I understand that at Paris last week it came out that the last sentence in par. 187 causes many problems to insurers (i.e. insurers are not prepared to undertake a joint liability for other co-insurer and are therefore unable to issue insurance documents as per par.187). As a result the 'Banking Commission' has decided to amend this sentence within the next few weeks and will publish the result on the ICC website, after having also consulted the insurance industry.
Any one able to confirm and shed any further light on this? Sounds like we could be faced with yet another 'Banking Commission' cock up to add to the already long list? (Not that this is the only serious problem with Pub 645.)
[edited 5/27/03 10:42:34 AM]
PARA 187
PARA 187
It was announced at the Banking Commission last week that para 187 of ISBP was going to be amended in the near future.
Once this amendment has been made the ICC intends to contact all parties involved to announce the change.
As soon as any change is made to the text DC-PRO will also let you know .
Once this amendment has been made the ICC intends to contact all parties involved to announce the change.
As soon as any change is made to the text DC-PRO will also let you know .
PARA 187
Leo,
Sounds like the answer to my 2nd 'question' is indeed 'yes'.
Jeremy
Sounds like the answer to my 2nd 'question' is indeed 'yes'.
Jeremy
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
PARA 187
Jeremy,
I think that you must put this in context. Of the 200 paragraphs in ISBP, the Banking Commission is considering changing one word in one paragraph. You may remember that I too was less than 100% happy about the drafting, but we must accept the fact that a majority voted to accept it, indicating that a majority did not spot the offending word, or did not regard it as a serious deficiency.
Laurence
I think that you must put this in context. Of the 200 paragraphs in ISBP, the Banking Commission is considering changing one word in one paragraph. You may remember that I too was less than 100% happy about the drafting, but we must accept the fact that a majority voted to accept it, indicating that a majority did not spot the offending word, or did not regard it as a serious deficiency.
Laurence
PARA 187
Laurence,
I’m afraid I do not share your overall perception. To me, this latest episode is symptomatic of problems that bedevil Banking Commission documents.
My impression is, that as has happened on a number of occasions now, the full Commission was presented with an obviously defective document, under pressure from ‘Executive Committee’/certain members thereof to adopt, which it had the choice of swallowing or rejecting with ensuing months/years of further discussion/acrimony. Therefore, the full Commission decided to swallow it. Given the plans that have apparently been ‘announced’ (by the ‘Executive Committee’?) regarding revision of the UCP I imagine the same situation will apply with the new UCP in due course.
One of the major problems I perceive with Banking Commission documents is the lack of (good, e.g. English barrister) legal input to the drafting. In his devastating critique of the sub-Article 20(b) debacle and the ICC’s reaction to it, Mark Hapgood QC said in 1999:
‘No one disputes that the UCP should be drafted in the language of bankers rather than lawyers. But lawyers are not incapable of drafting documents in commercial language. Would it not be sensible for the ICC to invite rather more legal input when the next revision is drafted?’
Unfortunately, this did not happen with Pub 645 & seems unlikely to happen with the new UCP.
Jeremy
I’m afraid I do not share your overall perception. To me, this latest episode is symptomatic of problems that bedevil Banking Commission documents.
My impression is, that as has happened on a number of occasions now, the full Commission was presented with an obviously defective document, under pressure from ‘Executive Committee’/certain members thereof to adopt, which it had the choice of swallowing or rejecting with ensuing months/years of further discussion/acrimony. Therefore, the full Commission decided to swallow it. Given the plans that have apparently been ‘announced’ (by the ‘Executive Committee’?) regarding revision of the UCP I imagine the same situation will apply with the new UCP in due course.
One of the major problems I perceive with Banking Commission documents is the lack of (good, e.g. English barrister) legal input to the drafting. In his devastating critique of the sub-Article 20(b) debacle and the ICC’s reaction to it, Mark Hapgood QC said in 1999:
‘No one disputes that the UCP should be drafted in the language of bankers rather than lawyers. But lawyers are not incapable of drafting documents in commercial language. Would it not be sensible for the ICC to invite rather more legal input when the next revision is drafted?’
Unfortunately, this did not happen with Pub 645 & seems unlikely to happen with the new UCP.
Jeremy
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
PARA 187
Jeremy,
as with most Banking Committee decisions, the preference of the Executive Committee was mandated by the majority of members present.
I believe that the involvement of lawyers in drafting of future revisions of the UCP would be possibly the biggest spanner that could be thrown in the works. I also do not believe that the majority of members would approve of the undoubted extra time & expense involved and the resultant "legalese" version.
Laurence
as with most Banking Committee decisions, the preference of the Executive Committee was mandated by the majority of members present.
I believe that the involvement of lawyers in drafting of future revisions of the UCP would be possibly the biggest spanner that could be thrown in the works. I also do not believe that the majority of members would approve of the undoubted extra time & expense involved and the resultant "legalese" version.
