Parties

Initiator Bank S

Respondent: Bank N

Background

Initiator submitted the following documents to ICC Dispute Resolution Services:

• Copy of letter of credit I/123456/LC/718 issued by the Respondent on 26.09.2008 available with the Initiator, and confirmed by it as per request in the L/C;

• Copy of amendment ;

• Letter from the Initiator to the Respondent dated 23.6.2009 regarding presentation of documents, certifying that all terms and conditions have been complied with and were presented within credit validity;

• Copy SWIFT message MT799 sent by the Respondent to Initiator dated 25.6.2009 requesting the Initiator to inform the beneficiary that the documents will be returned without honouring by the Respondent due to discrepancies;

• Copy CMR, ref 10512390;

• Copy CMR, ref 10512484;

• Copy CMR, ref 10512481;

• Copy CMR, ref 1876/810/0010/001;

• Copy CMR, ref 1876/810/0011/001;

• Copy CMR, ref 1876/810/0017/001;

• Copy CMR, ref 1876/810/0087/001;

• Copy Acceptance Certificate dated 12.06.2009;

• Copy letter from applicants to Initiator dated 11.06.2009.

Issues

The Initiator, as nominated and confirming bank, has received a presentation from the beneficiary and determined that it was in compliance with the terms and conditions of the letter of credit. The Initiator presented the documents to the Respondent, the issuing bank, which determined, after checking the documents, that the presentation was not in compliance with the terms and conditions of the credit based on discrepancies (as per their MT799 dated 25.6.2009) and returned the documents, not honouring the presentation.

The discrepancies:

1) Terms of delivery neither as part of goods description nor separately are indicated in any CMR document;

2) CMR under reference no. 10512390 seems to be issued on 27.1.2008, which is in conflict with other data in this document;

3) Authentications of corrections are not properly made on each CMR except no's 10512484, 10512481, 10512390, where due to numerous corrections [it] is impossible to determine whether all corrections were duly authenticated by the agent of the carrier;

4) Concerning Act of Commissioning of equipment (acceptance certificate): Document is issued in two languages (Russian and English) which is in conflict with L/C terms.

Analysis
Discrepancy no. 1
As the L/C is not prescribing that the terms of delivery must be mentioned on the CMR, these documents are not discrepant in this respect (UCP 600 sub-article 14 (e) refers).

Discrepancy no.2
Although one of the stated dates of issuance reads 27.1.2008, it appears from the document itself that this must be a typographical error as the dates mentioned otherwise in the document clearly evidenced that the merchandise has been taken over from the beneficiary, by the carrier, on 27.10.2008. (amongst others, the goods description on the document is referring to amendment no. 2 dated 11.7.2008 and amendment no 3. dated 03.09.2008). Furthermore, the original issuance date appearing under one of the correction stamps can be seen as "27.10.2008", which further establishes the fact that this is indeed a typographical error.

Therefore, this document is not discrepant in this respect.

Discrepancy no. 3
In respect of the request in the L/C for a photocopy, ISBP paragraph 167 applies: "Copies of UCP article 24 transport documents do not need to include any signature on, or authentication of, any alterations or corrections that may have been made on the original."

Therefore, these documents are not discrepant in this respect.

Discrepancy no. 4
The document is fully bi-lingual (issued in Russian and English, all details being in both languages). Reference is to be made to ICC official Opinion R451 - 2000/01: "A requirement for a document to be issued in a specific language does not prohibit other languages or dual languages being used, provided the information requested by the credit is clearly indicated in the requested language."

Therefore, this document is not discrepant in this respect.

Conclusion
None of the alleged discrepancies as stated in the Respondent's refusal notice is valid. Hence, the presentation dated 23.06.2009 amounting to EUR 4,322,701.83 payable under payment term 46A point A and B of credit no. I/123456/LC/718 issued by the Respondent must be considered to constitute a compliant presentation, in accordance with the terms and conditions of the L/C issued under UCP 600, and therefore the issuing bank would be expected to honour this presentation in accordance with article 7 of UCP 600.

This Decision is a unanimous Decision of the Panel.