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CSDG考试知识点- Independent undertaking

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Independent undertaking

The issuer of the demand guarantee or standby letter of credit is obliged to pay upon presentation of the stipulated documents, provided all terms and conditions of the instrument are complied with, regardless of actual performance of, or breach of, the underlying relationship. Further, the obligation of the issuer to pay against a complying presentation is independent of the relationship between the issuer and the applicant.

重点

  • A demand guarantee or standby letter of credit is subject only to its terms, whether such terms are expressly stipulated in that guarantee or incorporated by reference (eg, ICC rules).
  • No defence arising from the underlying transaction (such as termination, set‑off, force majeure, a commercial dispute between the applicant and the beneficiary, etc) can be asserted by the issuer to avoid the payment of the guarantee.
  • Likewise, the issuer may not assert any defence arising from the applicant–issuer relationship (bankruptcy of the applicant, breach of the applicant’s duty to pay the issuer’s charges, etc)
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CSDG考试知识点-Irrevocable undertaking

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Irrevocable undertaking

In order for the demand guarantee or standby letter of credit to provide effective security in the event of a default by the applicant, the beneficiary has to be confident that the guarantor or issuer of the instrument will not be able to revoke the instrument or amend it unilaterally at any time before the designated expiry date or expiry event. A demand guarantee or standby letter of credit is therefore treated as irrevocable in almost all cases.

注意：

Indeed, any standby or demand guarantee incorporating ICC rules will be irrevocable unless the instrument expressly states that the undertaking is revocable.If the instrument does not incorporate any ICC rules, it will normally be treated as being irrevocable, but in order to avoid any dispute on the point, it would be good practice to state expressly in the text that the instrument is ‘irrevocable’.

The instrument is effective from the moment it is issued. The guarantor or issuer is bound by the terms of the instrument from that moment. There is no opportunity for a change of mind, even if the instrument has not yet been received by the beneficiary.

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CSDG考试知识点-Key features of demand guarantees and standby letters of credit

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Key features of demand guarantees and standby letters of credit

Most of the key features are the same for demand guarantees and standby
letters of credit. We shall refer to both the demand guarantee and the
standby letter of credit as ‘the instrument’. These key features are:

  1. The instrument is irrevocable and effective from the moment it is issued.一旦开立不可撤销。
  2. The instrument is independent of the underlying relationship.独立于基础交易
  3. Demands must be documentary in form.单据化索偿
  4. Non‑documentary conditions should be avoided.不接受非单据化条款
  5. The instrument will have a fixed monetary limit or a clear mechanism for determining a fluctuating limit.金额是 固定的或有调整上限
  6. The instrument will normally have a fixed duration. This will be a specified expiry date or expiry event, although the instrument may have a clear mechanism for extensions.一般具有固定期限，即使有展期条款也有具体的到期时间或事件
  7. All terms and conditions of the instrument are set out in the instrument itself or in the rules which may be incorporated in the instrument. 所有的条款应符合其本身及适用的条款
  8. The beneficiary of the instrument is identified. Rights under an instrument subject to ICC rules cannot be passed to third parties except in limited circumstances.有限定的受益人，除非特殊规定否则受益人权力不可转让至第三方。
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CSDG考试知识点- ICC rules of independent demand guarantees and standby letters of credit

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ICC rules of independent demand guarantees and standby letters of credit

  • UCP 600:Uniform Customs and Practice for Documentary Credits, 2007 Revision
    (ICC publication No. 600), generally referred to as UCP 600. The rules are not designed to be used with demand guarantees, but one might occasionally see a demand guarantee incorporating UCP 600, however, this is not recommended.
  • ISP98:International Standby Practices, 1998 edition (ICC publication No. 590), generally referred to as ISP98. These rules are primarily intended for  use with standby letters of credit. They may also be used with demand guarantees, but are not appropriate for documentary credits.
  • URDG 758:Uniform Rules for Demand Guarantees, 2010 revision (ICC publication
    No. 758), generally referred to as URDG 758. These rules are intended for demand guarantees, but may be used for standby letters of credit. They are not appropriate for documentary credits. 
  • No rules. Although most standby letters of credit issued in international
    trade and commerce incorporate rules, usually ISP98 or UCP600, many
    demand guarantees incorporate no rules at all
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CSDG考试知识点- Counter‑guarantees and confirmed standby letters of credit

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Counter‑guarantees and confirmed standby letters of credit

反担保保函–Counter‑guarantees：the counter‑guarantee issued by the counter‑guarantor in favour of the guarantor. The demand guarantee issued by the guarantor in favour of the beneficiary.

The demand guarantee and the counter‑guarantee may have different terms and be subject to different laws and legal jurisdiction. In normal circumstances, the beneficiary will present a demand to the guarantor, who will then check that the demand complies with the terms of the demand guarantee.

反担保的付款责任：If it does comply, the guarantor will pay the beneficiary. However, the guarantor has no automatic right to reimbursement by the counter‑guarantor. Instead the guarantor must present a demand under the counter‑guarantee which complies with the terms of the counter‑guarantee. 

备用信用证–Standby letter of credit. The issuing bank gives an undertaking to the beneficiary on the terms of the standby. That standby is then confirmed by the confirming bank in favour of the beneficiary. The terms of the confirming bank’s obligation to the beneficiary are identical to the issuing bank’s obligations to the beneficiary.

