Where an exporter presents compliant documents, and does not require value, as he does not want to incur interest for any delay in reimbursement.
And subsequently the documents were refused for valid discrepancies at the issuing banks counter, and refused by the Applicant.
Does the beneficiary have a right to claim on the negotiating bank.
As per article 10b Negotiation would mean giving of value, as such can the negotiating bank refuse such claim.
[edited 1/27/01 4:16:50 AM]
Negotiation - Liability of Banks not giving value
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RoomiNizar
- Posts: 2
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AbdulkaderBazara
- Posts: 256
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Negotiation - Liability of Banks not giving value
The beneficiary has no right whatsoever to claim payment on a discrepant document. The fact that the bank authorized to negotiate the documents did not point out the discrepancies does not make it liable to reimburse the beneficiary.
Negotiation - Liability of Banks not giving value
As an LC consultant firm and court expert witness firm involved in many negotiation dispute cases, we do not have a straightforward answer to this query.
If the negotiating bank is a confirming bank, then according to sub article 9 (b) (iv) of UCP 500, there is no recourse to the beneficiary.
If the negotiating bank is not a confirming bank, then recourse would depend on many scenarios.
For example, is the discrepancy missed by the negotiating bank a valid one? A banker's view and a court's view may be different, such as reflected in the Santander case on discounting a deferred payment credit before payment maturity in a fraud situation.
It also depends on the terms and conditions in the service agreement made between the bank and its customer regarding negotiation and recourse.
There is no "one size to fit all" answer to this recourse query. On many occasions, world class LC experts may have different opinions on this issue, particularly that some are from banks and some are from the legal or academic profession.
I am from www.tolee.com
[edited 5/22/01 3:20:51 PM]
[edited 10/28/01 12:29:56 AM]
If the negotiating bank is a confirming bank, then according to sub article 9 (b) (iv) of UCP 500, there is no recourse to the beneficiary.
If the negotiating bank is not a confirming bank, then recourse would depend on many scenarios.
For example, is the discrepancy missed by the negotiating bank a valid one? A banker's view and a court's view may be different, such as reflected in the Santander case on discounting a deferred payment credit before payment maturity in a fraud situation.
It also depends on the terms and conditions in the service agreement made between the bank and its customer regarding negotiation and recourse.
There is no "one size to fit all" answer to this recourse query. On many occasions, world class LC experts may have different opinions on this issue, particularly that some are from banks and some are from the legal or academic profession.
I am from www.tolee.com
[edited 5/22/01 3:20:51 PM]
[edited 10/28/01 12:29:56 AM]
Negotiation - Liability of Banks not giving value
I believe that it actually cannot happen in practice as described above:
“An exporter presents compliant documents, ………………………and subsequently the documents were refused for valid discrepancies at the issuing banks counter, and refused by the Applicant. If documents are complying they cannot be refused for valid discrepancies by somebody else.
Pavel Andrle
“An exporter presents compliant documents, ………………………and subsequently the documents were refused for valid discrepancies at the issuing banks counter, and refused by the Applicant. If documents are complying they cannot be refused for valid discrepancies by somebody else.
Pavel Andrle
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hatemshehab
- Posts: 220
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Negotiation - Liability of Banks not giving value
If the beneficiary presented his documents to the negotiating bank for negotiation then “giving value” might be expressed in different ways other that the word value itself.
The negotiating bank may state that all terms and conditions are complied with. To my understating this is “giving value”. Therefore, the bank should pay the beneficiary the amount of the documents, however since the beneficiary did not want payment to be effected (which is very strange) the payment is held in abeyance pending the coverage of funds by the issuing bank of course after ascertaining of the compliance of the documents by that bank. In this situation the beneficiary has surrendered the fate of documents to the issuing bank and therefore the negotiating bank is not liable to pay unless a green light from the issuing bank is forthcoming. According to this scenario this is a meaningless negotiation.
Now let me tell you something. Some banks although nominate a bank to negotiate the documents presented under the L/C but at the same time insert a condition that “payment will be effected four working days upon receiving the documents at our counters which comply with all terms and condition of the L/C”
The distinction of the position of the negotiating bank as a confirming bank or not and the recourse issue raised by Mr. Lee is perfectly sound.
