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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Appendix 1 Icc Uniform Rules for Demand Guarantees(URDG 758) and Model Forms
Appendix 2 The Business case for the Revision of the URDG
Appendix 3 Icc Policy Statement on Originals
Appendix 4 Docdex Rules
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Appendix 1
ICC Uniform Rules for Demand Guarantees (URDG 758) and Model Forms
Article 1
Application of URDG
a. The Uniform Rules for Demand Guarantees (“URDG”) apply to any demand guarantee or counter-guarantee that expressly indicates it is subject to them. They are binding on all parties to the demand guarantee or counter-guarantee except so far as the demand guarantee or counter-guarantee modifies or excludes them.
b. Where, at the request of a counter-guarantor, a demand guarantee is issued subject to the URDG, the counter-guarantee shall also be subject to the URDG, unless the counter-guarantee excludes the URDG. However, a demand guarantee does not become subject to the URDG merely because the counter-guarantee is subject to the URDG.
c. 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.
d. Where a demand guarantee or counter-guarantee issued on or after 1 July 2010 states that it is subject to the URDG without stating whether the 1992 version or the 2010 revision is to apply or indicating the publication number, the demand guarantee or counter-guarantee shall be subject to the URDG 2010 revision.
Article 2
Definitions
In these rules:
Advising party means the party that advises the guarantee at the request of the guarantor;
Applicant means the party indicated in the guarantee as having its obligation under the underlying relationship supported by the guarantee. The applicant may or may not be the instructing party;
Application means the request for the issue of the guarantee;
Authenticated, when applied to an electronic document, means that the party to whom that document is presented is able to verify the apparent identity of the sender and whether the data received have remained complete and unaltered;
Beneficiary means the party in whose favour a guarantee is issued;
Business day means a day on which the place of business where an act of a kind subject to these rules is to be performed is regularly open for the performance of such an act;
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Charges mean any commissions, fees, costs or expenses due to any party acting under a guarantee governed by these rules;
Complying demand means a demand that meets the requirements of a complying presentation;
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;
Counter-guarantee means any signed undertaking, however named or described, that is given by the counter-guarantor to another party to procure the issue by that other party of a guarantee or another counter-guarantee, and that provides for payment upon the presentation of a complying demand under the counter-guarantee issued in favour of that party;
Counter-guarantor means the party issuing a counter-guarantee, whether in favour of a guarantor or another counter-guarantor, and includes a party acting for its own account;
Demand means a signed document by the beneficiary demanding payment under a guarantee;
Demand guarantee or guarantee means any signed undertaking, however named or described, providing for payment on presentation of a complying demand;
Document means a signed or unsigned record of information, in paper or 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;
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.
Guarantee see demand guarantee;
Guarantor means the party issuing a guarantee, and includes a party acting for its own account;
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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;
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;
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;
Presenter means a person who makes a presentation as or on behalf of the beneficiary or the applicant, as the case may be;
Signed when applied to a document, a guarantee or a counter-guarantee, means that an original of the same is signed by or on behalf of its issuer, whether by an electronic signature that can be authenticated by the party to whom that document, guarantee or counter-guarantee is presented or by handwriting, facsimile signature, perforated signature, stamp, symbol or other mechanical method;
Supporting statement means the statement referred to in either article 15(a) or article 15(b);
Underlying relationship means the contract, tender conditions or other relationship between the applicant and the beneficiary on which the guarantee is based.
Article 3
Interpretation
a. Branches of a guarantor in different countries are considered to be separate entities.
b. Except where the context otherwise requires, a guarantee includes a counter-guarantee and any amendment to either, a guarantor includes a counter-guarantor, and a beneficiary includes the party in whose favour a counter-guarantee is issued.
c. Any requirement for presentation of one or more originals or copies of an electronic document is satisfied by the presentation of one electronic document.
d. When used with a date or dates to determine the start, end or duration of any period, the terms:
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the date or dates mentioned.
e. The term “within”, when used in connection with a period after a given date or event, excludes that date or the date of that event but includes the last date of that period.
f. 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.
