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History & Modern Evolution of Transnational Commercial Law

Gélinas, Fabian, Trade Usages and Implied Terms in the Age of Arbitration, 2016

Title
Gélinas, Fabian, Trade Usages and Implied Terms in the Age of Arbitration, 2016
Content

219

 
In the final award in ICC Case No. 13774 of 2009, the sole arbitrator, sitting in Cairo, discussed the trade usages applicable to letters of credit, independent
from the law applicable to the merits of the case.
It was found that the strict compliance rule, reflected in the ICC-codified Uniform Customs and Practice for Documentary Credits (the UCP 500),16 provided that discrepancies or inconsistencies in the documents submitted by the creditor—unless they are truly trivial—are enough to justify refusing payment under a letter of credit if they do not strictly conform to credit terms.
The strict compliance rule’s inclusion in the UCP 500 was regarded as evidence of an international banking practice for letters of credit, relevant under article 17(2) ofthe ICC Rules. Respondent's defense, according to which its conduct did not amount to a breach because it was the result of an unjustified refusal by the bank to pay claimant on the basis of a correct letter of credit, was rejected.
In ICC Case No. 14958 of 2010, the majority of an arbitral tribunal sitting in Geneva held that since the dispute revolved around the calling in of certain guarantees, the 1995 United Nations Convention on Independent Guarantees and the Stand-by Letters of Credit17 as well as the ICC Uniform Rules for

220

Demand Guarantees18 formed part of the relevant trade usages pursuant to article 17(2) ofthe ICC Rules.

16ICC, UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993), art. 13. The version in force at the time was the following: “Banks must examine all documents stipulated in the Credit with reasonable care to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the Credit.”
17United Nations Convention on Independent Guarantees and Stand-by Letters of Credit, Dec. 11, 1995, 2169 U.N.T.S. 163,
18ICC UNIFORM RULES FOR DEMAND GUARANTEES (2010).

16ICC, UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993), art. 13. The version in force at the time was the following: “Banks must examine all documents stipulated in the Credit with reasonable care to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the Credit.”

17United Nations Convention on Independent Guarantees and Stand-by Letters of Credit, Dec. 11, 1995, 2169 U.N.T.S. 163,

18ICC UNIFORM RULES FOR DEMAND GUARANTEES (2010).

Referring Principles
Trans-Lex Principle: V.2.1 - Payment in currency of place of payment
Trans-Lex Principle: V.2.6 - Autonomy and strict compliance of letters of credit and bank guarantees
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