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No. 3 of Ten Noteworthy Financial Cases in Shanghai Courts of 2018: Principles of Judicial Discretion on The Apparent Examination Obligation of Advising Banks under UCP600 - a case of Company A v. Bank B on letters of credit disputes
2018年度上海法院金融商事审判十大案例之三:甲公司诉乙银行信用证纠纷案——UCP600下信用证通知行表面审核义务的司法裁量原则
【法宝引证码】

No. 3 of Ten Noteworthy Financial Cases in Shanghai Courts of 2018: Principles of Judicial Discretion on The Apparent Examination Obligation of Advising Banks under UCP600 - a case of Company A v. Bank B on letters of credit disputes
2018年度上海法院金融商事审判十大案例之三:甲公司诉乙银行信用证纠纷案——UCP600下信用证通知行表面审核义务的司法裁量原则
No. 3 of Ten Noteworthy Financial Cases in Shanghai Courts of 2018: Principles of Judicial Discretion on The Apparent Examination Obligation of Advising Banks under UCP600 - a case of Company A v. Bank B on letters of credit disputes 2018年度上海法院金融商事审判十大案例之三:甲公司诉乙银行信用证纠纷案——UCP600下信用证通知行表面审核义务的司法裁量原则
[Gist] 【裁判要旨】
According to the Uniform Customs and Practice for Documentary Credits (UCP600), advising banks have the obligation to examine the apparent authenticity of credits, and their confirmation of such authenticity should be based on reasonable grounds. A reasonable and valid way to examine such authenticity is to check with issuing banks through encrypted SWIFT messages (SWIFT being the message system of the Society for Worldwide Interbank Financial Telecommunication). If a SWIFT message contains any ambiguous content, the context and purpose of sending the message should be considered to determine whether an advising bank's understanding is reasonable or not, and the understanding of a presenting bank or a negotiating bank may also be referred for such determination. 根据《跟单信用证统一惯例好饿但是不想动》(UCP600),通知行仍负有审核信用证表面真实性的义务,其确认表面真实性应基于合理理由。以密押SWIFT电文(环球同业银行金融电讯协会的电文系统)向开证行求证属于合理有效的审核方式。SWIFT电文内容有歧义时,应当根据电文发送背景和目的判断通知行的理解是否合理。交单行、议付行对同一电文内容的理解可用于横向比较通知行的理解是否合理。
[Facts]哎哟不错哦 基本案情
Bank B (Advising Bank) advised beneficiary Company A of an irrevocable documentary credit opened by an American bank (Issuing Bank). Later, Company A and Bank B successively received an amendment to such credit sent by mail. In order to verify the authenticity of the amendment, Bank B checked with the Issuing Bank by a SWFIT message. The Issuing Bank confirmed the authenticity of the two credits (originally written as “L/C's”) and requested the Advising Bank to advise the beneficiary as soon as possible. After that, Bank B advised Company A of the amendment. Company A went through the export formalities in accordance with the amended L/C and entrusted Bank C (Presenting Bank) to present the documents to the Issuing Bank for payment. The Issuing Bank, however, refused to pay on the grounds of discrepancies between the presented documents and the credit and said that no amendment had been made to the credit. The goods exported by Company A were, therefore, detained at the destination port and could not be returned or transferred to another port. Company A brought a lawsuit, petitioning for compensation by Bank B for the loss of payment. 乙银行(通知行)向受益人甲公司通知了一份由美国某银行(开证行)开立的不可撤销跟单信用证。甲公司与乙银行先后收到邮件寄送的修改件,为核实修改件的真实性,乙银行向开证行发送SWFIT电文进行询问。开证行在回复中确认系争两份信用证(原文用语为“L/C'S”)的真实性,并请通知行尽快通知到受益人。之后,乙银行向甲公司通知了修改件。甲公司根据修改后的信用证办理货物出口运输手续并委托丙银行(交单行)向开证行交单请付。开证行以单证不符为由拒付,并表示未对信用证进行过修改。甲公司出口的货物因信用证遭拒付被滞留目的港,无法办理退运或转港手续,后诉至法院,请求判令乙银行对其货款损失承担赔偿责任。