Article 4
Issue and effectiveness
a. A guarantee is issued when it leaves the control of the guarantor.
b. A guarantee is irrevocable on issue even if it does not state this.
c. The beneficiary may present a demand from the time of issue of the guarantee or such later time or event as the guarantee provides.
Article 5
Independence of guarantee and counter-guarantee
a. A guarantee is by its nature independent of the underlying relationship and the application, and the guarantor is in no way concerned with or bound by such relationship. A reference in the guarantee to the underlying relationship for the purpose of identifying it does not change the independent nature of the guarantee. The undertaking of a guarantor to pay under the guarantee is not subject to claims or defences arising from any relationship other than a relationship between the guarantor and the beneficiary.
b. A counter-guarantee is by its nature independent of the guarantee, the underlying relationship, the application and any other counter- guarantee to which it relates, and the counter-guarantor is in no way concerned with or bound by such relationship. A reference in the counter-guarantee to the underlying relationship for the purpose of identifying it does not change the independent nature of the counter- guarantee. The undertaking of a counter-guarantor to pay under the counter-guarantee is not subject to claims or defences arising from any relationship other than a relationship between the counter-guarantor and the guarantor or other counter-guarantor to whom the counter- guarantee is issued.
Article 6
Documents v. goods, services or performance
Guarantors deal with documents and not with goods, services or performance to which the documents may relate.
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Article 7
Non-documentary conditions
A guarantee should not contain a condition other than a date or the lapse of a period without specifying a document to indicate compliance with that condition. If the guarantee does not specify any such document and the fulfilment of the condition cannot be determined from the guarantor’s own records or from an index specified in the guarantee, then the guarantor will deem such condition as not stated and will disregard it except for the purpose of determining whether data that may appear in a document specified in and presented under the guarantee do not conflict with data in the guarantee.
Article 8
Content of instructions and guarantees
All instructions for the issue of guarantees and guarantees themselves 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;
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.
Article 9
Application not taken up
Where, at the time of receipt of the application, the guarantor is not prepared or is unable to issue the guarantee, the guarantor should without delay so inform the party that gave the guarantor its instructions.
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URDG 758
Article 10
Advising of guarantee or amendment
a. A guarantee may be advised to a beneficiary through an advising party. By advising a guarantee, whether directly or by utilizing the services of another party (“second advising party”), the advising party signifies to the beneficiary and, if applicable, to the second advising party, that it has satisfied itself as to the apparent authenticity of the guarantee and that the advice accurately reflects the terms and conditions of the guarantee as received by the advising party.
b. By advising a guarantee, the second advising party signifies to the beneficiary that it has satisfied itself as to the apparent authenticity of the advice it has received and that the advice accurately reflects the terms and conditions of the guarantee as received by the second advising party.
c. An advising party or a second advising party advises a guarantee without any additional representation or any undertaking whatsoever to the beneficiary.
d. If a party is requested to advise a guarantee or an amendment but is not prepared or is unable to do so, it should without delay so inform the party from whom it received that guarantee, amendment or advice.
e. If a party is requested to advise a guarantee, and agrees to do so, but cannot satisfy itself as to the apparent authenticity of that guarantee or advice, it shall without delay so inform the party from whom the instructions appear to have been received. If the advising party or second advising party elects nonetheless to advise that guarantee, it shall inform the beneficiary or second advising party that it has not been able to satisfy itself as to the apparent authenticity of the guarantee or the advice.
f. A guarantor using the services of an advising party or a second advising party, as well as an advising party using the services of a second advising party, to advise a guarantee should whenever possible use the same party to advise any amendment to that guarantee.
Article 11
Amendments
a. Where, at the time of receipt of instructions for the issue of an amendment to the guarantee, the guarantor for whatever reason is not prepared or is unable to issue that amendment, the guarantor shall without delay so inform the party that gave the guarantor its instructions.
b. An amendment made without the beneficiary’s agreement is not binding on the beneficiary. Nevertheless the guarantor is irrevocably bound by an amendment from the time it issues the amendment, unless and until the beneficiary rejects that amendment.
