URDG758中国银行培训课件.ppt

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,D

2、emand 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?1 U R D G 7 5 8 A r t i c l e 1 1 U R D G 7 5 8 A r t i c l e 1A p p l i c a t i o n A p p l i c a t i o n 2URDG758Articl

3、e 1Application of URDGWhere,at the request or with the agreement of the instructing party,a demand guarantee 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 201

4、0 version?Can the URDG apply where not expressly incorporated in a guarantee?2 U R D G 7 5 8 A r t i c l e 1 2 U R D G 7 5 8 A r t i c l e 1A p p l i c a t i o n A p p l i c a t i o n 3URDG758Article 2DefinitionsApplicant means the party indicated in the guarantee as having it obligation under the u

5、nderlying 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 a guarantee or counter-guarantee and is responsible for indemnifying the guarantor or,in the case

6、 of a counter-guarantee,the counter-guarantor.The instructing party may or may not be the applicant.Party v.Bank3 U R D G 7 5 8 A r t i c l e 2 3 U R D G 7 5 8 A r t i c l e 2D e f i n i t i o n s D e f i n i t i o n s4URDG758Article 2DefinitionsDemand guarantee means any signed undertaking,however

7、named 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 4 U R D G 7 5 8 A r t i c l e 2 4 U R D G 7 5 8 A

8、r t i c l e 2D e f i n i t i o n s I D e f i n i t i o n s I5URDG758Article 2DefinitionsPresentation means the 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 trigg

9、ering the expiry of the guarantee or a variation of its amount.Document means a signed or unsigned record of 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 support

10、ing statement.Document includes fax or e-mail?5 U R D G 7 5 8 A r t i c l e 2 5 U R D G 7 5 8 A r t i c l e 2D e f i n i t i o n s D e f i n i t i o n s6URDG758Article 2DefinitionsComplying presentation under a guarantee means a presentation that is in accordance with,first,the terms and conditions

11、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 guarantee practice.Complying demand means a demand that meets the requirements of a complying prese

12、ntation.Complying presentation under UCP600?Presentation v.Demand?6 U R D G 7 5 8 A r t i c l e 2 6 U R D G 7 5 8 A r t i c l e 2D e f i n i t i o n s D e f i n i t i o n s7URDG758Article 2DefinitionsInternational standard demand guarantee practiceThis is meant as a first step to supplementing in th

13、e next few years 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 consis

14、tent with the 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.19971001.7 U R D G

15、 7 5 8 A r t i c l e 2 7 U R D G 7 5 8 A r t i c l e 2D e f i n i t i o n s D e f i n i t i o n s8URDG758Article 2DefinitionsUnderlying relationship means the contract,tender conditions or other relationship between the applicant and the beneficiary on which the guarantee is based.Guarantors own rec

16、ords means records of the guarantor showing amounts credited to or debited from accounts held with the guarantor,provided the record of those credits or debits enables the guarantor to identify the guarantee to which they relate;The case of “other relationship”?8 U R D G 7 5 8 A r t i c l e 2 8 U R

17、D G 7 5 8 A r t i c l e 2D e f i n i t i o n s D e f i n i t i o n s9URDG758Article 2Definitionsexpiry means the expiry date or the expiry event or,if both are specified,the earlier of the two;expiry date means the date specified in the guarantee on or before which a presentation may be made;expiry

18、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.when a document specified in the guarantee as indicating the occurrence of the event is presen

19、ted 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 by cargo receipt?9 U R D G 7 5 8 A r t i c l e 2 9 U R D G 7 5 8 A r t i c l e 2D e f i n i t

20、 i o n s D e f i n i t i o n s10URDG758Article 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 c

21、ounter-guarantee 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?1 0 U R D G 7 5 8 A r t i c l e 3 1 0 U R D G 7 5 8 A r t i

22、c l e 3I n t e r p r e t a t I n t e r p r e t a t11URDG758Article 3InterpretationWhen used with a date or dates or a period 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 o

23、r local when used to describe the issuer of a document allow any issuer except the beneficiary or the applicant to issue that document.Allow instructing party to issue that document?1 1 U R D G 7 5 8 A r t i c l e 3 1 1 U R D G 7 5 8 A r t i c l e 3I n t e r p r e t a t I n t e r p r e t a t12URDG75

24、8Article 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 from the time of issue of the guarantee or such later time or even as the guarantee provided.Wha

25、t does“leaves the control of the guarantee”mean?1 2 U R D G 7 5 8 A r t i c l e 4 1 2 U R D G 7 5 8 A r t i c l e 4I s s u e a n d e I s s u e a n d e13URDG758Article 5Independence of guarantee and counter-guarantee A guarantee is independent of underlying relationship,the application.A counter guar

