URDG758 中国银行培训

nullURDG758*URDG758Article 1 Application of URDG Apply to any demand guarantee or counter-guarantee that expressly indicates it is subject to them, except modifies or excludes them. Demand Guarantee is subject to the URDG, Counter Guarantee is also subject to the URDG. Counter Guarantee is also subject to the URDG, Demand Guarantee is subject to the URDG? Demand Guarantee is subject to the URDG excluded article X, Counter Guarantee is subject to the URDG excluded article X? modifies or excludes? URDG758*URDG758Article 1 Application of URDG Where, at the request or with the agreement of the instructing party, a demand guarantee or counter-guarantee is issued subject to the URDG, the instructing party is deemed to have accepted the rights and obligations expressly ascribed to it in these rules. URDG 1992 version or 2010 version? Can the URDG apply where not expressly incorporated in a guarantee?URDG758*URDG758Article 2 Definitions Applicant means the party indicated in the guarantee as having it obligation under the underlying relationship supported by the guarantee. The applicant may or may not be the instructing party. Instructing party means the party, other than the counter-guarantor, who gives instructions to issue a guarantee or counter-guarantee and is responsible for indemnifying the guarantor or, in the case of a counter-guarantee, the counter-guarantor. The instructing party may or may not be the applicant. Party v. BankURDG758*URDG758Article 2 Definitions Demand guarantee means any signed undertaking, however named or described, providing for payment on presentation of a complying demand. Structure of five-party guarantee Can guarantor issue a guarantee acting for its own account? Instructing Party Beneficiary Guarantor Applicant Counter Guarantor Principal URDG758*URDG758Article 2 Definitions Presentation means the delivery of a document under a guarantee to the guarantor or the document so delivered. It includes a presentation other than for a demand, for example, a presentation for the purpose of triggering the expiry of the guarantee or a variation of its amount. Document means a signed or unsigned record of information, in paper or in electronic form, that is capable of being reproduced in tangible form by the person to whom it is presented. In these rules, a document includes a demand and a supporting statement. Document includes fax or e-mail?URDG758*URDG758Article 2 Definitions Complying presentation under a guarantee means a presentation that is in accordance with, first, the terms and conditions of that guarantee, second, these rules so far as consistent with those terms and conditions and, third, in the absence of a relevant provision in the guarantee or these rules, international standard demand guarantee practice. Complying demand means a demand that meets the requirements of a complying presentation. Complying presentation under UCP600? Presentation v. Demand? URDG758*URDG758Article 2 Definitions International standard demand guarantee practice This is meant as a first step to supplementing in the next few years the revised URDG with a body of codified standard practices similar to ISBP when ICC feel that Opinions, DOCDEX decisions and other position papers would allow to identify distinctively such a body of standards in the meantime, it is felt that the new concept of ISDGP so for as consistent with the URDG will allow parties judges and arbitrators more latitude in identifying solutions to disputes while remaining within the spirit and general principals of the URDG. ISDGP, a gap-filler to URDG. DOCDEX: ICC Rules for Documentary Instruments Dispute Resolution Expertise. 19971001.URDG758*URDG758Article 2 Definitions Underlying relationship means the contract, tender conditions or other relationship between the applicant and the beneficiary on which the guarantee is based. Guarantor’s own records means records of the guarantor showing amounts credited to or debited from accounts held with the guarantor, provided the record of those credits or debits enables the guarantor to identify the guarantee to which they relate; The case of “other relationship”? URDG758*URDG758Article 2 Definitions expiry means the expiry date or the expiry event or, if both are specified, the earlier of the two; expiry date means the date specified in the guarantee on or before which a presentation may be made; expiry event means an event which under the terms of the guarantee results in its expiry, whether immediately or within a specified time after the event occurs, for which purpose the event is deemed to occur only: a. when a document specified in the guarantee as indicating the occurrence of the event is presented to the guarantor, or b. if no such document is specified in the guarantee, when the occurrence of the event becomes determinable from the guarantor's own records. Valid until 30 days after delivery evidenced by cargo receipt ?URDG758*URDG758Article 3 Interpretation Branches of a guarantor in different countries are considered to be separate entities. a guarantee includes a counter-guarantee and any amendment a guarantor includes a counter-guarantor a beneficiary includes the party in whose favour a counter-guarantee is issued. Any requirement for presentation of one or more originals or copies of an electronic document is satisfied by the presentation of one electronic document. Different Branches in one country are considered to be one?URDG758*URDG758Article 3 Interpretation When used with a date or dates or a period i. Include:" from ", " to ", " until ", " till " and " between ", ii. Exclude: "before" and "after" , iii. Exclude+ Include: " within ". Terms such as "first class", "well-known", "qualified", "independent", "official", "competent" or "local" when used to describe the issuer of a document allow any issuer except the beneficiary or the applicant to issue that document. Allow instructing party to issue that document?URDG758*URDG758Article 4 Issue and effectiveness A guarantee is issued when it leaves the control of the guarantor. A guarantee is irrevocable on issue even if it does not state this. The beneficiary may present a demand from the time of issue of the guarantee or such later time or even as the guarantee provided. What does “leaves the control of the guarantee” mean?URDG758*URDG758Article 5 Independence of guarantee and counter-guarantee A guarantee is independent of underlying