If the negotiating bank is a confirming bank, the as per above scenario the negotiating bank is liable to pay to the beneficiary since it did not raise any discrepancy in documents. If discrepancies are raised by the issuing bank then the confirming bank is stuck. He has to pay to the beneficiary and cannot get reimbursement from the issuing bank.
The negotiating bank may state that all terms and conditions are complied with. To my understating this is “giving value”. Therefore, the bank should pay the beneficiary the amount of the documents, however since the beneficiary did not want payment to be effected (which is very strange) the payment is held in abeyance pending the coverage of funds by the issuing bank of course after ascertaining of the compliance of the documents by that bank. In this situation the beneficiary has surrendered the fate of documents to the issuing bank and therefore the negotiating bank is not liable to pay unless a green light from the issuing bank is forthcoming. According to this scenario this is a meaningless negotiation.
Now let me tell you something. Some banks although nominate a bank to negotiate the documents presented under the L/C but at the same time insert a condition that “payment will be effected four working days upon receiving the documents at our counters which comply with all terms and condition of the L/C”
The distinction of the position of the negotiating bank as a confirming bank or not and the recourse issue raised by Mr. Lee is perfectly sound.
If the negotiating bank is a confirming bank, the as per above scenario the negotiating bank is liable to pay to the beneficiary since it did not raise any discrepancy in documents. If discrepancies are raised by the issuing bank then the confirming bank is stuck. He has to pay to the beneficiary and cannot get reimbursement from the issuing bank.
Negotiation - Liability of Banks not giving value
I dare to disagree with this statement:
“The negotiating bank may state that all terms and conditions are complied with. To my understating this is “giving value”.
Giving value (in L/C context)– i.e. to negotiate means to pay or to undertake an obligation to pay (different to deferred payment undertaking) – I suppose that Position paper No. 2 might help.
Pavel Andrle
[edited 9/5/01 7:02:49 PM]
[edited 9/5/01 7:05:01 PM]
“The negotiating bank may state that all terms and conditions are complied with. To my understating this is “giving value”.
Giving value (in L/C context)– i.e. to negotiate means to pay or to undertake an obligation to pay (different to deferred payment undertaking) – I suppose that Position paper No. 2 might help.
Pavel Andrle
[edited 9/5/01 7:02:49 PM]
[edited 9/5/01 7:05:01 PM]
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hatemshehab
- Posts: 220
- Joined: Fri Apr 05, 2019 5:19 pm
Negotiation - Liability of Banks not giving value
Of course I understand that mere examination of documents is not negotiation.
If the negotiating bank upon the surrender of documents by the beneficiary has found that they are in order and no discrepancy was detected whatsoever, then what is the next step?
The next step is that the negotiating bank has two options whether to pay immediately or to pay at a later stage; to undertake to pay. Which in effect means that it is akin to purchase. If we take the first choice the negotiating bank is ready to pay however and surprisingly the beneficiary does not want that payment to be effected until such time the negotiating bank is reimbursed in due time, then this type of credit is useless to the beneficiary. This situation is unlikely to happen in case of confirmed L/Cs available for payment by negotiation, because it would be strange to have a confirmed L/C at the disposal of the beneficiary and at the same time the beneficiary is refusing immediate payment. It might happen under unconfirmed credits.
If the negotiating bank has stated to beneficiary that DOCUMENTS ARE IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE L/C” what does this statement amount to? Doesn’t it mean that the negotiating bank is ready to pay or to undertake to pay? Now I should draw your attention that this willingness might be qualified with something else, payment WITH RECOURSE or WITHOUT RECOURSE. If the negotiating bank is willing to effect payment with recourse that’s up to him. But what if we have this scenario. The negotiating bank being (un-confirming bank) effected payment to the beneficiary without stating that it retains the right of recourse to the beneficiary in case of dishonour due to any discrepancies raised by the issuing bank, then what will be the position of the negotiating bank before the beneficiary should the documents be rejected by the issuing bank?
What exactly do you expect the negotiating bank to do? Do you really want the negotiating bank to "give value" (whatever this may mean) and not just examine documents and then ask for reimbursement? He has done so, he examined and acknowledged in its full awareness and discretion that documents are in order. If the bank does not want to bind itself he should so communicate to the beneficiary that payment will be effected only upon receipt of funds from the issuing bankand that this statement should not be construed as negotiation.
