International Settlement Case

1、 Deferred Payment Letter of Credit 延期付款信用證延期付款信用證 International Settlement CaseFinance 1301 Finance 1301 肖穎肖穎 靳嫣然靳嫣然 于帥于帥Finance 1302 Finance 1302 鄒晨希鄒晨希Review of Deferred Payment Letter of CreditA kind of credit that A kind of credit that the issuing bank or nominated bank the issuing bank or nomin

2、ated bank will effect payment on a specified future date.will effect payment on a specified future date. 1 Under deferred payment credit, no draft is accompanied for document presentation.遠期付款不開立匯票。 2 The maturity of the instrument has been fixed since the beneficiary made a presentation.受益人交單時已確定付款

3、到期日。The Basic Facts IApplicant, Issuing Bank AAdvising(Confirming) Bank CBeneficiary BShipping CompanyAmount: $18,500,000Available with Bank A by deferred payment at 180 days after the issuance of transport doucuments.在單證相符的條件下，在單證相符的條件下，提單日后提單日后180天由開證行天由開證行辦理延期付款辦理延期付款The Basic Facts II Normal pro

4、cedures of L/C Reasons (For Bank A)：1.The fraud is found before due date.2.The issuing bank has no duty to pay for Bank Cs financing(融資融資) for Beneficiray B.Issuing Bank ABeneficiary BApplicantAdvising Bank C（Confirming bank）Shipping CompanyDiscount （貼現(xiàn)）（貼現(xiàn)）D/P after sightAssignmentPREMISE 案件基本前提案件基

5、本前提 NO.1 The fraud was established. 欺詐確定成立NO.2 The advising bank Innocent Party with Good Faith 貼現(xiàn)時不知悉欺詐存在NO.3 The confirming bank and the issuing bank Learn the fraud before maturity 到期前獲悉欺詐Division：肖穎：肖穎 Introduction & Basic Facts 靳嫣然靳嫣然 The Focus of Case 于帥于帥 Final Judgement 鄒晨希鄒晨希 Comparison & E

6、nlightenmentLaws Based AnalysisBank C discounts the L/C(銀行銀行C貼現(xiàn)貼現(xiàn))B is discovered his fraudDUE DATEfraud exception rule “欺詐例外欺詐例外”原則原則C would have right to reject instead of discountingThe period of C having no liabilityTLaws Based AnalysisAssignment of rights 權(quán)利讓渡權(quán)利讓渡Bank CAssignee受讓人受讓人howeverBank

7、 C still cannot claim for reimbursementB, the beneficiary B as the alienator讓渡讓渡人人 has greater rights compared to the Bank CbecauseThe opinion of the judge1.The issuing bank makes the basic authorization to the confirming bank: pay to the beneficiary on the due date.（開證行對保兌行作出的基本授權(quán)是：到期付款）2.The respo

8、nsibility of issuing bank :pay to the confirming bank.（開證行相應的償付責任是：到期償付）3.If cheat happens before the due date,neither the issuing bank nor the confirming bank should take the paying responsibility. （如果在到期前確定發(fā)生欺詐，那么保兌行則不再承擔付款責任，開證行亦不承擔償付責任） England court of appeal decision1.The issuing bank can refu

9、se paying to the confirming bank because of the cheat from the beneficiary. (開證行可以受益人欺詐為由拒絕對保兌行償付)2. The assignee cant have the priority to the assignor. (受讓人不能獲得優(yōu)于讓渡人的權(quán)利）3.Although the bill was accepted and discounted, the issuing bank still can refuse the confirming bank . (盡管在欺詐發(fā)現(xiàn)之前保兌行已接受了單據(jù)并對受益人

10、進行了付款，開證行仍然有權(quán)采取拒付行動)Case analysis1.The confirming bank doesnt have the direct or independent right to get the payment from the issuing bank. (提供融資的銀行不具有在信用證下從開證行獲得直接的、獨立的付款承諾的權(quán)利。融資行的權(quán)利實質(zhì)上產(chǎn)生于受益人的權(quán)利讓渡。)2.If the beneficiary gets the bill discounted and then cheats intentionally , the confirming bank ge

11、t no pay. (如受益人獲取貼現(xiàn)后實施欺詐，融資銀行將很可能是受到損失的一方)Case analysis3.Because of the risk of being cheated, the confirming bank should check its policy of risk control. (因為銀行在信用證交易中受益人欺詐的風險，因此，保兌銀行在考慮對延期付款信用證做融資時，需仔細審查自己的風險控制政策)4.The judgment is in favor of issuing bank , so the issuing bank tends to issue defer

12、red payment letter of credit in the long-term business.(由于法官的判決有利于開證行，將使開證行在遠期業(yè)務中更傾向于開立延期付款信用證） Disputes of the Sentence: U.K. Versus U.S.ABench opinion from the UK:Letter of credit with deferred obligation is NOT under legal protection.Discretionary explanation on the clauses:1.The payment to B bef

13、ore due date is NOT regarded as the liable for the payment.2.The future discount made Bank C the assignee for B.3.The nominated assignee for the letter of credit with deferred payment reserves NO priority to ask for pay off.Disputes of the Sentence: U.K. Versus U.S.AFinal judge:Bank A did NOT oblige

14、 to pay off the loss of Bank C while Bank C reserves the right to pursue B. Disputes of the Sentence: U.K. Versus U.S.Clauses in US law:5-109. Fraud and Forgery, Uniform Commercial Code, the USA(a) If a presentation is made that appears on its face strictly to comply with the terms and conditions of

15、 the letter of credit, but a required document is forged or materially fraudulent, or honor of the presentation would facilitate a material fraud by the beneficiary on the issuer or applicant: (1)the issuer shall honor the presentation, if honor is demanded by (i) a nominated person who has given va

16、lue in good faith and without notice of forgery or material fraud, (ii) a confirmer who has honored its confirmation in good faith, (iv) an assignee of the issuers or nominated persons deferred obligation that was taken for value and without notice of forgery or material fraud after the obligation w

17、as incurred by the issuer or nominated person;Case AnalysisPREREQUSITEACTUAL SITUATIONConfirmation honored in good faithMatchEquivalent value given in good faith,MatchForgery and materially fraudulent notice after obligation deferred,MatchPossible Sentence in US1. Bank A should pay back Bank C.2. Ba

18、nk A reserves the right to pursue affix responsibilities of B.3. The presentation honor & deferred payment are homogenous undertaking within the clauses of letter of credit.Influences & Inspiration Letter of credit with deferred payment would become means of payment instead of financing generally.Banks honor payment