relationship, the application. A counter guarantee is independent of guarantee, underlying relationship the application any other counter-guarantee Direct guarantee and Indirect guarantee URDG758*URDG758Article 6 Documents v. goods, services or performance Guarantors deal with documents and not with goods, services or performance to which the documents may relate.URDG758*URDG758Article 7 Non-documentary conditions A guarantee should specify a document to indicate compliance with the condition contained in the guarantee. If the guarantee does not specify any such document and the fulfilment of the condition cannot be determined 1.from the guarantor’s own records, or 2.from an index specified in the guarantee then the guarantor will deem such conditions as not stated and will disregard it, except for the purpose of determining date in a document presented do not conflict with data in guarantee. What is an index?URDG758*URDG758Article 8 Content of instructions and guarantees All instructions should be clear and precise and should avoid excessive detail. It is recommended that all guarantees specify: a. the applicant b. the beneficiary c. the guarantor d. a reference number or other information identifying the underlying relationship; e. a reference number or other information identifying the issued guarantee or, in the case of a counter-guarantee, the issued counter-guarantee; Should specify the instructing party?URDG758*URDG758Article 8 Content of instructions and guarantees It is recommended that all guarantees specify: f. the amount or maximum amount payable and the currency in which it is payable; g. the expiry of the guarantee; h. any terms for demanding payment; i. whether a demand or other document shall be presented in paper and/or electronic form; j. the language of any document specified in the guarantee; and k. the party liable for the payment of any charges. The changes to URDG458?URDG758*URDG758Article 9 Application not taken up Where, at the time of receipt of the application, the guarantor is not prepared, or the guarantor is unable to issue the guarantee, the guarantor should without delay so inform the party that gave the guarantor its instructions. The request to issue a domestic guarantee subject to URDG?URDG758*URDG758Article 10 Advising of guarantee or amendment Advice a guarantee: satisfy the apparent authenticity, and advice accurately reflects the terms and conditions of guarantee An advising party or a second advising party advises a guarantee without any additional representation or any undertaking whatsoever to the beneficiary. If a party cannot satisfy the apparent authenticity and elects nonetheless to advise that guarantee, the party should state the same. Advising a guarantee should whenever possible use the same party to advise any amendment to that guarantee. a second advising party?URDG758*URDG758Article 11 Amendment An amendment made without the beneficiary’s agreement is not binding on the beneficiary. The beneficiary may reject an amendment of the guarantee at any time until it notifies its acceptance of the amendment, or make a presentation that complies only with the guarantee as amended. Partial acceptance of an amendment is not allowed and will be deemed to be notification of rejection of the amendment. A provision in an amendment to the effect that the amendment shall take effect unless rejected within a certain time shall be disregarded. What does “complies only” mean?URDG758*URDG758Article 12 Extent of guarantor’s liability under the guarantee A guarantor is liable to the beneficiary only in accordance with, the terms and conditions of the guarantee and, these rules so far as consistent with those terms and conditions, Up to the guarantee amount. Beyond the expiry date? URDG758*URDG758Article 13 Variation of amount of guarantee A guarantee may provide for the reduction or the increase of its amount on specified dates or on the occurrence of a specified event which under the terms of the guarantee results in variation of its amount, and for this purpose the event is deemed to have occurred only: a. when a document specified in the guarantee as indicating the occurrence of the event is presented to the guarantor, or b. if not such document is specified in the guarantee, when the occurrence of the event becomes determinable from the guarantor’s own records or from an index specified in the guarantee. URDG758*URDG758Article 14 Presentation A presentation shall be made to the guarantor: at the place of issue, or such other place as is specified in the guarantee and, on or before expiry A presentation has to be complete unless it indicates that it is to be completed later. In that case, it shall be completed before expiry. Each presentation shall state the guarantor’s reference number of the guarantee. If it does not, the time for examination of a demand start on the date of identification. Documents issued by applicant or beneficiary shall be in the language of the guarantee. Any other person, any language. The function of the statement “presentation to be completed later”?URDG758*URDG758Article 14 Presentation A guarantee indicates presentation in electronic form, the guarantee should specify the format, the system for the data delivery and the electronic address for that presentation. If not specify, presented in any electronic format authenticated or in paper form are acceptable. A guarantee indicates presentation in paper form, may use any mode of delivery unless excluded by the guarantee. A guarantee does not indicate in electronic or paper form, any presentation shall be made in paper form. Reject a presentation in electronic form when form of presentation is not specified ?URDG758*URDG758Article 15 Requirements for demand A demand under the guarantee shall be supported a statement, indicating in what respect the applicant is in breach of its obligations under the underlying relationship. The statement may be in the demand or in a separate singed document accompanying or identifying the demand. A demand under the counter guarantee shall be supported by a statement indicating that such party has received a complying demand under the guarantee or counter guarantee. The above requirement applies except to the extend the guarantee or counter-guarantee expressly excludes this requirement. Exclusion terms such as “The supporting statement under article 15(a)(b) is excluded” satisfy the requirement of