Some banks indicate this statement "DOCUMENTS ARE IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE L/C AND DOCUMENTS VALUE HAS BEEN ENDORSED ON THE REVERSE SIDE OF THE L/C” isn’t this giving value?
If the negotiating bank upon the surrender of documents by the beneficiary has found that they are in order and no discrepancy was detected whatsoever, then what is the next step?
The next step is that the negotiating bank has two options whether to pay immediately or to pay at a later stage; to undertake to pay. Which in effect means that it is akin to purchase. If we take the first choice the negotiating bank is ready to pay however and surprisingly the beneficiary does not want that payment to be effected until such time the negotiating bank is reimbursed in due time, then this type of credit is useless to the beneficiary. This situation is unlikely to happen in case of confirmed L/Cs available for payment by negotiation, because it would be strange to have a confirmed L/C at the disposal of the beneficiary and at the same time the beneficiary is refusing immediate payment. It might happen under unconfirmed credits.
If the negotiating bank has stated to beneficiary that DOCUMENTS ARE IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE L/C” what does this statement amount to? Doesn’t it mean that the negotiating bank is ready to pay or to undertake to pay? Now I should draw your attention that this willingness might be qualified with something else, payment WITH RECOURSE or WITHOUT RECOURSE. If the negotiating bank is willing to effect payment with recourse that’s up to him. But what if we have this scenario. The negotiating bank being (un-confirming bank) effected payment to the beneficiary without stating that it retains the right of recourse to the beneficiary in case of dishonour due to any discrepancies raised by the issuing bank, then what will be the position of the negotiating bank before the beneficiary should the documents be rejected by the issuing bank?
What exactly do you expect the negotiating bank to do? Do you really want the negotiating bank to "give value" (whatever this may mean) and not just examine documents and then ask for reimbursement? He has done so, he examined and acknowledged in its full awareness and discretion that documents are in order. If the bank does not want to bind itself he should so communicate to the beneficiary that payment will be effected only upon receipt of funds from the issuing bankand that this statement should not be construed as negotiation.
Some banks indicate this statement "DOCUMENTS ARE IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE L/C AND DOCUMENTS VALUE HAS BEEN ENDORSED ON THE REVERSE SIDE OF THE L/C” isn’t this giving value?
Negotiation - Liability of Banks not giving value
This discussion has been left with an unanswered question. Therefore, in the absence of any other major discussions in the forum, I thought I would add my own strictly personal views.
1. Negotiation is a subject about which there seems to be quite a lot of misunderstanding. I believe an illustration of this is the two articles on the subject in the last Insight. My own thinking on the subject has changed over the years and may well change again.
2. Before turning to the meaning of ‘negotiation’ or ‘giving value’, I believe one must first start with sub-Article 10c. It states:
‘Except where expressly agreed to by the Nominated Bank and so communicated to the Beneficiary, the Nominated Bank's receipt of and/or examination and/or forwarding of the documents does not make that bank liable to pay, to incur a deferred payment undertaking, to accept Draft(s), or to negotiate.’
Therefore, to me this sub-Article seems to draw a distinction between ‘examination and/or forwarding of the documents’ and ‘negotiation’. However, while the sub-Article covers ‘examination’ and ‘forwarding’, it does not EXPRESSLY cover advising the beneficiary that the documents are compliant. I take the view that IF one believes that advising the beneficiary of compliance of the documents is covered by the term ‘examination’ (possibly in conjunction the term ‘forwarding’) then -BASED ON UCP500- the expression ‘negotiation’ (and thus ‘giving value) cannot, by definition, be taken to cover checking documents and advising the beneficiary of their compliance, irrespective of any apparent value given.
3. IF one does not take the view that advising the beneficiary of (non-) compliance of the documents is covered by the term ‘examination’, the question then is: ‘what does ‘negotiation’/‘giving value’ mean IN THE CONTEXT OF CREDIT OPERATIONS’? To me the answer must be a product of the jurisdiction’s law that is applicable, and thus the answer is by no means certain. However, I would have thought that the further away a bank’s acts are from paying the face value of the bill/documents (less any interest etc charge), the greater the risk that a court will not consider that act ‘giving value’.
