scholarly journals THE TWO IMPORTANT DOCTRINES UNDERLYING DOCUMENTARY LETTERS OF CREDIT AND THE FRAUD EXCEPTION

2008 ◽  
Author(s):  
Tenielle Appanna
Keyword(s):  
International Trade ◽  
Letter Of Credit ◽  
Fraud Exception ◽  
Letters Of Credit

Documentary letters of credit are important tools in relation to international trade. The parties who make use of these instruments usually come from different countries and usually have different views on trade and customs. The parties generally do not know each other personally and have opposite interests in relation to the contract of sale. There is a sense of distrust towards each other, as both parties have serious concerns as to the other’s performance in terms of the contract. While the purchaser has a fear of receiving goods of an incorrect quantity or quality, or not receiving goods at all, the seller fears non-payment, or that the buyer refuses to accept the goods on a mere technicality. Coupled with the abovementioned is the fact that legal recourse will be expensive and may be complex taking jurisdiction into consideration. A documentary letter of credit eases some of these fears due to the unique doctrines which form the foundation of this instrument, and these will be discussed at length. The most frequently encountered exception to documentary letters of credit not being fulfilled is that of fraud, which will also be discussed at length.

scholarly journals Autonomy Principle and Fraud Exception in Documentary Letters of Credit, a Comparative Study between United States and England

2015 ◽  
Vol 15 (2) ◽  
pp. 47-68 ◽  
Author(s):  
Hamed Alavi
Keyword(s):  
International Trade ◽  
Common Law ◽  
Legal Aspects ◽  
International Operation ◽  
Legal Personality ◽  
Letter Of Credit ◽  
Law System ◽  
American Law ◽  
Standards Of Proof ◽  
Letters Of Credit

Abstract Despite the fact that Documentary Letters of Credit are involved in process of International Trade for many centuries, but their legal personality is very new and their life span is much shorter than their existence. In the middle of Eightieth Century, Lord Mansfield introduced legal aspects of LC operation for the first time to the Common Law System. Later, International Chamber of Commerce started to codified regulations regarding international operation of Documentary Letters of Credit in 1933 under the title of Uniform Customs and Practices for Documentary Letters of Credit and updated them constantly up to current date. However, many aspects of LC operation including fraud are not codified under the UCP which subjects them to national laws. Diversified nature of National Laws in different countries can be source of confusion and problem for many businessmen active in international operation of Documentary Letters of Credit. Such differences are more problematic in Common Law countries as a result of following precedent. For Example, legal aspects of International LC transactions under British Law are only based on case law, however, American Law addresses Letter of Credit Operation under Article 5 of Unified Commercial Code. Due to important role of English and American law in practice of international trade, current paper will try to compare their approach to autonomy principle of in LC operation, fraud rule as a recognized exception to it and search for answer to following questions what is definition of fraud, and what are standards of proof for fraud in LC operation, under English and American law?

Fraud in the documents and the underlying contract in letters of credit under Jordanian and English law: a new prerequisite?

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Kamal Jamal Alawamleh ◽  
Shadi Helo Abu Helo
Keyword(s):  
Design Methodology ◽  
Secondary Data ◽  
Specific Area ◽  
Main Method ◽  
Content Type ◽  
Letter Of Credit ◽  
Important Principle ◽  
English Law ◽  
Fraud Exception ◽  
Letters Of Credit

Purpose This study aims to examine the application of the fraud exception to the autonomy principle that governs the work of letters of credit in both Jordanian and English law. While it has been reiterated that the application of such exception before the English courts is difficult, this study highlights and critically analyzes some of the reasons that lie behind such a difficulty. Moreover, this study compares the English approach with the Jordanian approach to this specific area of law to find out what each can benefit from the approach of the other. The extent to which both approaches have been successful in applying such an exception will be examined thoroughly in this paper. Design/methodology/approach To examine how effective is the approaches followed by the English and Jordanian Courts in applying the fraud exception in this context, this work makes use of the secondary data available in this regard as the main method to complete such an examination. By critically analyzing and comparing the various data contained in these sources, this work identifies the problems associated with such approaches. Findings This work suggests that while the autonomy principle in letters of credit has what shall maintain its role as an important principle, the fraud exception application shall be facilitated. It further submits that the English Courts attitude to this specific area of law is somehow ambiguous and intertwined as it does not distinguish between two different stages that are existent in this context, namely, the submission of the documents stage “the prerequisite” that in case of submitting genuine, truthful and complying documents would activate the autonomy principle and the following stage which starts after activating the autonomy principle and which to it a fraud exception can be applied. Originality/value This work proposes that a beneficiary of a letter of credit shall satisfy a prerequisite before it can be said that he is protected under the autonomy principle. Such a prerequisite dictates that he shall submit genuine, truthful and complying documents to activate the autonomy principle and once the beneficiary submits such documents it can be said that the autonomy principle, which fraud is an exception to it, has been activated. Furthermore, this work proposes that English Courts shall adopt an approach similar to the Jordanian approach in relation to the application of the fraud exception, whereas the latter requires proving neither the beneficiary’s fraudulent intent nor his knowledge of it but rather applies a more realistic test concerned merely with the goods’ quality and quantity.