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c. Except where made in accordance with the terms of the guarantee, the beneficiary may reject an amendment of the guarantee at any time until it notifies its acceptance of the amendment or makes a presentation that complies only with the guarantee as amended.
d. An advising party shall without delay inform the party from which it has received the amendment of the beneficiary’s notification of acceptance or rejection of that amendment.
e. Partial acceptance of an amendment is not allowed and will be deemed to be notification of rejection of the amendment.
f. A provision in an amendment to the effect that the amendment shall take effect unless rejected within a certain time shall be disregarded.
Article 12
Extent of guarantor’s liability under guarantee
A guarantor is liable to the beneficiary only in accordance with, first, the terms and conditions of the guarantee and, second, these rules so far as consistent with those terms and conditions, up to the guarantee amount.
Article 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 the 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 no 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.
Article 14
Presentation
a. A presentation shall be made to the guarantor:
i. at the place of issue, or such other place as is specified in the guarantee, and
ii. on or before expiry.
b. A presentation has to be complete unless it indicates that it is to be completed later. In that case, it shall be completed on or before expiry.
c. Where the guarantee indicates that a presentation is to be made in electronic form, the guarantee should specify the format, the system for data delivery and the electronic address for that presentation. If the guarantee does not so specify, a document may be presented in any
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electronic format that allows it to be authenticated or in paper form. An electronic document that cannot be authenticated is deemed not to have been presented.
d. Where the guarantee indicates that a presentation is to be made in paper form through a particular mode of delivery but does not expressly exclude the use of another mode, the use of another mode of delivery by the presenter shall be effective if the presentation is received at the place and by the time indicated in paragraph (a) of this article.
e. Where the guarantee does not indicate whether a presentation is to be made in electronic or paper form, any presentation shall be made in paper form.
f. Each presentation shall identify the guarantee under which it is made, such as by stating the guarantor’s reference number for the guarantee. If it does not, the time for examination indicated in article 20 shall start on the date of identification. Nothing in this paragraph shall result in an extension of the guarantee or limit the requirement in article 15 (a) or (b) for any separately presented documents also to identify the demand to which they relate.
g. Except where the guarantee otherwise provides, documents issued by or on behalf of the applicant or the beneficiary, including any demand or supporting statement, shall be in the language of the guarantee. Documents issued by any other person may be in any language.
Article 15
Requirements for demand
a. A demand under the guarantee shall be supported by such other documents as the guarantee specifies, and in any event by a statement, by the beneficiary, indicating in what respect the applicant is in breach of its obligations under the underlying relationship. This statement may be in the demand or in a separate signed document accompanying or identifying the demand.
b. A demand under the counter-guarantee shall in any event be supported by a statement, by the party to whom the counter-guarantee was issued, indicating that such party has received a complying demand under the guarantee or counter-guarantee issued by that party. This statement may be in the demand or in a separate signed document accompanying or identifying the demand.
c. The requirement for a supporting statement in paragraph (a) or (b) of this article applies except to the extent that 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.
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d. 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.
Article 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.
Article 17
Partial demand and multiple demands; amount of demands
a. A demand may be made for less than the full amount available (“partial demand”).
b. More than one demand (“multiple demands”) may be made.
c. The expression “multiple demands prohibited” or a similar expression means that only one demand covering all or part of the amount available may be made.
d. Where the guarantee provides that only one demand may be made, and that demand is rejected, another demand can be made on or before expiry of the guarantee.
e. A demand is a non-complying demand if:
i. it is for more than the amount available under the guarantee, or
ii. any supporting statement or other documents required by the guarantee indicate amounts that in total are less than the amount demanded.
Conversely, any supporting statement or other document indicating an amount that is more than the amount demanded does not make the demand a non-complying demand.
Article 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.