4. Then there is the question of Position Paper No. 2 which states that ‘giving of value’ ‘may be interpreted as either ‘making immediate payment’ or ‘undertaking an obligation to make payment’ (other than …… etc)’. It is quite possible that a court may decide that it is not a correct interpretation of UCP500. However, as I believe I recall a leading British barrister in the ‘trade finance’ field saying, with regard to an unrelated ICC ‘Decision’, ‘it would be a brave court that ignored it’. Therefore, I believe that challenging Position Paper No. 2 in a court of law would be a very risky strategy, particularly if it is still considered by the ICC as an ‘official’ ICC document (& I do not have any reason to believe that it is not).
5. In sum, it seems to me that any bank that claims that is has ‘negotiated’ documents, where it has not fulfilled the requirements of at least Position Paper No. 2 is leaving itself open to strong challenge.
6. Based on Position Paper No. 2, if a beneficiary wants the documents ‘negotiated’, but does not want to pay any interest, the only option is for them to accept the nominated bank’s undertaking to make payment (which must not be in the form of a deferred pay’t undertaking or involve the acceptance of a bill), assuming the nominated bank is prepared to give this. Incidentally, in the case of a confirmed credit, I do not see how the confirming bank could refuse this, unless they had modified their confirmation at the time of giving it.
7. Another issue is whether remitting the face value of the documents ‘with recourse’ (whatever that may mean) is ‘making immediate payment’. I have certainly seen the view expressed by some U.S. commentators that it is not. I would personally not support these commentators, but cannot claim to be 100% confident on the subject.
8. Turning to day-to-day practice, I would have thought that a nominated bank would first decide whether it was prepared to negotiate documents, and -if so- on what basis, before checking them, or at least before advising the beneficiary of their (non-) compliance. This is because of the general risk that where:
A. A bank advises the beneficiary that documents are compliant (or non-compliant and the beneficiary rectifies the supposed discrepancies) without effecting settlement, and;
B. Settlement is not received by the beneficiary from the issuing bank because the issuing believes them to be discrepant;
the beneficiary may sue the checking bank for damages based on the checking bank’s negligence, unless the checking bank made clear (in a provable manner) at the time that its check was carried out without any responsibility on its part.
Incidentally, I have not searched for an ‘Opinions’ on the subject.
If anyone has any reactions/further thoughts, I would be happy to try to respond to them (time permitting).
1. Negotiation is a subject about which there seems to be quite a lot of misunderstanding. I believe an illustration of this is the two articles on the subject in the last Insight. My own thinking on the subject has changed over the years and may well change again.
2. Before turning to the meaning of ‘negotiation’ or ‘giving value’, I believe one must first start with sub-Article 10c. It states:
‘Except where expressly agreed to by the Nominated Bank and so communicated to the Beneficiary, the Nominated Bank's receipt of and/or examination and/or forwarding of the documents does not make that bank liable to pay, to incur a deferred payment undertaking, to accept Draft(s), or to negotiate.’
Therefore, to me this sub-Article seems to draw a distinction between ‘examination and/or forwarding of the documents’ and ‘negotiation’. However, while the sub-Article covers ‘examination’ and ‘forwarding’, it does not EXPRESSLY cover advising the beneficiary that the documents are compliant. I take the view that IF one believes that advising the beneficiary of compliance of the documents is covered by the term ‘examination’ (possibly in conjunction the term ‘forwarding’) then -BASED ON UCP500- the expression ‘negotiation’ (and thus ‘giving value) cannot, by definition, be taken to cover checking documents and advising the beneficiary of their compliance, irrespective of any apparent value given.
3. IF one does not take the view that advising the beneficiary of (non-) compliance of the documents is covered by the term ‘examination’, the question then is: ‘what does ‘negotiation’/‘giving value’ mean IN THE CONTEXT OF CREDIT OPERATIONS’? To me the answer must be a product of the jurisdiction’s law that is applicable, and thus the answer is by no means certain. However, I would have thought that the further away a bank’s acts are from paying the face value of the bill/documents (less any interest etc charge), the greater the risk that a court will not consider that act ‘giving value’.