scholarly journals Risk Analysis in Documentary Letter of Credit Operation

2017 ◽  
Vol 0 (0) ◽  
Author(s):  
Hamed Alavi
Keyword(s):  
Risk Management ◽  
International Trade ◽  
Risk Analysis ◽  
Current Paper ◽  
Management Theory ◽  
Letter Of Credit ◽  
Legal Principles ◽  
Strict Compliance ◽  
Letters Of Credit

Abstract Documentary Letters of Credit are among most popular methods of payment used in international trade. They function as an irrevocable promise of issuing a bank to pay instead of an applicant buyer to a beneficiary seller under the condition that the beneficiary presents complying documents with terms and conditions of the credit to the bank. One of the reasons for the popularity of the LCs in international trade is shifting the payment risk from an individual buyer to a bank with a much stronger financial standing. However, LC operation in international trade is not free of risk. Despite the fact that two main principles of the Documentary Letter of Credit’s Operation (Principle of independence and principle of strict compliance) facilitate the process of international trade significantly, but still all parties involved in LC operation are supposed to be cautious about the existing risks relevant to their role in LC operation. Current paper tries to use legal principles of documentary credits and risk management theory in order to define existing risks to each party (beneficiary, applicant and bank) in international LC transaction and find an answer to the question of what are exposing risks for involved parties? For this purpose, the paper starts with an explanation of the two main principles of LC operation and moves forward with using the risk management theory to explain existing risks for each party in detail.

scholarly journals The Link Between Incoterms 2000 and Letter of Credit Documentation Requirement and Payment Risk

2006 ◽  
Vol 1 (4) ◽  
Author(s):  
Roberto Bergami
Keyword(s):  
International Trade ◽  
Preliminary Data ◽  
Letter Of Credit ◽  
Preliminary Results ◽  
Data Content ◽  
Industry Survey ◽  
Letters Of Credit

Letters of credit are an important finance instrument for international trade. These instruments are particularly useful in trade where the transactional values and trading risks are high. Essentially the letter of credit is a substitute for a buyer’s risk with that of his bank, as it underwrites the transaction. Exporters experience difficulties in achieving documentary compliance to the bank’s satisfaction and therefore run the risk of not being paid. Compliance is based on the accuracy and form of data content on documents required by the letter of credit. The more voluminous and complex the documentary requirements, the higher the non-compliance risk. This paper explores the link between international delivery terms and documentary requirements of the letter of credit. Preliminary data from an industry survey suggests that exporters are contracting on international delivery terms that may leave them unnecessarily exposed to non-payment risks. Although further investigation is required to determine whether alternate delivery terms would diminish the exporter’s risk, preliminary results indicate that it is possible to reduce payment risk by the strategic use of international delivery terms.

24. Documentary payments

2019 ◽  
pp. 645-690
Author(s):  
Eric Baskind ◽  
Greg Osborne ◽  
Lee Roach
Keyword(s):  
International Trade ◽  
Legal Issues ◽  
Letter Of Credit ◽  
Payment Mechanism ◽  
Letters Of Credit ◽  
Bill Of Exchange ◽  
International Sales

This chapter is divided into two main parts. First, it aims to provide an introduction to the concept of an important piece of property called an instrument, principally by focusing on one specific example: the bill of exchange. Second, the chapter considers a bank payment mechanism called the letter of credit, especially in conjunction with bills of exchange. Bills of exchange, of which cheques are a particular type, although declining in importance in domestic sales, remain important in international sales. While bills of exchange are not the only instruments, and letters of credit are not the only mechanism supporting the financing of international trade, focusing on these two important commercial documents makes it possible to obtain a good understanding of the types of legal issues involved in documentary payments.