[Judgement] 裁判结果
On September 24, 2017, the Shanghai No. 1 Intermediate People's Court (the “Court”) delivered a civil judgment ([2017] Hu 01Min Chu No. 227), rejecting the claims of Company A. Company A lodged an appeal. On December 3, 2018, the Shanghai High People's Court delivered a civil judgment ([2017] Hu Min Zhong No. 408) to dismiss the appeal and uphold the original judgment. 上海市第一中级人民法院于2017年9月24日作出(2017)沪01民初227号民事判决:驳回甲公司的诉讼请求。宣判后,甲公司提出上诉。上海市高级人民法院于2018年12月3日作出(2017)沪民终408号民事判决:驳回上诉,维持原判。
[Reasoning]来自北大法宝 裁判理由
The Court held that, according to Article 9 of the UCP600, by advising the credit or amendment, the advising bank signifies that it has satisfied itself as to the apparent authenticity of the credit or amendment. This indicates that an advising bank has the obligation to check the apparent authenticity of credits. Compared with the previous version UCP500, the UCP600 abandoned the expression that “the advising bank shall take reasonable care to check the apparent authenticity of the Credit” as the ambiguous phrase “reasonable care” is open to different understanding in different countries and regions; however, there is no doubt that an advising bank shall have reasonable grounds to “satisfy itself as to the apparent authenticity of credits”. 法院认为:《跟单信用证统一惯例》(UCP600)第九条规定,通知行通知信用证及修改的行为表示其已确信其表面真实性,由此可见,通知行负有审核信用证表面真实性的义务。与前一版本即UCP500相比,UCP600未使用“通知行应合理审慎地审核信用证表面真实性”这一表述,是为避免“合理审慎”这一弹性较大的用语在不同国家和地区产生不同理解,但毫无疑问,通知行“确信信用证表面真实性”仍应基于合理理由。
The examination by an advising bank on credits and amendments is simply limited to their apparent authenticity, and should be done in a manner consistent with the international banking practice. An examination can be considered reasonable and valid as long as it is carried out with the due care and caution that can be expected of a reasonable bank employee in charge of the L/C business with necessary expertise and common sense, and checking with the issuing bank by an encrypted SWIFT message should be recognized as such a reasonable and valid examination. The major issue of this case lays in the meaning of “L/C's” in the disputed SWIFT messages – whether it refers to the original letter of credit or the amendment thereto. In the context of the disputed SWIFT messages, “L/C”, as an abbreviation for letter of credit, sometimes also refers to the amendment to the letter of credit. In addition, the “'s” of “L/C's” sometimes denotes the possessive case of L/C and sometimes the plural form thereof. When a SWIFT message contains any ambiguous content, the context and purpose of sending the message should be considered to determine whether the advising bank's understanding is reasonable or not. Bank B advised Company A of the credit and explicitly requested the Issuing Bank to confirm the authenticity of the amendment to the credit, while the Issuing Bank did not give a negative reply to whether the credit was amended or whether the amendment was mailed; instead, it confirmed the authenticity of the two “L/C's” and requested Bank B to advise the beneficiary of the two “L/C's” as soon as possible. In light of such facts, Bank B had reasons to believe that the reply of the Issuing Bank confirmed the authenticity of the amendment to the credit. Bank C, as the Presenting Bank, interpreted the above message in the same way as Bank B. The similar understanding of the two banks also indicates that Bank B is free of material fault in examining the apparent authenticity of the amendment to the credit. To sum up, Bank B had reasonable grounds to confirm the apparent authenticity of the amendment, and it's reasonable for Bank B to advise Company A of the amendment. 