26、antee is independent of guarantee,underlying relationship the application any other counter-guaranteeDirect guarantee and Indirect guarantee 1 3 U R D G 7 5 8 A r t i c l e 5 1 3 U R D G 7 5 8 A r t i c l e 5I n d e p e n d e n c I n d e p e n d e n c14URDG758Article 6 Documents v.goods,services or

27、performanceGuarantors deal with documents and not with goods,services or performance to which the documents may relate.1 4 U R D G 7 5 8 A r t i c l e 6 D o c u m e n t s 1 4 U R D G 7 5 8 A r t i c l e 6 D o c u m e n t s 15URDG758Article 7 Non-documentary conditions A guarantee should specify a do

28、cument 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 records,or 2.from an index specified in the guarantee then the guarantor will deem such c

29、onditions 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?1 5 U R D G 7 5 8 A r t i c l e 7 N o n-d o c u m e 1 5 U R D G 7 5 8 A r t i c l e 7 N o n-d o c u m e16URDG758Article 8 Content o

30、f instructions 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 n

31、umber or other information identifying the issued guarantee or,in the case of a counter-guarantee,the issued counter-guarantee;Should specify the instructing party?1 6 U R D G 7 5 8 A r t i c l e 8 C o n t e n t o 1 6 U R D G 7 5 8 A r t i c l e 8 C o n t e n t o17URDG758Article 8 Content of instruc

32、tions and guaranteesIt is recommended that all guarantees specify:f.the amount or maximum amount payable 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.t

33、he language of any document specified in the guarantee;andk.the party liable for the payment of any charges.The changes to URDG458?1 7 U R D G 7 5 8 A r t i c l e 8 C o n t e n t o 1 7 U R D G 7 5 8 A r t i c l e 8 C o n t e n t o18URDG758Article 9 Application not taken upWhere,at the time of receip

34、t 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 instructions.The request to issue a domestic guarantee subject to URDG?1 8 U R D G 7 5 8 A r t i c l e 9 A p p l i c

35、 a t i 1 8 U R D G 7 5 8 A r t i c l e 9 A p p l i c a t i19URDG758Article 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 guarantee

36、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 any am

37、endment to that guarantee.a second advising party?1 9 U R D G 7 5 8 A r t i c l e 1 0 A d v i s i n g 1 9 U R D G 7 5 8 A r t i c l e 1 0 A d v i s i n g20URDG758Article 11 Amendment An amendment made without the beneficiarys agreement is not binding on the beneficiary.The beneficiary may reject an

38、amendment of the guarantee at any time until it notifies its acceptance of the amendment,or make 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 ame

39、ndment to the effect that the amendment shall take effect unless rejected within a certain time shall be disregarded.What does“complies only”mean?2 0 U R D G 7 5 8 A r t i c l e 1 1 A m e n d m e n 2 0 U R D G 7 5 8 A r t i c l e 1 1 A m e n d m e n21URDG758Article 12 Extent of guarantors liability

40、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 conditions,Up to the guarantee amount.Beyond the expiry date?2 1 U R D G 7 5 8 A r t i c l e 1 2 E x t e n t o 2 1

41、U R D G 7 5 8 A r t i c l e 1 2 E x t e n t o22URDG758Article 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 variation of its am

42、ount,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 determinable from t

43、he guarantors own records or from an index specified in the guarantee.2 2 U R D G 7 5 8 A r t i c l e 1 3 V a r i a t i o 2 2 U R D G 7 5 8 A r t i c l e 1 3 V a r i a t i o23URDG758Article 14 Presentation A presentation shall be made to the guarantor:at the place of issue,or such other place as is

44、specified in the guarantee and,on or before expiry A presentation has to be complete 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 examin

45、ation of a demand start on the date of identification.Documents issued by applicant 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”?2 3 U R D G 7 5 8 A r t i c l e 1 4 P r e s e n t a 2 3 U R D G

46、 7 5 8 A r t i c l e 1 4 P r e s e n t a24URDG758Article 14 Presentation A guarantee indicates presentation in electronic form,the guarantee should specify the format,the system for the data delivery and the electronic address for that presentation.If not specify,presented in any electronic format a

47、uthenticated 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 does not indicate in electronic or paper form,any presentation shall be made in paper form.Reject a presentation in electronic form

48、when form of presentation is not specified?2 4 U R D G 7 5 8 A r t i c l e 1 4 P r e s e n t a 2 4 U R D G 7 5 8 A r t i c l e 1 4 P r e s e n t a25URDG758Article 15 Requirements for demand A demand under the guarantee shall be supported a statement,indicating in what respect the applicant is in bre

49、ach 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 received a complying demand under

50、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 of this paragraph.Such as?2 5 U R D