Six queries were received for discussion at the ICC Banking Commission meeting that was scheduled to be held in Dubai, in April 2020. In view of the fact that the meeting was cancelled, these were finalised remotely with ICC National Committees.
TA.897 - withdrawn before the circulation of papers to National Committees
TA.898 - validity of discrepancies in respect of a presentation under a standby credit
A discrepancy was raised by the confirming bank that the required irrevocable attestation to be issued by the beneficiary was incomplete in that it did not state the words ‘our obligations'.
It was deliberated that, in view of the fact that the attestation plainly stated ‘We', then this was a clear indication that it referred to the obligations of the beneficiary.
A further discrepancy stated that the bill of lading did not state a goods description. However, the analysis of the opinion did not agree, and pointed out that it was obvious that the bill of lading did indeed include a valid goods description.
In conclusion, neither discrepancy was considered to be valid.
TA.899 - whether or not an original or a copy CMR should have been presented under a documentary credit.
A documentary credit required, amongst other documents, presentation of a CMR in 1 copy. It was questioned, in relation to ISBP 745 paragraph 29 (d)(i), as to whether or not this should be an original CMR or a copy CMR. It should be noted that the credit required that the original CMR for sender/shipper was to be sent with the goods and a beneficiary certificate was to be presented to this effect.
The analysis clarified that although ISBP 745 paragraph 29 (d) (i) deems that a request for "Invoice in 1 copy" is deemed to be a requirement for an original invoice, this is qualified specifically for transport documents in ISBP 745 paragraph A30 (b) wherein it states that when a credit requires the presentation of a copy of a transport document and indicates a disposal instruction for all originals of that document, a presentation is not to include any original of such document.
As such, under the terms and conditions of this particular credit, a copy of the CMR (not the original) must be presented.
It was further clarified that the presented copy of the CMR would not be examined under UCP 600 article 24 but, instead, be based on UCP 600 sub-articles 14 (f) and 14 (d).
TA.900 - originality of MT760 message presented under a documentary credit
A credit required, among other documents, the presentation of a performance guarantee. The guarantee was actually issued by SWIFT MT760 several days prior to the presentation of documents under the credit. As such, the presentation included a copy of the MT760 rather than the original. This was rejected by the issuing bank on the basis that they required the original.
The analysis outlined that, in view of the fact that the guarantee had already issued via the SWIFT network (which was in line with international standard banking practice) and that there was no dispute by the issuing bank that it had been received, it would not be possible to re-present the original MT760 guarantee in a paper form as it had already been issued previously by SWIFT message.
It was concluded that the paper version that was presented should be considered as a physical representation of the SWIFT original. As such, the discrepancy was not valid.
TA.901 - reimbursement value date under a documentary credit
A credit was issued with the condition that, "UPON RECEIPT OF CREDIT COMPLYING DOCUMENTS AT OUR ABOVE ADDRESS, WE WILL COVER YOU ACCORDING TO YOUR INSTRUCTIONS, VALUE 5 NEW YORK/GENEVA BANK BUSINESS DAYS"
The query enquired as to whether this meant reimbursement was to be made on the day of receipt of documents (without the issuing bank having first determined that the presentation was complying), or once the issuing bank had determined that the presentation was complying.
It was considered that it was imperative that banks must have the standard period of time in which to examine documents and determine compliance. As stated in the Analysis, UCP 600 sub-articles 14 (b) and 15 (a) cannot be ignored.
The issuing bank cannot know the documents are credit complying until they have been examined, and UCP 600 allows five banking days for such examination.
The counting of the number of days can only start after documents have been found to be complying by the issuing bank. If banks are not allowed this period of time, it would go against standard banking practice. The reimbursement wording is not seen as poor wording and is, in fact, very common across the majority of credits available by negotiation.
TA.902 - COVID-19 cause on a bill of lading
A bill of lading was presented under a documentary credit and included a ‘COVID-19' clause on the bill of lading which, essentially, allowed the carrier to arrange an alternative vessel, and/or discharge the goods in an alternative port.
In view of the fact that the stated clause was a term and condition of carriage then, in accordance with UCP 600 sub-article 20 (a) (v), it is not to be examined.