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Article 19
Examination
a. The guarantor shall determine, on the basis of a presentation alone, whether it appears on its face to be a complying presentation.
b. 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.
c. If the guarantee requires presentation of a document without stipulating whether it needs to be signed, by whom it is to be issued or signed, or its data content, then:
i. the guarantor will accept the document as presented if its content appears to fulfil the function of the document required by the guarantee and otherwise complies with article 19 (b), and
ii. if the document is signed, any signature will be accepted and no indication of name or position of the signatory is necessary.
d. If a document that is not required by the guarantee or referred to in these rules is presented, it will be disregarded and may be returned to the presenter.
e. The guarantor need not re-calculate a beneficiary’s calculations under a formula stated or referenced in a guarantee.
f. The guarantor shall consider a requirement for a document to be legalised, visaed, certified or similar as satisfied by any signature, mark, stamp or label on the document which appears to satisfy that requirement.
Article 20
Time for examination of demand; payment
a. 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.
b. When the guarantor determines that a demand is complying, it shall pay.
c. 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 (“place for payment”).
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Article 21
Currency of payment
a. The guarantor shall pay a complying demand in the currency specified in the guarantee.
b. If, on any date on which a payment is to be made under the guarantee:
i. the guarantor is unable to make payment in the currency specified in the guarantee due to an impediment beyond its control; or
ii. it is illegal under the law of the place for payment to make payment in the specified 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, in the case of a counter-guarantee, the counter-guarantor, shall be bound by a payment made in such currency. The guarantor or counter- guarantor may elect to be reimbursed either in the currency in which payment was made or in the currency specified in the guarantee or, as the case may be, the counter-guarantee.
c. Payment or reimbursement in the currency of the place for payment under 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.
Article 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.
Article 23
Extend or pay
a. Where a complying demand includes, as an alternative, a request to extend the expiry, the guarantor may suspend payment for a period not exceeding 30 calendar days following its receipt of the demand.
b. Where, following such suspension, the guarantor makes a complying demand under the counter-guarantee that includes, as an alternative, a request to extend the expiry, the counter-guarantor may suspend payment for a period not exceeding four calendar days less than the period during which payment of the demand under the guarantee was suspended.
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c. The guarantor shall without delay inform the instructing party or, in the case of a counter-guarantee, the counter-guarantor of the period of suspension of payment under the guarantee. The counter-guarantor shall then inform the instructing party of such suspension and of any suspension of payment under the counter-guarantee. Complying with this article satisfies the information duty under article 16.
d. The demand for payment is deemed to be withdrawn if the period of extension requested in that demand or otherwise agreed by the party making that demand is granted within the time provided under paragraph (a) or (b) of this article. If no such period of extension is granted, the complying demand shall be paid without the need to present any further demand.
e. The guarantor or counter-guarantor may refuse to grant any extension even if instructed to do so and shall then pay.
f. The guarantor or counter-guarantor shall without delay inform the party from whom it has received its instructions of its decision to extend under paragraph (d) or to pay.
g. The guarantor and the counter-guarantor assume no liability for any payment suspended in accordance with this article.
Article 24
Non-complying demand, waiver and notice
a. When the guarantor determines that a demand under the guarantee is not a complying demand, it may reject that demand or, in its sole judgement, approach the instructing party, or in the case of a counter- guarantee, the counter-guarantor, for a waiver of the discrepancies.
b. When the counter-guarantor determines that a demand under the counter-guarantee is not a complying demand, it may reject that demand or, in its sole judgement, approach the instructing party for a waiver of the discrepancies.
c. Nothing in paragraphs (a) or (b) of this article shall extend the period mentioned in article 20 or dispense with the requirements of article 16. Obtaining the waiver of the counter-guarantor or of the instructing party does not oblige the guarantor or the counter-guarantor to waive any discrepancy.
d. When the guarantor rejects a demand, it shall give a single notice to that effect to the presenter of the demand. The notice shall state:
i. that the guarantor is rejecting the demand, and
ii. each discrepancy for which the guarantor rejects the demand.
e. The notice required by paragraph (d) of this article shall be sent without delay but not later than the close of the fifth business day following the day of presentation.
