with an option to purchase at the
end of the term (for the residual value)
 Leveraged leasing:
Lessor itself is partly financed by a bank (investment credit granted by bank
to lessor);
lessor assigns the rights to payment against the lessee to the bank (by way
of security assignment);
sometimes additionally a security right in the equipment.
 Sale and leaseback (2 parties): owner sells for cash and then leases back
Risks in international leasing ? Especially recognition of proprietary rights
(lex rei sitae)
Uniform rules ?
 International leasing: also an Unidroit Convention Ottawa 1988
 Unidroit model law 2008
Unidroit Ottawa Convention 1988:
Scope of application: « international » & « leasing » (art. 1)
Proprietary & insolvency aspects
- Recognition of the right of ownership of the lessor (art. 7)
- But states may require filing/registration (7 II)
Unidroit Convention Ottawa 1988
Obligations of the parties:
Lessee may refuse to accept equipment in case of non-conformity (and
terminate contract if not remedied) (art. 12)
But the lessor is not liable in respect of the equipment (art. 8); lessee must
go directly against the supplier (on the basis of the sales contract). Lessee
cannot terminate the sales contract without consent of the lessor, but has
other remedies (art. 10)
Duty of the lessee to take proper care of the equipment (art. 9)
Remedies in case of default (non-payment) of the lessee, including
possibility of termination (art. 13)
Lessor may assign its rights, but remains liable for its obligations (art. 14)
Lessee may transfer its rights only with consent of lessor (art. 14)
Project financing
Very large projects entail specific risks for financer; apart form the credit
risk also exploitation risk, market risk, exchange risk, political risks... Output
of the project is essential.
A particular form is BOT (« build operate transfer »): foreign supplier (or
consortium of suppliers) participates in the capital of the exploitation
company (at least initial years)
 Often financed by a syndicate of suppliers and/of financial institutions
(« syndicated loans » by a syndicate or consortium of banks) became
customary since the 1960’s). Influential standard contracts from the London
LMA (Loan Market Association)
UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects
Equator Principles (World Bank) (version III, June 2013) = credit risk management
framework for determining, assessing and managing environmental and social risk in
project finance transactions (used by financing institutions) > risk categories A, B C
(A= substantial risk)
Project financing
Financers try to limit risks by different structures or techniques, eg:
Security provided by or on behalf of sponsors (states or international
institutions); eg: completion guarantee, cost overrun undertaking,
repayment guarantee, etc.
Long term unconditional commitments from buyers (possiby incl. suppliers
of materials) to purchase the products or services; purchase obligations
possibly guaranteed by security. May include a take-or-pay contract (TOP).
Contract manufacturing (tolling agreement): products manufactured are
property of the supplier / financer who sells them to purchasers (possibly
with a long-term purchase agreement)
Eg. Eurotunnel
Independent guarantees
Independent guarantee: 3 party relationship (type delegatio solvendi)
Underlying contract requires the debtor to obtain a guarantee
On application of that debtor, bank (guarantor) issues a guarantee*:
in the form of a (conditional) promise
to pay a sum of money to a beneficiary
on demand by the beneficiary made in conformity with the terms and
conditions of the guarantee, normally incl. at least a declaration that the
debtor defaults on its obligations (supporting statement)
Independent from the underlying contract (the valuta relationship, such as
sale, construction contract, etc)
Independent from the internal relationship between bank and
applicant/principal (the provision relationship, a financial service contract).
* demand guarantee, performance bond, indemnity, in UK not ’guarantee’ or ‘bank
guarantee’ (as this is a form of dependent suretyship)
Independent guarantees
Independent guarantees
(sales, services or
other contract)
issuing bank
Independent guarantees
Tender guarantee (bid bond)
Performance bond
Advance payment guarantee = repayment guarantee
Maintenance guarantee
Payment guarantee
Retention money guarantee
Independent guarantees
Applicable rules
 Conflict of law rule: chosen law, otherwise place of guarantor ...