scholarly journals RISKS AND REMEDY IN ISLAMIC AND CONVENTIONAL LETTER OF CREDIT: JORDANIAN PRACTICES

2020 ◽  
Vol 2 (01) ◽  
pp. 54
Author(s):  
Emad Mohammad Al amaren ◽  
Mohd Zakhiri bin Md. Nor ◽  
Che Thalbi Bt Md. Ismail
Keyword(s):  
International Trade ◽  
Foreign Trade ◽  
Letter Of Credit ◽  
Letters Of Credit ◽  
Conventional Banks

International trade and the movement of goods between parties living in different countries have spread in the last century and have become one of the fundamental features of the current trade. This proliferation of international contracts, of course, has its own problems. The problems of external Islamic or conventional letters of credit affect export, since letters of credit are considered a valuable tool used in financing foreign trade operations. Therefore, the problems faced by exporters in letter of credit reflect on and impact trade in general. Thus, the fewer the credit problems are, the more active foreign trade especially export will be. But if problems are relatively large, exports will contract. This study attempts to identify the problems of external and internal letters of credit facing the Jordanian traders and Jordanian Islamic and conventional banks, and to analyze them in an organized scientific manner, then proposing the appropriate recommendations to address these problems.

PRINCIPLE OF AUTONOMY IN LETTER OF CREDIT: MALAYSIAN PRACTICE

2012 ◽  
Vol 19 (2) ◽  
Author(s):  
Rosmawani Che Hashim ◽  
Ahmad Azam Othman ◽  
Akhtarzaite Abdul Aziz
Keyword(s):  
International Trade ◽  
Significant Role ◽  
Case Law ◽  
Huge Amount ◽  
Letter Of Credit ◽  
Relevant Case ◽  
Method Of Payment ◽  
Almost All

The term letter of credit (LC) is not uncommon in international trade as it is the most frequently used method of payment by seller and buyer in their sales contract. LC serves its significant role by facilitating payment between buyer and seller from different countries, who are always prejudiced towards each other on the issue of payment, especially when the deal involves a huge amount of money. By using LC, the seller and buyer will be represented by their own bankers whose function, among others is to issue an LC for the buyer and pay on presentation of seller’s documents which strictly comply to LC requirements. It is well-known that LC is governed by the principle of autonomy or also referred to as the principle of independence1 which indicates LC, being a contract of payment is totally separate from the underlying sales contract. Banks are concerned with documents only and not with the goods. LC transaction can be governed by the Uniform Custom and Practice for Documentary Credit, known as the UCP through express incorporation which provides the rules relating to LC matters and is adopted in almost all LC transactions. This paper discusses the nature, background and significance of principle of autonomy in LC transaction. In elaborating the provisions on the principle of autonomy in the UCP 600, comparisons between relevant articles in the UCP 500 are highlighted. The discussion also focuses on relevant case law and on the application of the autonomy principle in conventional and Islamic LC. The paper concludes with the finding that Malaysian bankers fully subscribe to the principle of autonomy as outlined by the UCP 600.

scholarly journals PREVENTIVE MEASURES TO MITIGATE THE RISK OF FRAUD IN LETTERS OF CREDIT TRANSACTIONS IN MALAYSIA

2021 ◽  
Vol 12 (Number 1) ◽  
pp. 27-49
Author(s):  
Rushmila Bintay Rafique ◽  
A. Vijayalakshmi Venugopal
Keyword(s):  
Preventive Measures ◽  
Credit System ◽  
Letter Of Credit ◽  
Full Compliance ◽  
Global Standards ◽  
Depth Analysis ◽  
International Trading ◽  
Standard Of Practice ◽  
Letters Of Credit ◽  
Primary Focus

This article attempts to analyse the issue of fraud in letters of credit (LC) transactions, also known as documentary credits. There are numerous reported cases of fraud in LC transactions, which remain a continuing risk. The UCP 600 is a popular standard of practice for banks, which confirms that banks must honour payment to the seller upon full compliance with the documentary credit requirements. Such payments have been made despite being presented with falsified documents or substandard goods being delivered. It might not be realistic to expect that the International Chamber of Commerce (ICC) can create global standards relating documentary credits, which cover the practicalities of the existing system and relevant legalities applicable to the letter of credit system in international trading. Each party involved may have a responsibility to take some preventive measures to mitigate the risk of fraud. The doctrinal method is used to conduct this study because it involves an in-depth analysis of the gap within the Malaysian system and the strategies that maybe be adopted to overcome the risks associated with LC fraud. Findings reveal that LC documents can be easily falsified, and the occurrence of LC fraud is not uncommon in Malaysia. However, given the lack of literature it has not been highlighted in the past couple of years. The primary focus of this article is to suggest preventive measures that the respective parties could take to protect themselves from fraudulent dealings involving LCs.