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f. A guarantor failing to act in accordance with paragraphs (d) or (e) of this article shall be precluded from claiming that the demand and any related documents do not constitute a complying demand.
g. The guarantor may at any time, after providing the notice required in paragraph (d) of this article, return any documents presented in paper form to the presenter and dispose of the electronic records in any manner that it considers appropriate without incurring any responsibility.
h. For the purpose of paragraphs (d), (f) and (g) of this article, guarantor includes counter-guarantor.
Article 25
Reduction and termination
a. The amount payable under the guarantee shall be reduced by any amount:
b. Whether or not the guarantee document is returned to the guarantor, the guarantee shall terminate:
c. If the guarantee or the counter-guarantee states neither an expiry date nor an expiry event, the guarantee shall terminate after the lapse of three years from the date of issue and the counter-guarantee shall terminate 30 calendar days after the guarantee terminates.
d. If the expiry date of a guarantee falls on a day that is not a business day at the place for presentation of the demand, the expiry date is extended to the first following business day at that place.
e. Where, to the knowledge of the guarantor, the guarantee terminates as a result of any of the reasons indicated in paragraph (b) above, but other than because of the advent of the expiry date, the guarantor shall without delay so inform the instructing party or, where applicable, the counter-guarantor and, in that case, the counter-guarantor shall so inform the instructing party.
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Article 26
Force majeure
a. In this article, “force majeure” means acts of God, riots, civil commotions, insurrections, wars, acts of terrorism or any causes beyond the control of the guarantor or counter-guarantor that interrupt its business as it relates to acts of a kind subject to these rules.
b. Should the guarantee expire at a time when presentation or payment under that guarantee is prevented by force majeure:
c. Should the counter-guarantee expire at a time when presentation or payment under that counter-guarantee is prevented by force majeure:
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d. The instructing party shall be bound by any extension, suspension or payment under this article.
e. The guarantor and the counter-guarantor assume no further liability for the consequences of the force majeure.
Article 27
Disclaimer on effectiveness of documents
The guarantor assumes no liability or responsibility for:
a. The form, sufficiency, accuracy, genuineness, falsification, or legal effect of any signature or document presented to it;
b. The general or particular statements made in, or superimposed on, any document presented to it;
c. The description, quantity, weight, quality, condition, packing, delivery, value or existence of the goods, services or other performance or data represented by or referred to in any document presented to it; or
d. The good faith, acts, omissions, solvency, performance or standing of any person issuing or referred to in any other capacity in any document presented to it.
Article 28
Disclaimer on transmission and translation
a. The guarantor assumes no liability or responsibility for the consequences of delay, loss in transit, mutilation or other errors arising in the transmission of any document, if that document is transmitted or sent according to the requirements stated in the guarantee, or when the guarantor may have taken the initiative in the choice of the delivery service in the absence of instructions to that effect.
b. The guarantor assumes no liability or responsibility for errors in translation or interpretation of technical terms and may transmit all or part of the guarantee text without translating it.
Article 29
Disclaimer for acts of another party
A guarantor using the services of another party for the purpose of giving effect to the instructions of an instructing party or counter-guarantor does so for the account and at the risk of that instructing party or counter- guarantor.
Article 30
Limits on exemption from liability
Articles 27 to 29 shall not exempt a guarantor from liability or responsibility for its failure to act in good faith.
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Article 31
Indemnity for foreign laws and usages
The instructing party or, in the case of a counter-guarantee, the counter- guarantor shall indemnify the guarantor against all obligations and responsibilities imposed by foreign laws and usages, including where those foreign laws and usages impose terms into the guarantee or the counter- guarantee that override its specified terms. The instructing party shall indemnify the counter-guarantor that has indemnified the guarantor under this article.
Article 32
Liability for charges
a. A party instructing another party to perform services under these rules is liable to pay that party’s charges for carrying out its instructions.
b. If a guarantee states that charges are for the account of the beneficiary and those charges cannot be collected, the instructing party is liable to pay those charges. If a counter-guarantee states that charges relating to the guarantee are for the account of the beneficiary and those charges cannot be collected, the counter-guarantor remains liable to the guarantor, and the instructing party to the counter-guarantor, to pay those charges.
c. Neither the guarantor nor any advising party should stipulate that the guarantee, or any advice or amendment of it, is conditional upon the receipt by the guarantor or any advising party of its charges.
