URDG758中國銀行培訓(xùn)ppt課件

1、1URDG758Article 1Application of URDGApply to any demand guarantee or counter-guarantee that expressly indicates it is subject to them, except modifies or excludes them.Demand Guarantee is subject to the URDG, Counter Guarantee is also subject to the URDG.Counter Guarantee is also subject to the URDG

2、, Demand Guarantee is subject to the URDG?Demand Guarantee is subject to the URDG excluded article X, Counter Guarantee is subject to the URDG excluded article X?modifies or excludes?2URDG758Article 1Application of URDGWhere, at the request or with the agreement of the instructing party, a demand gu

3、arantee 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. URDG 1992 version or 2019 version?Can the URDG apply where not expressly incorporated in a guarantee?3URDG758Article 2Defin

4、itionsApplicant means the party indicated in the guarantee as having it obligation under the underlying relationship supported by the guarantee. The applicant may or may not be the instructing party.Instructing party means the party, other than the counter-guarantor, who gives instructions to issue

5、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.Party v. Bank4URDG758Article 2DefinitionsDemand guarantee means any signed undertaking, however name

6、d or described, providing for payment on presentation of a complying demand. Structure of five-party guarantee Can guarantor issue a guarantee acting for its own account? Instructing Party Beneficiary Guarantor Applicant Counter Guarantor Principal 5URDG758Article 2DefinitionsPresentation means the

7、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.Document means a signed or unsigned record of

8、 information, in paper or in 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.Document includes fax or ?6URDG758Article 2DefinitionsComplying presentation under a guara

9、ntee 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 guarante

10、e practice.Complying demand means a demand that meets the requirements of a complying presentation.Complying presentation under UCP600? Presentation v. Demand?7URDG758Article 2DefinitionsInternational standard demand guarantee practiceThis is meant as a first step to supplementing in the next few ye

11、ars the revised URDG with a body of codified standard practices similar to ISBP when ICC feel that Opinions, DOCDEX decisions and other position papers would allow to identify distinctively such a body of standards in the meantime, it is felt that the new concept of ISDGP so for as consistent with t

12、he URDG will allow parties judges and arbitrators more latitude in identifying solutions to disputes while remaining within the spirit and general principals of the URDG. ISDGP, a gap-filler to URDG.DOCDEX: ICC Rules for Documentary Instruments Dispute Resolution Expertise. 20191001.8URDG758Article

13、2DefinitionsUnderlying relationship means the contract, tender conditions or other relationship between the applicant and the beneficiary on which the guarantee is based.Guarantors own records means records of the guarantor showing amounts credited to or debited from accounts held with the guarantor

14、, provided the record of those credits or debits enables the guarantor to identify the guarantee to which they relate;The case of “other relationship”?9URDG758Article 2Definitionsexpiry means the expiry date or the expiry event or, if both are specified, the earlier of the two; expiry date means the

15、 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. whe

16、n 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 guarantors own records.Valid until 30 days after delivery evidenced

17、 by cargo receipt ?10URDG758Article 3InterpretationBranches of a guarantor in different countries are considered to be separate entities. a guarantee includes a counter-guarantee and any amendment a guarantor includes a counter-guarantor a beneficiary includes the party in whose favour a counter-gua

18、rantee is issued.Any requirement for presentation of one or more originals or copies of an electronic document is satisfied by the presentation of one electronic document. Different Branches in one country are considered to be one?11URDG758Article 3InterpretationWhen used with a date or dates or a p

19、eriod i. Include: from , to , until , till and between , ii. Exclude: before and after , iii. Exclude+ Include: within .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 o

20、r the applicant to issue that document.Allow instructing party to issue that document?12URDG758Article 4Issue and effectiveness A guarantee is issued when it leaves the control of the guarantor. A guarantee is irrevocable on issue even if it does not state this.The beneficiary may present a demand f

21、rom the time of issue of the guarantee or such later time or even as the guarantee provided.What does “l(fā)eaves the control of the guarantee” mean?13URDG758Article 5Independence of guarantee and counter-guarantee A guarantee is independent of underlying relationship, the application. A counter guarant

22、ee is independent of guarantee, underlying relationship the application any other counter-guaranteeDirect guarantee and Indirect guarantee 14URDG758Article 6 Documents v. goods, services or performanceGuarantors deal with documents and not with goods, services or performance to which the documents m

23、ay relate.15URDG758Article 7 Non-documentary conditions A guarantee should specify a document to indicate compliance with the condition contained in the guarantee.If the guarantee does not specify any such document and the fulfilment of the condition cannot be determined 1.from the guarantors own re

24、cords, or 2.from an index specified in the guarantee then the guarantor will deem such conditions as not stated and will disregard it, except for the purpose of determining date in a document presented do not conflict with data in guarantee.What is an index?16URDG758Article 8 Content of instructions

25、 and guaranteesAll instructions 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 guarantord. a reference number or other information identifying the underlying relationship;e. a reference number or

26、other information identifying the issued guarantee or, in the case of a counter-guarantee, the issued counter-guarantee;Should specify the instructing party?17URDG758Article 8 Content of instructions and guaranteesIt is recommended that all guarantees specify:f. the amount or maximum amount payable

27、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; andk. the party liable for the payment of any

28、 charges.The changes to URDG458?18URDG758Article 9 Application not taken upWhere, at the time of receipt of the application, the guarantor is not prepared, or the guarantor is unable to issue the guarantee, the guarantor should without delay so inform the party that gave the guarantor its instructio