4. Then there is the question of Position Paper No. 2 which states that ‘giving of value’ ‘may be interpreted as either ‘making immediate payment’ or ‘undertaking an obligation to make payment’ (other than …… etc)’. It is quite possible that a court may decide that it is not a correct interpretation of UCP500. However, as I believe I recall a leading British barrister in the ‘trade finance’ field saying, with regard to an unrelated ICC ‘Decision’, ‘it would be a brave court that ignored it’. Therefore, I believe that challenging Position Paper No. 2 in a court of law would be a very risky strategy, particularly if it is still considered by the ICC as an ‘official’ ICC document (& I do not have any reason to believe that it is not).
5. In sum, it seems to me that any bank that claims that is has ‘negotiated’ documents, where it has not fulfilled the requirements of at least Position Paper No. 2 is leaving itself open to strong challenge.
6. Based on Position Paper No. 2, if a beneficiary wants the documents ‘negotiated’, but does not want to pay any interest, the only option is for them to accept the nominated bank’s undertaking to make payment (which must not be in the form of a deferred pay’t undertaking or involve the acceptance of a bill), assuming the nominated bank is prepared to give this. Incidentally, in the case of a confirmed credit, I do not see how the confirming bank could refuse this, unless they had modified their confirmation at the time of giving it.
7. Another issue is whether remitting the face value of the documents ‘with recourse’ (whatever that may mean) is ‘making immediate payment’. I have certainly seen the view expressed by some U.S. commentators that it is not. I would personally not support these commentators, but cannot claim to be 100% confident on the subject.
8. Turning to day-to-day practice, I would have thought that a nominated bank would first decide whether it was prepared to negotiate documents, and -if so- on what basis, before checking them, or at least before advising the beneficiary of their (non-) compliance. This is because of the general risk that where:
A. A bank advises the beneficiary that documents are compliant (or non-compliant and the beneficiary rectifies the supposed discrepancies) without effecting settlement, and;
B. Settlement is not received by the beneficiary from the issuing bank because the issuing believes them to be discrepant;
the beneficiary may sue the checking bank for damages based on the checking bank’s negligence, unless the checking bank made clear (in a provable manner) at the time that its check was carried out without any responsibility on its part.
Incidentally, I have not searched for an ‘Opinions’ on the subject.
If anyone has any reactions/further thoughts, I would be happy to try to respond to them (time permitting).
Negotiation - Liability of Banks not giving value
EAT AN ELEPHANT BY SMALL PIECES
Negotiation is a very complex subject, more related to law than the UCP, and hence we have to "eat an elephant in small pieces at a time", as we are told in time management courses.
ARTICLE 10 (C) DEALS WITH PAYMENT OBLIGATION ONLY AND NOT WITH NEGLIGENCE
Jeremy quotes Article 10 (c) of the UCP 500 that a nominated bank is not liable to negotiate, accept or pay merely by the receipt, examination or forwarding of the documents.
This sub Article only deals with a nominated bank's obligation (NO OBLIGATION) to PAY, ACCEPT OR NEGOTIATE consequential to its receipt, examination or forwarding of the documents. It does not deals with the LIABILITY of the nominated bank's NEGLIGENCE in missing a valid discrepancy.
MERE EXAMINATION ALONE MAY GIVE FOUR DIFFERENT SCENARIOS
From our consultancy experience, the following scenarios may give rise to different answers to the same question:
(1) Whether the nominated bank has a duty to examine the documents or not, such as it has declined negotiation, acceptance or payment but requested by its customer to do the examination?
(2) Under such situation, does the nominated bank charge a fee for its examination work or not?
(3) What about if the bank that is requested to examine the documents is not a nominated bank, but merely an advising bank where the beneficiary is its own customer?
(4) If it does not charge for a fee for examination but the beneficiary's lawyer sees this as within the package of its banking services?
COMPLEX PERMUTATION DUE TO COMPLEX SCENARIOS
So from our involvements in resolving DC negotiation disputes, merely on the issue of "the consequence of a bank due to missing a valid discrepancy", it may have four different scenarios that may affect our answer.
If these four scenarios are multiplied by other issues or scenarios, we may have a very complex permutation of scenarios. We have to draw a complex "yes" and "no" flowchart in our decision making process.