Article 33
Transfer of guarantee and assignment of proceeds
a. A guarantee is transferable only if it specifically states that it is “transferable”, in which case it may be transferred more than once for the full amount available at the time of transfer. A counter-guarantee is not transferable.
b. Even if a guarantee specifically states that it is transferable, the guarantor is not obliged to give effect to a request to transfer that guarantee after its issue except to the extent and in the manner expressly consented to by the guarantor.
c. A transferable guarantee means a guarantee that may be made available by the guarantor to a new beneficiary (“transferee”) at the request of the existing beneficiary (“transferor”).
d. The following provisions apply to the transfer of a guarantee:
i. a transferred guarantee shall include all amendments to which the transferor and guarantor have agreed as of the date of transfer;
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and
ii. a guarantee can only be transferred where, in addition to the conditions stated in paragraphs (a), (b) and (d)(i) of this article, the transferor has provided a signed statement to the guarantor that the transferee has acquired the transferor’s rights and obligations in the underlying relationship.
e. Unless otherwise agreed at the time of transfer, the transferor shall pay all charges incurred for the transfer.
f. Under a transferred guarantee, a demand and any supporting statement shall be signed by the transferee. Unless the guarantee provides otherwise, the name and the signature of the transferee may be used in place of the name and signature of the transferor in any other document.
g. Whether or not the guarantee states that it is transferable, and subject to the provisions of the applicable law:
Article 34
Governing law
a. Unless otherwise provided in the guarantee, its governing law shall be that of the location of the guarantor’s branch or office that issued the guarantee.
b. Unless otherwise provided in the counter-guarantee, its governing law shall be that of the location of the counter-guarantor’s branch or office that issued the counter-guarantee.
Article 35
Jurisdiction
a. Unless otherwise provided in the guarantee, any dispute between the guarantor and the beneficiary relating to the guarantee shall be settled exclusively by the competent court of the country of the location of the guarantor’s branch or office that issued the guarantee.
b. Unless otherwise provided in the counter-guarantee, any dispute between the counter-guarantor and the guarantor relating to the counter-guarantee shall be settled exclusively by the competent court of the country of the location of the counter-guarantor’s branch or office that issued the counter-guarantee.
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Form of Demand Guarantee under URDG 758*
[Guarantor Letterhead or SWIFT identifier Code]
To: [Insert name and contact information of the Beneficiary] Date: [Insert date of issue]
- Type of guarantee: [Specify tender guarantee, advance payment guarantee, performance guarantee, payment guarantee, retention money guarantee, warranty guarantee etc]
- Guarantee no: [Insert guarantee reference number]
- The Guarantor: [Insert name and address of place of issue, unless indicated in the letterhead]
- The Applicant: [Insert name and address]
- The Beneficiary: [Insert name and address]
- The Underlying Relationship: The Applicant’s obligation in respect of [Insert reference number or other information identifying the contract, tender conditions or other relationship between the applicant and the beneficiary on which the guarantee is based]
- Guarantee Amount and currency: [Insert in figures and words the maximum amount payable and the currency in which it is payable]
- Any document required in support of the demand for payment, apart from the supporting statement that is explicitly required in the text below: [Insert any additional document required in support of the demand for payment. If the guarantee requires no documents other than the demand and the supporting statement, keep this space empty or indicate “none”]
- Language of any required documents: [Insert the language of any required document. Documents to be issued by the applicant or the beneficiary shall be in the language of the guarantee unless otherwise indicated herein]
- Form of presentation: [Insert paper or electronic form. If paper, indicate mode of delivery. If electronic, indicate the format, the system for data delivery and the electronic address for presentation]
* The Form of Demand Guarantee and Counter-Guarantee under URDG 758 as well as the Optional Clauses proposed in the following pages are provided for guidance. They are not part of the rules.