29、ns.The request to issue a domestic guarantee subject to URDG?19URDG758Article 10 Advising of guarantee or amendment Advice a guarantee: satisfy the apparent authenticity, and advice accurately reflects the terms and conditions of guarantee An advising party or a second advising party advises a guara

30、ntee without any additional representation or any undertaking whatsoever to the beneficiary. If a party cannot satisfy the apparent authenticity and elects nonetheless to advise that guarantee, the party should state the same.Advising a guarantee should whenever possible use the same party to advise

31、 any amendment to that guarantee.a second advising party?20URDG758Article 11 Amendment An amendment made without the beneficiarys agreement is not binding on the beneficiary. The beneficiary may reject an amendment of the guarantee at any time until it notifies its acceptance of the amendment, or ma

32、ke a presentation that complies only with the guarantee as amended. Partial acceptance of an amendment is not allowed and will be deemed to be notification of rejection of the amendment. A provision in an amendment to the effect that the amendment shall take effect unless rejected within a certain t

33、ime shall be disregarded.What does “complies only” mean?21URDG758Article 12 Extent of guarantors liability under the guarantee A guarantor is liable to the beneficiary only in accordance with, the terms and conditions of the guarantee and, these rules so far as consistent with those terms and condit

34、ions,Up to the guarantee amount. Beyond the expiry date?22URDG758Article 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 variatio

35、n 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, orb. if not such document is specified in the guarantee, when the occurrence of the event becomes de

36、terminable from the guarantors own records or from an index specified in the guarantee.23URDG758Article 14 Presentation A presentation shall be made to the guarantor: at the place of issue, or such other place as is specified in the guarantee and, on or before expiry A presentation has to be complet

37、e unless it indicates that it is to be completed later. In that case, it shall be completed before expiry. Each presentation shall state the guarantors reference number of the guarantee. If it does not, the time for examination of a demand start on the date of identification. Documents issued by app

38、licant or beneficiary shall be in the language of the guarantee. Any other person, any language.The function of the statement “presentation to be completed later”?24URDG758Article 14 Presentation A guarantee indicates presentation in electronic form, the guarantee should specify the format, the syst

39、em for the data delivery and the electronic address for that presentation. If not specify, presented in any electronic format authenticated or in paper form are acceptable. A guarantee indicates presentation in paper form, may use any mode of delivery unless excluded by the guarantee. A guarantee do

40、es not indicate in electronic or paper form, any presentation shall be made in paper form.Reject a presentation in electronic form when form of presentation is not specified ?25URDG758Article 15 Requirements for demand A demand under the guarantee shall be supported a statement, indicating in what r

41、espect the applicant is in breach of its obligations under the underlying relationship. The statement may be in the demand or in a separate singed document accompanying or identifying the demand. A demand under the counter guarantee shall be supported by a statement indicating that such party has re

42、ceived a complying demand under the guarantee or counter guarantee. The above requirement applies except to the extend 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

43、 of this paragraph.Such as ?26URDG758Article 15 Requirements for demand 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 statemen

44、t, nor any other document may be dated later than the date of its presentation. 27URDG758Article 16 Information about demandThe 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 alternati

45、ve, 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.Inform Non-complying demand ?28URDG758Article17 Partial dem

46、and & multiple demand; amount of demand Partial demand: A demand may be made for less than the full amount available Multiple demand: More than one demand may be made Multiple demand prohibited: only one demand covering all or part of the amount available may be made one demand is rejected, another

47、demand can be made on or before expiry of the guarantee. It is a non-complying demand if: it is for more than the amount available under the guarantee, or any supporting statement or other documents required by the guarantee indicate amounts that in total are less than the amount demanded.The case l

48、ess than and more than?29URDG758Article 18 Separateness of each demanda. 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

49、 of a demand that is not a complying demand does not waive the requirement for other demands to be complying demands.30URDG758Article 19 Examination The guarantor shall determine, on the basis of a presentation alone, whether it appears on its face to be a complying presentation. Data in a document

50、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. The guarantor will accept a document if its content appears to fu

51、lfil the function of the document required by the guarantee. Any signature will be accepted if a singed document is required. A document is not required but presented, it will disregarded and may be returned to the presenter.How to handle the document not required?31URDG758Article 19 Examination The

52、 guarantee need not recalculate the beneficiarys calculations under a formula stated or referenced in a guarantee.The guarantor shall consider a requirement for a document to be legalized, visaed, certified or similar as satisfied by any signature, mark, stamp or label on the document which appears

53、to satisfy that requirement. Recalculate the applicants calculations?32URDG758Article 20 Time for examination of demand; paymentIf 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

54、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. Place

55、 for payment: 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-guaranteeExamine the presentation to be completed later?33URDG758Article 21 Currency o

56、f payment Pay a complying demand in the currency specified in the guarantee If, on any date on which a payment is to be made under guarantee: the guarantor is unable to pay in such currency due to an impediment beyond control, or it is illegal under the law of the place to make payment in such curre

57、ncy.-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 the counter guarantor shall be bound by a payment in such currency .- the guarantor or cou

58、nter guarantor may elect to be reimbursed either in actual payment currency or currency specified in the guarantee.Exchange risk?34URDG758Article 21 Currency of payment Payment or reimbursement in the currency of the place for payment under Article 21 paragraph (b) is to be made according to the app

59、licable 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 pay

60、ment.the applicable rate of exchange prevailing?35URDG758Article 22 Transmission of copies of complying demandThe 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 transmissio