That is the reason why in our first response to this same query early on, we do not give any definite answer.
JEREMY, THIS IS TOO BIG AN ELEPHANT FOR YOU AND FOR US
Jeremy, this is not an issue that you may give a "one size to fit all" answer. If you try to eat this elephant, you may need to take a long holiday from your Lloyd's Bank and to move to a small house near the beach in a desserted island in Thailand, Malaysia or Indonesia.
Of course, you should not bring your girl friend, even if you have one. You need not give a response to this proposition, as a friend of your better half may be also a member of the DC Pro.
http://www.tolee.com
[edited 9/20/01 3:56:47 PM]
Negotiation is a very complex subject, more related to law than the UCP, and hence we have to "eat an elephant in small pieces at a time", as we are told in time management courses.
ARTICLE 10 (C) DEALS WITH PAYMENT OBLIGATION ONLY AND NOT WITH NEGLIGENCE
Jeremy quotes Article 10 (c) of the UCP 500 that a nominated bank is not liable to negotiate, accept or pay merely by the receipt, examination or forwarding of the documents.
This sub Article only deals with a nominated bank's obligation (NO OBLIGATION) to PAY, ACCEPT OR NEGOTIATE consequential to its receipt, examination or forwarding of the documents. It does not deals with the LIABILITY of the nominated bank's NEGLIGENCE in missing a valid discrepancy.
MERE EXAMINATION ALONE MAY GIVE FOUR DIFFERENT SCENARIOS
From our consultancy experience, the following scenarios may give rise to different answers to the same question:
(1) Whether the nominated bank has a duty to examine the documents or not, such as it has declined negotiation, acceptance or payment but requested by its customer to do the examination?
(2) Under such situation, does the nominated bank charge a fee for its examination work or not?
(3) What about if the bank that is requested to examine the documents is not a nominated bank, but merely an advising bank where the beneficiary is its own customer?
(4) If it does not charge for a fee for examination but the beneficiary's lawyer sees this as within the package of its banking services?
COMPLEX PERMUTATION DUE TO COMPLEX SCENARIOS
So from our involvements in resolving DC negotiation disputes, merely on the issue of "the consequence of a bank due to missing a valid discrepancy", it may have four different scenarios that may affect our answer.
If these four scenarios are multiplied by other issues or scenarios, we may have a very complex permutation of scenarios. We have to draw a complex "yes" and "no" flowchart in our decision making process.
That is the reason why in our first response to this same query early on, we do not give any definite answer.
JEREMY, THIS IS TOO BIG AN ELEPHANT FOR YOU AND FOR US
Jeremy, this is not an issue that you may give a "one size to fit all" answer. If you try to eat this elephant, you may need to take a long holiday from your Lloyd's Bank and to move to a small house near the beach in a desserted island in Thailand, Malaysia or Indonesia.
Of course, you should not bring your girl friend, even if you have one. You need not give a response to this proposition, as a friend of your better half may be also a member of the DC Pro.
http://www.tolee.com
[edited 9/20/01 3:56:47 PM]
Negotiation - Liability of Banks not giving value
T.O.,
Sub-Article 10c does not, indeed, deal with the liability of any bank's possible negligence in missing a valid discrepancy.
If asked (!), my answers to your numbered questions would be:
(1) No.
(2) Not if it wants to increase the risk of being sued for negligence.
(3) It does not have a duty, but might -for example- exceptionally agree to do so without any responsibility on its part.
(4) See 3 above.
I am now off to Bali, and I’m really looking forward to that elephant. However, my girlfriend’s not very happy with you and wonders if this is an example of Newtonian principles in action.
Jeremy.
[edited 9/20/01 5:38:44 PM]
Sub-Article 10c does not, indeed, deal with the liability of any bank's possible negligence in missing a valid discrepancy.
If asked (!), my answers to your numbered questions would be:
(1) No.
(2) Not if it wants to increase the risk of being sued for negligence.
(3) It does not have a duty, but might -for example- exceptionally agree to do so without any responsibility on its part.
(4) See 3 above.
I am now off to Bali, and I’m really looking forward to that elephant. However, my girlfriend’s not very happy with you and wonders if this is an example of Newtonian principles in action.
Jeremy.
[edited 9/20/01 5:38:44 PM]