this paragraph. Such as ?URDG758*URDG758Article 15 Requirements for demand Neither the demand nor the supporting statement may be dated before the date when the beneficiary is entitled to present a demand. Any other document may be dated before that date. Neither the demand, nor the supporting statement, nor any other document may be dated later than the date of its presentation. URDG758*URDG758Article 16 Information about demand The guarantor shall without delay inform the instructing party or, where applicable, the counter-guarantor of any demand under the guarantee and of any request, as an alternative, to extend the expiry of the guarantee. The counter-guarantor shall without delay inform the instructing party of any demand under the counter-guarantee and of any request, as an alternative, to extend the expiry of the counter-guarantee. Inform Non-complying demand ?URDG758*URDG758Article17 Partial demand & multiple demand; amount of demand Partial demand: A demand may be made for less than the full amount available Multiple demand: More than one demand may be made Multiple demand prohibited: only one demand covering all or part of the amount available may be made one demand is rejected, another demand can be made on or before expiry of the guarantee. It is a non-complying demand if: it is for more than the amount available under the guarantee, or any supporting statement or other documents required by the guarantee indicate amounts that in total are less than the amount demanded. The case less than and more than? URDG758*URDG758Article 18 Separateness of each demand a. Making a demand that is not a complying demand or withdrawing a demand does not waive or otherwise prejudice the right to make another timely demand, whether or not the guarantee prohibits partial or multiple demands. b. Payment of a demand that is not a complying demand does not waive the requirement for other demands to be complying demands. URDG758*URDG758Article 19 Examination The guarantor shall determine, on the basis of a presentation alone, whether it appears on its face to be a complying presentation. Data in a document required by the guarantee shall be examined in context with that document, the guarantee and these rules. Data need not be identical to, but shall not conflict with, data in that document, any other required document or the guarantee. The guarantor will accept a document if its content appears to fulfil the function of the document required by the guarantee. Any signature will be accepted if a singed document is required. A document is not required but presented, it will disregarded and may be returned to the presenter. How to handle the document not required?URDG758*URDG758Article 19 Examination The guarantee need not recalculate the beneficiary’s calculations under a formula stated or referenced in a guarantee. The guarantor shall consider a requirement for a document to be legalized, visaed, certified or similar as satisfied by any signature, mark, stamp or label on the document which appears to satisfy that requirement. Recalculate the applicant’s calculations?URDG758*URDG758Article 20 Time for examination of demand; payment If a presentation of a demand does not indicate that it is to be completed later, the guarantor shall, within five business days following the day of presentation, examine that demand and determine if it is a complying demand. This period is not shortened or otherwise affected by the expiry of the guarantee on or after the date of presentation. However, if the presentation indicates that it is to be completed later, it need not be examined until it is completed. Place for payment: Payment is to be made at the branch or office of the guarantor or counter-guarantor that issued the guarantee or counter-guarantee or such other place as may be indicated in that guarantee or counter-guarantee Examine the presentation to be completed later?URDG758*URDG758Article 21 Currency of payment Pay a complying demand in the currency specified in the guarantee If, on any date on which a payment is to be made under guarantee: the guarantor is unable to pay in such currency due to an impediment beyond control, or it is illegal under the law of the place to make payment in such currency. ---the guarantor shall make payment in the currency of the place for payment even if the guarantee indicates that payment can only be made in the currency specified in the guarantee. --the instructing party or the counter guarantor shall be bound by a payment in such currency . - the guarantor or counter guarantor may elect to be reimbursed either in actual payment currency or currency specified in the guarantee. Exchange risk?URDG758*URDG758Article 21 Currency of payment Payment or reimbursement in the currency of the place for payment under Article 21 paragraph (b) is to be made according to the applicable rate of exchange prevailing there when payment or reimbursement is due. However, if the guarantor has not paid at the time when payment is due, the beneficiary may require payment according to the applicable rate of exchange prevailing either when payment was due or at the time of actual payment. the applicable rate of exchange prevailing?URDG758*URDG758Article 22 Transmission of copies of complying demand The guarantor shall without delay transmit a copy of the complying demand and of any related documents to the instructing party or, where applicable, to the counter-guarantor for transmission to the instructing party. However, neither the counter-guarantor nor the instructing party, as the case may be, may withhold payment or reimbursement pending such transmission. When C/Guarantor find the demand to guarantor is not complying?URDG758*URDG758Article 23 Extend or pay where complying demand, a request to extend or pay, the guarantor may suspend payment for a period not exceeding 30 calendar days following its receipt of the demand. where complying demand, a request to extend or pay, the counter guarantor may suspend payment for a period not exceeding four calendar days less the period above. The guarantor shall without delay inform the instructing party or counter guarantor of the period of suspension of payment under the guarantee. So does counter guarantor. a case studyURDG758*URDG758Article 23 Extend or pay The demand for payment is deemed to be withdrawn if the period of extension requested is granted in time. The guarantor or counter guarantor