The Letter of Credit, its resilience and viability in securing international commercial transactions

2014 ◽  
Vol 13 (3) ◽  
pp. 246-264
Author(s):  
Norman Mugarura
Keyword(s):  
International Trade ◽  
Data Sources ◽  
Commercial Product ◽  
Social Implications ◽  
Content Type ◽  
Letter Of Credit ◽  
Commercial Practice ◽  
Law And Policy ◽  
International Payment ◽  
Payment Mechanisms

Purpose – This paper aims to address issues of law and policy, the potential pitfalls such as fraud, conflict of law and documents discrepancies that are often encountered by the parties in usage and practice of the Letter of Credit (LC). The article has gleaned other forms of payment mechanisms in international commercial trade to demonstrate that despite the upsurge in international payment instruments, the LC has remained a viable commercial product. This article aims to provide an in-depth analysis of the law governing the LC and why it has remained resilient and a viable commercial product for many years. Design/methodology/approach – The author has utilized the current version of UCP 600 (2007) and the legislation such as Brussels Convention (2000) in Europe, litigated cases and secondary data sources in writing the paper. The data generated were then evaluated taking into account the most recent legal and policy changes regarding the usage and practice of the LC in international commercial transactions. The paper straddles many issues but evaluated in a distinctive way to underscore the purpose for writing it. Findings – The findings of the paper have demonstrated that despite a myriad of payment mechanisms as a result of innovation in international trade, the LC is still a viable commercial product. Parties will need to be knowledgeable and skilled enough to keep abreast of dynamic changes on law and policy relating to usage and practice of LCs. Short of that parties could be vulnerable to risk exigencies inherent in international trade they sought to eliminate by subscribing to the LC. Research limitations/implications – The limitations lie in realm that the paper was largely library-based and the author did not carry out extensive corroborative research studies on issues it was written on. Thus, any future work on the LC will try to corroborate issues of policy and practice and how they are internalized in commercial practice. Practical implications – The paper has articulated the governing law of the LC and the context in which it is harnessed in commercial practice. It has articulated potential risk areas that the parties ought to watch out for before and during the process of harnessing the LC as a payment mechanism. The paper has demonstrated that risks inherent in international trade are now higher than in past decades because of globalization and its attendant fluid environment. The paper is relevant to banks, regulators, governments and also students because it internalizes most recent changes in the usage and practice of the LCs in international trade. Social implications – International trade affects local businesses, banks, ordinary people, national governments and it has far reaching implications for societies as whole. The LC is utilized to mitigate, if not eliminate, potential risks in international trade transactions, and it has far reaching social implications for economies to be overlooked. Originality/value – The article has gleaned other forms of payment mechanisms in international commercial trade to tease out that despite the upsurge in international payment mechanisms, the LC has remained a viable commercial product. This article is a MUST read because it internalizes recent changes in the usage and practice of documentary credit which have not been addressed in its context. Even though the article has been undertaken by analysis of secondary and primary data sources, the author has done so in a distinctive way to underscore the most recent changes to the usage and practice of the LC and the purpose it was written.

Part I Legal and Practical Challenges to Traditional Trade Finance, 7 Letters of Credit and Stop Payment Orders Made in the Issuer’s Country

2021 ◽  
Author(s):  
Enonchong Nelson
Keyword(s):  
Common Law ◽  
Critical Examination ◽  
Letter Of Credit ◽  
Rome Convention ◽  
The Us ◽  
The Law ◽  
Letters Of Credit ◽  
Contractual Obligations ◽  
Rome I ◽  
Made In

This chapter offers a critical examination of the significant, but largely unexplored, question whether, and to what extent, a foreign order restraining the issuing bank from making payment under a letter of credit can afford the issuing bank a good defence to a claim in a court outside that bank’s home jurisdiction. At common law, in England as well as in other jurisdictions, such as Hong Kong, Singapore and the US, such orders have only limited effect in the forum. This chapter argues that the approach of the English courts to article 4 of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations meant that such orders could defeat a claim against the issuing bank in England only in very narrow circumstances. It goes on to examine the extent to which the changes introduced in article 4 of the Rome I Regulation of 17 June 2008 on the law applicable to contractual obligations have altered the position under English law, so that stop payment orders made in the issuer’s home jurisdiction may now have a much wider reach in England. The chapter contends that notwithstanding the amendments to article 4, in the specific context of letters of credit, the approach of the English courts under the Rome I Regulation is likely to be broadly similar to that under the Rome Convention. The Rome I Regulation has not (even unintentionally) opened the door to stop payment orders made in the issuer’s home jurisdiction.

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