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- Place for presentation: [Guarantor to insert address of branch where a paper Presentation is to be made or, in the case of an electronic presentation, an electronic address such as the guarantor’s swift address. If no place for presentation is indicated in this field, the guarantor’s place of issue indicated above shall be the place for presentation]
- Expiry: [Insert expiry date or describe expiry event]
- The party liable for the payment of any charges:
[Insert the name of the party]
As Guarantor, we hereby irrevocably undertake to pay the Beneficiary any amount up to the Guarantee Amount upon presentation of the Beneficiary’s complying demand, in the form of presentation indicated above, supported by such other documents as may be listed above and in any event by the Beneficiary’s statement, whether in the demand itself or in a separate signed document accompanying or identifying the demand, indicating in what respect the Applicant is in breach of its obligations under the Underlying Relationship.
Any demand under this guarantee must be received by us on or before Expiry at the Place for presentation indicated above.
This guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010 Revision, ICC Publication No. 758.
Signature(s)
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Optional clauses to be inserted in the Form of Demand Guarantee
- Time as from which a demand can be presented if different from the date of issue:
A demand under this guarantee may be presented as from [indicate date or event, e.g.:
- The crediting of [insert currency and exact amount to be received as advance payment] to the applicant’s account [indicate account number] maintained with the guarantor, provided such remittance identifies the guarantee to which it relates;
- The receipt by the guarantor of [insert currency and exact amount to be received as advance payment] for further credit to the applicant’s account [indicate account number] maintained with the guarantor, provided such remittance identifies the guarantee to which it relates;*or
- The presentation to the guarantor of a statement stating [the release of the tender guarantee] [the issue of a documentary credit fulfilling the following terms: indicate amount, issuing or confirming party and goods/services description] or [the entry into effect of the underlying contract].]
- Variation of amount clause:
✻ The Guarantee Amount will be reduced by [insert percentage of Guarantee Amount or exact amount and currency] upon [choose one or more of the options below:
- Presentation to the Guarantor of the following document(s): [insert list of documents];
- In the case of an index specified in the guarantee as triggering reduction [insert index figure triggering the reduction in the Guarantee Amount]; or
- (In the case of a payment guarantee): the remittance of [insert exact amount and currency] to the beneficiary’s account [indicate account number] held with the guarantor, provided the record of such remittance enables the guarantor to identify the guarantee to which it relates (for example, by referring to the guarantee’s reference number).]
✻ The Guarantee Amount will be increased by [insert percentage or exact amount and currency] upon [choose one or more of the options below:
- Presentation to the Guarantor of the following document(s):[insert list of documents];
- Presentation to the Guarantor of the Applicant’s statement stating that the underlying contract was amended to increase the scope
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or value of the works and specifying the amount and currency of the new value; or
- In the case of an index specified in the guarantee as triggering increase [insert index figure triggering increase in the Guarantee Amount].]
- Sample terms for article 15(a)’s supporting statement to be provided by the beneficiary:
✻ In the case of a tender guarantee, the supporting statement could state: The Applicant:
- Has withdrawn its offer during the tender period, or
- While it was declared the successful bidder, the Applicant did not sign the contract corresponding to its offer and/or failed to provide the guarantee(s) requested in the call for tenders.
✻ In the case of a performance guarantee, the supporting statement could state:
The Applicant is in breach of its obligations with respect to the underlying relationship because [of late delivery] [the contract’s performance was not completed by the due date] [there was a shortfall in the quantity of the goods supplied under the contract] [the delivered works are defective] etc.
✻ In the case of a payment guarantee, the supporting statement could state:
The Applicant has not fulfilled its contractual payment obligations.
✻ Supporting statements required under other types of guarantees (advance payment, retention money, delivery, warranty, maintenance, etc.) are likewise expected to be general in their drafting without the need for the beneficiary to substantiate its claim or to provide meticulous technical detail of the breach absent an express requirement in the guarantee itself.