Laurence
PARA 187
Laurence,
As usual, clearly we are not going to agree. I would merely observe that:
1. Many of the problems of interpretation of ICC Banking Commission documents have been the result of lack of legal input.
2. The intention, as Mark Hapgood's quote indicates, is not to write in legalese but to use (good) lawyers to write in banking language (so as to put an end to the very poor quality documents produced by the Commission, Pub 645 being the latest in a long & dishonourable line).
Jeremy
As usual, clearly we are not going to agree. I would merely observe that:
1. Many of the problems of interpretation of ICC Banking Commission documents have been the result of lack of legal input.
2. The intention, as Mark Hapgood's quote indicates, is not to write in legalese but to use (good) lawyers to write in banking language (so as to put an end to the very poor quality documents produced by the Commission, Pub 645 being the latest in a long & dishonourable line).
Jeremy
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
PARA 187
Jeremy,
the publications to which you refer were intended to be interpreted by bankers, importers & exporters. Ergo the input should reflect that. A tiny minority of DCs issued go to litigation or dispute resolution. I have no desire to see the tail wagging the dog. You don't even have uniformity of jurisprudence within your own country, and you choose to advocate one system over the other (English as opposed to Scottish barrister). If we were to agree with your preference, how could there possibly be agreement worldwide on the nationality of the legal system applicable and yet hope to represent all of the members worldwide ?
As Gary Collyer said last week, UCP & ISBP are rules, not laws. Let us leave law to the legal profession and banking rules to the banking commission.
Laurence
the publications to which you refer were intended to be interpreted by bankers, importers & exporters. Ergo the input should reflect that. A tiny minority of DCs issued go to litigation or dispute resolution. I have no desire to see the tail wagging the dog. You don't even have uniformity of jurisprudence within your own country, and you choose to advocate one system over the other (English as opposed to Scottish barrister). If we were to agree with your preference, how could there possibly be agreement worldwide on the nationality of the legal system applicable and yet hope to represent all of the members worldwide ?
As Gary Collyer said last week, UCP & ISBP are rules, not laws. Let us leave law to the legal profession and banking rules to the banking commission.
Laurence
PARA 187
Laurence,
My parting shot is that:
A. These rules are interpreted by courts, with world-wide ramifications, e.g. originality & def pay't credits.
B. Defective drafting will cause problems irrespective of whose interpreting the rules (bankers, 'traders' or lawyers).
It is not my wish to cause offence, but if your views are representative of the 'decision makers' then I believe we can look forward to many more problems in the years to come when we get the new UCP.
Jeremy
My parting shot is that:
A. These rules are interpreted by courts, with world-wide ramifications, e.g. originality & def pay't credits.
B. Defective drafting will cause problems irrespective of whose interpreting the rules (bankers, 'traders' or lawyers).
It is not my wish to cause offence, but if your views are representative of the 'decision makers' then I believe we can look forward to many more problems in the years to come when we get the new UCP.
Jeremy
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
PARA 187
Jeremy,
as ever, I represent only my own views. It is interesting that you brought up the subject of deferred payment credits. If one compares the recent Korean case with Santander, the respective legal professions in those countries involved came to completely opposite judgements for similar cases.
I am not proposing that this is indicative of the legal profession generally, but the no. of flawed legal decisions shows that lawyers are as human as bankers, but less likely to appreciate the intricacies of international trade generally and the UCP specifically. Even if we were to accept your proposal of seeking drafting from lawyers, who would decide the nationality of the law to be employed ? One of the great strengths of the banking commission is its plurality of representation, without a hint of national interest, save the practicality of accepting the English language as the common language of international trade.
It will never be the case that we can draft a perfect version of the UCP, because there will always be parties seeking to manipulate it for their own reasons, or attempting to renege on their mistaken commitments by deliberately misinterpreting it etc.
Laurence
as ever, I represent only my own views. It is interesting that you brought up the subject of deferred payment credits. If one compares the recent Korean case with Santander, the respective legal professions in those countries involved came to completely opposite judgements for similar cases.
I am not proposing that this is indicative of the legal profession generally, but the no. of flawed legal decisions shows that lawyers are as human as bankers, but less likely to appreciate the intricacies of international trade generally and the UCP specifically. Even if we were to accept your proposal of seeking drafting from lawyers, who would decide the nationality of the law to be employed ? One of the great strengths of the banking commission is its plurality of representation, without a hint of national interest, save the practicality of accepting the English language as the common language of international trade.
It will never be the case that we can draft a perfect version of the UCP, because there will always be parties seeking to manipulate it for their own reasons, or attempting to renege on their mistaken commitments by deliberately misinterpreting it etc.
Laurence