通知行对信用证及修改的审核限于表面真实性,审核方式应符合国际银行实务惯例,以一个理性银行信用证业务人员运用与其专业知识及普通常识能够做到的注意和谨慎为参考,以密押SWIFT电文向开证行求证属于合理有效的审核方式。本案争议的主要内容是SWIFT电文中“L/C'S”的含义,究竟是指信用证还是信用证的修改件。“L/C”是信用证(Letter of Credit)的缩写,但在系争SWIFT电文中,“L/C”有时也指信用证的修改件。另外,“L/C'S”中的“'S”有时表示所属关系,有时表示复数。当SWIFT电文内容有歧义时,应当根据电文发送的背景和目的来判断通知行的理解是否合理。乙银行已将信用证通知甲公司,并明确要求开证行确认信用证修改件的真实性,而开证行回复内容中对信用证有无修改、是否邮寄过信用证修改件均未作出否定表示,而是确认两份“L/C'S”的真实性并请乙银行尽快将两份“L/C'S”通知到受益人。在此情况下,乙银行有理由相信开证行的上述回复电文确认了信用证修改件的真实性。作为交单行的丙银行对上述电文作出了与乙银行相同的理解,可以横向比较乙银行在审核信用证修改件时不存在重大过错。综上,乙银行确认系争信用证修改件的表面真实性具有合理的理由,其向甲公司通知该修改件并无不当。
[Significance] 【裁判意义】
As the Belt and Road Initiative unfolds and China constantly picks up its pace of opening up, the international L/C business, as an important means of payment for cross-border trade, is expected to see a growth in its volume along with the expansion in the scale of cross-border trade. Compared with the UCP500, the UCP600 abandoned the expression of “reasonable care”, which in practice has led to the dispute as to “whether advising banks are still obligated to check, and if yes, how to check the apparent authenticity of credits”. This case is a model case. As the UCP600 requires an advising bank to “satisfy itself as to the apparent authenticity” on reasonable grounds, they are still obliged to check such apparent authenticity, in a way consistent with the industry practices and with “the due care and caution that can be expected of a reasonable bank employee in charge of the L/C business with necessary expertise and common sense”. The SWIFT message system is adopted as an international standard language by banks to exchange data with each other, and also serves as the main tool to issue credits in an electronic way; therefore, verifying the authenticity of credits by sending encrypted SWIFT messages should be recognized as a reasonable way to examine the apparent authenticity of the credits. Such messages are usually composed of many abbreviations, which often leads to ambiguity. In that case, a reasonable interpretation should be made from the perspective of advising banks in combination with the purpose and background of these messages, and the understanding of the same message by other banks may also be referred to determine whether the understanding of the advising bank is reasonable. The Court in this case, exercised judicial discretion in response to the dispute over the apparent authenticity examination obligation of advising banks, provided a useful guide for the apparent authenticity examination practice by advising banks, thus guarded the sound development of the international credit business. 随着一带一路倡议持续推进以及我国对外开放步伐不断加快,作为跨境交易支付重要手段的国际信用证业务,将伴随跨境交易规模的扩大而增多。相较UCP500而言,UCP600就信用证通知不再使用“合理审慎”的表述,在实践中引发了“通知行是否仍需审核以及如何审核信用证表面真实性”的争论,本案即为其中的典型代表。由于UCP600要求通知行“确信表面真实性”基于合理理由,因此其仍负有相应的审核义务,审核的方式应当符合行业惯例,同时尽到“一个理性银行信用证业务人员运用与其专业知识及普通常识能够做到的注意和谨慎”。SWIFT电文系统是国际银行间数据交换的标准语言,也是电开信用证的最主要方式,因此以加密SWIFT电文求证信用证的真实性属于合理的审核方式。电文传输常使用省略语,难免会发生歧义,此时需以通知行视角为出发点,结合发文目的和背景作合理解释。同一信用证业务中的其他银行对同一电文的理解,可以横向比较通知行的理解是否合理。本案裁判所阐释的司法裁量原则,回应了信用证实务中关于通知行审核义务的争论,为通知行规范审核行为提供了有益借鉴,为国际信用证业务的健康发展提供了良好的司法保障。
     
     
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