备用信用证的付款责任：In normal circumstances, the beneficiary will present a demand to the confirming bank, the confirming bank will check that the demand complies with the terms of the standby and, if it does comply, the confirming bank will pay the beneficiary. The confirming bank will then forward the beneficiary’s demand to the issuing bank and will be entitled to be reimbursed by the issuing bank.

两者的异同：In the event that the confirming bank defaults and fails to pay a complying demand, the beneficiary of the standby letter of credit has the right to present a demand directly to the issuing bank and to be paid by the issuing bank. However, if the guarantor defaults, the beneficiary of the demand guarantee has no
right to present a demand directly to the counter‑guarantor.

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CSDG考试知识点- The independence principle

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The independence principle

The issuer of the demand guarantee or standby letter of credit is obliged to pay upon presentation of the stipulated documents, provided all terms and conditions of the instrument are complied with, regardless of actual performance of, or breach of, the underlying relationship.

Further,the obligation of the issuer to pay against a complying presentation is independent of the relationship between the issuer and the applicant.

重点：

  • A demand guarantee or standby letter of credit is subject only to its  terms, whether such terms are expressly stipulated in that guarantee  or incorporated by reference (eg, ICC rules).
  • No defence arising from the underlying transaction (termination, set‑off, force majeure, a commercial dispute between the applicant and the beneficiary, etc) can be asserted by the issuer to avoid the payment of the guarantee. Nor can the issuer limit the amount payable under the guarantee to that of the actual loss of the beneficiary.
  • The issuer may not assert any defence arising from the applicant–issuer relationship (bankruptcy of the applicant, breach of the applicant’s duty to pay the issuer’s charges, etc).
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CSDG考试知识点-Categories of demand guarantee

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Categories of demand guarantee

There are many different types of demand guarantee, but in broad terms, they can be divided into two categories.

The first category is payment  guarantees. These cover the risk of a default in payment by the applicant.

The second category is performance guarantees. These cover the risk that  the applicant fails to perform the underlying contract with the beneficiary.

重点

1.见索即付保函的两大类型： payment  guarantees  & performance guarantees(付款保函和履约保函）

2.付款保函的类型：
(1)付款保函-Payment guarantees, which cover the risk, for example, that the buyer  does not pay the supplier for goods delivered.
(2)预付款保函-Advance payment guarantees, which cover the risk, for example, that
in the event of non‑fulfilment of the contract, the supplier does not
repay to the buyer any advance payment made by buyer.
(3)融资性保函-Financial guarantees covering payment obligations in banking, finance and insurance.

3.履约保函的类型：
(1)履约保函-Performance guarantees (also called performance bonds) which cover the risk, for example, that a contractor breaches the terms of a
construction contract.
(2)质量保函-Warranty guarantees which cover the risk, for example, of a breach of warranty in respect of the goods, works or services delivered by the applicant.
(3)投标保函-Tender guarantees (also called bid bonds) which cover the risk that a successful bidder on a tender for a large project fails to sign the contract for the project.

4.注意，除上述两大类保函外，也存在不属于两种分类的见索即付保函。

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CSDG考试知识点- The main uses of demand guarantees and standby letters of credit

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The main uses of demand guarantees and standby letters of credit

These instruments are commonly used in international trade, construction projects, finance, insurance,manufacturing, shipbuilding and aircraft leasing, but they can also be used in many other types of business. Whenever two parties enter into an agreement, one party may want a guarantee that the other party will perform its obligations or pay any amount that may be due under the terms of the agreement.

The demand guarantee or standby letter of credit therefore covers either the risk of non‑performance or the risk of non‑payment by the applicant.

重点

  • 见索即付保函和备用信用证的生效：The demand guarantee or standby letter of credit will usually be issued  just before, or soon after, the start of the underlying transaction. Both instruments come into effect at the time they are issued and are irrevocable from that moment, but some types may not allow a demand to be made until a further event has occurred.（例如：预付款保函）
  • 见索即付保函和备用信用证的失效：The demand guarantee or standby letter of credit will then continue in force until the expiry date or the occurrence of an expiry event specified in the text of the instrument.
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CSDG考试知识点- What is a standby letter of credit?

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What is a standby letter of credit?

A standby letter of credit is an irrevocable undertaking by the issuer to pay the beneficiary a sum of money up to the maximum amount of the standby letter of credit, upon presentation by the beneficiary of a demand in documentary form that complies with the terms of the standby.

重点：

  • 备用信用证的形式： a standby letter of credit must be in writing, either in signed paper form or electronic form, such as an authenticated SWIFT message. A facsimile or pdf copy of a standby letter of credit may not be sufficient without a signed original document
  • 备用信用证的指示：The issuer will issue the standby letter of credit only on the instructions of the applicant
  • 见索即付保函的独立性：A principal feature of a standby letter of credit is that it is independent of the underlying relationship between the applicant and the beneficiary.
  • 见索即付保函的付款责任：The obligation of the issuer to pay the beneficiary does not arise on the occurrence of an external event, such as a breach of the underlying relationship. The issuer must pay if the beneficiary makes a demand which complies with the terms of the standby letter of credit.
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