UN (UNCITRAL) Convention independent guarantees & standby l/c (not
very successful, in force in 8 countries)
 Standard conditions drafted by the ICC:
Uniform rules for demand guarantees (URDG) (v. 758 replaces v. 458 since
1 July 2010), better coordinated with UCP
applicable if the guarantee refers to them (art. 1 URDG);
default rules (« except so far as the guarantee modifies or excludes
them »);
not yet sufficiently succesful to be considered as customs;
can be used for domestic or international relations
 National law remains applicable by default or where mandatory. Art. 34
URDG contains choice of the country where issued
 International Standby Practices (ISP 1998)
Independent guarantees
Main rules in the URDG (NB. Wording in v.758 aligned with UCP)
Issued on demand of a principal/applicant (or its agent - the instructing
party) (definitions of parties in art. 2)
Binding as soon as it leaves the control of the guarantor (art. 4 a)
Irrevocable (art. 4b)
Guarantee not transferable (unless otherwise agreed) (art. 33) (variations
in national law as to the effect of such a no-assignment clause; most
national restrictions of the prohibition concern only receivables – comp.
discussion under Factoring)
Independent from any other relationship (art. 5); guarantor deals with
documents, not with goods (art. 6); disregarding conditions which are not
documentary (art. 7) with a list of exceptions (esp. externally verifiable
facts or index)
If no expiry date, expires after 3 years (art. 25 c) (in the UN Convention 6
Independent guarantees
Relationship guarantor – beneficiary:
Payment requires presentation of a written « demand » and documents
specified in the guarantee
usually at least a declaration by the beneficiary that the principal is in
breach of obligation, art. 15 URDG – « supporting statement », unless the
guarantee is explicitly merely « on first demand »
guarantee may contain further conditions for demand (if further documents
are required, usually called a standby l/c). Art. 8 URDG (« content of
instructions and guarantees » contains a checklist
Thus the default rule is a guarantee on motivated demand (>< guarantee
on simple demand)
Independent guarantees
Relationship guarantor – beneficiary (cont.)
 Procedure
presentation of the « demand » before expiry date (presentation, art. 14
partial demands and multiple demands are possible (art. 17)
guarantor must inform the applicant/principal (art. 16) and transmit copies
of a complying demand (art. 22)
examination by guarantor with reasonable care (art. 19) whether it appears
to be on its face a complying demand
within 5 working days (art. 20a) (in UN Convention 7 days)
in case of a demand « extend or pay », guarantor may wait 30 days (art.
in case of complying demand: pay (art. 20 b)
in case of refusal to pay: notify beneficiary (art. 24) stating reasons for
refusal (discrepancies) – otherwise guarantor must pay !
payment in the indicated place (art. 20)
Independent guarantees
Effects in the internal relationship between applicant/principal and
Contract between applicant/principal and beneficiary determines which
guarantee the guarantor will issue (useful checklist in art. 8); duty of bank
to inform/advice applicant/principal before that is determined
Duty of guarantor to inform applicant/principal in case of demand (art. 16
and 22 URDG)
Duty of reasonable care in examination of the demand (art. 19 URDG)
No extension of term (« extend or pay ») without consent of the
applicant/principal (art. 23)
After payment: recourse against the applicant/principal (under Belgian law
traditionally no subrogation)
Independent guarantees
Complex guarantees, esp. with counter-guarantee:
- bank of the applicant/principal issues a guarantee in favour of the bank of
the beneficiary (corresponding bank);
corresponding bank issues a guarantee in favour of beneficiary. First
guarantee is a « counter-guarantee ».
guarantee and counter-guarantee are independent from each other (art. 5)
Possibility of an advising bank (on the side of the beneficiary) (art. 10
Independent guarantees
Refusal c.q prohibition to pay (stop-payment order) is possible in the
following situations:
Guarantee conditions not fulfilled
Underlying contract (valuta relationship) manifestly contrary to the
(international) public order
Manifest fraud
Manifest abuse of right.
Fraud is more specifically described in art. 19 Uncitral Convention
- Provisional order possible of « highly probable » on the basis of
« immediately available strong evidence » (art. 20 Uncitral convention)
Comp. Also DCFR IVG-3:105.
Accessory guarantees
E.g. Uniform Rules for Contract Bonds (URCB):
Terms used: surety bond, guarantee (wthout the word ‘demand’).
Often a guarantee by an insurer
Comparable to suretyship (dependant personal security); the obligation is
dependent upon the valuta relationship (between main debtor and
Accessory guarantees