✻ This suggested operativeness/entry into effect clause, like the one in the bullet immediately preceding it, is frequently used in advance payment and retention money guarantees. In both cases, the clause ensures that the guarantee is not available for drawdown before the amount due by the beneficiary under the underlying contract is paid to the applicant. There are two ways to draft this clause. The first one, reflected in the first bullet, is to consider the guarantee operative only when the amount is effectively credited to the applicant’s account. This leaves the beneficiary/payor with the risks of errors in credit transfers or third party attachments. Another way to draft this type of clause, reflected in the second bullet, considers the beneficiary’s obligations as satisfied when the payment is received by the guarantor holding the applicant’s account. Any delay in crediting that payment to the applicant’s account is left to be sorted out between the applicant and the guarantor according to the bank-customer relationship agreement or rules of law.
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Form of counter-guarantee under URDG 758
[Counter-guarantor Letterhead or SWIFT identifier Code] To: [Insert name and contact information of Guarantor] Date: [Insert date of issue]
Please issue under our responsibility in favour of the Beneficiary your guarantee in the following wording:
[Quote the following Form of Demand Guarantee under URDG 758, provide brief details of the guarantee or use your own guarantee text as appropriate]
- Type of guarantee: [Specify tender guarantee, advance payment guarantee, performance guarantee, payment guarantee, retention money guarantee, warranty guarantee, etc.]
- Guarantee No. [Guarantor to insert guarantee reference number]
- The Guarantor: [Guarantor to insert name and address of place of issue, unless indicated in the addressee field above]
- Place for presentation: [Guarantor to insert address of branch where a paper presentation is to be made or, in the case of an electronic presentation, an electronic address such as the Guarantor’s SWIFT address. If no Place for presentation is indicated in this field, the Guarantor’s place of issue indicated above shall be the Place for presentation]
- Expiry of Guarantee: [Insert expiry date or describe expiry event]
- The party liable for the payment of any charges: [Insert the name of the party]
As Guarantor, we hereby irrevocably undertake to pay the Beneficiary any amount up to the Guarantee Amount upon presentation of the Beneficiary’s complying demand, in the form of presentation indicated
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any event by the Beneficiary’s statement, whether in the demand itself or in a separate signed document accompanying or identifying the demand, indicating in what respect the Applicant is in breach of its obligations under the Underlying Relationship.
Any demand under this Guarantee must be received by us on or before Expiry at the Place for presentation indicated above.
This Guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010 revision, ICC Publication No. 758.
[unquote]
As Counter-guarantor, we hereby irrevocably undertake to pay the Guarantor any amount up to the Counter-guarantee Amount indicated below upon presentation of the Guarantor’s complying demand, in the form of presentation indicated below, supported by the Guarantor’s statement, whether in the demand itself or in a separate signed document accompanying or identifying the demand, indicating that the Guarantor has received a complying demand under the guarantee.
Any demand under this Counter-guarantee must be received by us on or before Expiry of this Counter-guarantee at the place for presentation indicated below.
- Counter-guarantee No: [ Insert counter-guarantee reference number]
- The Counter-guarantor: [Insert name and address of place of issue, unless indicated in the letterhead]
- The Guarantor: [Insert name and address of Guarantor and place of issue of guarantee]
- Counter-guarantee Amount and currency: [Insert in figures and words the maximum amount payable and the currency in which it is payable]
- Place for presentation: [Counter-guarantor to insert address of branch where a paper presentation is to be made or, in the case of an electronic presentation, an electronic address such as the counter-guarantor’s SWIFT address. If no Place for presentation is indicated in this field, the Counter-guarantor’s place of issue indicated above shall be the Place for presentation]
- Expiry of counter-guarantee: [Insert expiry date or describe expiry event. Note that the expiry of the counter- guarantee is generally scheduled to occur later than the expiry of the guarantee to include a mailing period]
- The party liable for the payment of any charges: [Insert the name of the party, generally the counter-guarantor]
The Guarantor is requested to confirm to the Counter-guarantor the issuance of the guarantee.
This Counter-guarantee is subject to the Uniform Rules for Demand Guarantees (URDG) 2010 revision, ICC Publication No. 758.