Article 35

jsheehan · Post by **jsheehan** » Fri Oct 01, 2010 1:00 am

We are the beneficiary of an LC issued by a bank in Singapore which we are trying to have confirmed in the US. The issuing bank is saying "the issuing bank shall be entitled to require the nominated bank to send copies of all the documents presented under the credit and which the nominated bank has determined to be a complying presentation, were the documents thus determined to be complying lost in transit after being sent by the nominated bank. The issuing bank should be entitled to examine the copies of the documents to determine if they comply with the terms of the credit (except for the question of originality) and to refuse reimbursement to the nominated bank should the issuing bank determine that the documents do not comply with the terms of the credit. Article 35, to the extent that it is inconsistent with the foregoing, is expressly excluded". The nominated bank is ok with the above condition except for "Article 35...is expressly excluded". The nominated bank has requested the issuing bank to delete "Article 35..." and begin the clause with "in conjunction with Article 35 of UCP 600, the issuing bank shall be entitled..."
Wondering if anyone has experience with this clause.

Thanks for your input.

NigelHolt · Post by **NigelHolt** » Sat Oct 02, 2010 1:00 am

Clearly some literalist has read Article 1 and is trying to ensure s/he ‘expressly modif[ies] or exclude’ Article 35. Unfortunately s/he gone for the wrong word, ‘exlude’ rather than ‘modify’. Thus, my sympathies lie with the nominated bank. What the final sentence should say is something like :

‘Article 35, to the extent that it is inconsistent with the foregoing, is accordingly MODIFIED."
[edited 10/2/2010 10:27:17 AM]

GlennRansier_ · Post by **GlennRansier_** » Mon Oct 04, 2010 1:00 am

ICC opinions of late are generally mandating that the article number be mentioned. To the extent that the LC states: "Article 35, to the extent that it is inconsistent with the foregoing, is expressly excluded" is a clear referenced that they are modifing the article. Each bank and beneficiary must make its own business decision as to what they will accept.

NigelHolt · Post by **NigelHolt** » Tue Oct 05, 2010 1:00 am

Ah, the 'ever reliable' ICC opinion.