Bank Guarantees in International Trade

Name: Bank Guarantees in International Trade | The Law and Practice of Independent (First Demand) Guarantees and Standby Letters of Credit in Civil Law and Common Law Jurisdictions
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The Law and Practice of Independent (First Demand) Guarantees and Standby Letters of Credit in Civil Law and Common Law Jurisdictions

Roeland F. Bertrams(Autor*in)

Kluwer Law International (Verlag)

4. Auflage

Erschienen am 6. Januar 2013

648 Seiten

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Beschreibung

For decades, this remarkable book - now in its updated fourth edition - has served practitioners in international trade and banking law as a thorough 'codification' of the law and practice of bank guarantees. The new edition has been thoroughly revised, updated, and amended in the light of new developments in the law and changing patterns in practice. Bertrams uses case law, arbitral decisions, and legal writing from five European jurisdictions - The Netherlands, Germany, France, Belgium, and England - to build an analysis of how the practical applications of bank guarantees have established a pattern of law. The new edition takes into account all legal and arbitral decisions and relevant legal writing through 2012 from these countries, as well from other European countries and the United States. Written from a transnational perspective, Bank Guarantees in International Trade can be used in both civil and common law jurisdictions and it has been cited as an authoritative source of case law in several jurisdictions from each system. With reference throughout to the effect and significance of the Uniform Rules for Demand Guarantees (URDG) of the International Chamber of Commerce, International Standby Practices (ISP), and the UNCITRAL Convention on Independent Guarantees and Stand-by Letters of Credit, the author continuously elucidates the way guarantees function in actual practice and the numerous practical aspects and issues to which they give rise. The analysis covers the following subjects and much else: types of guarantee (tender, performance, maintenance, repayment, retention); payment mechanisms (first demand, third-party documents, arbitral or court decision); risks and negotiations, drafting and clauses; bank guarantees as a financial service, the bank's perspective; direct and indirect guarantees, counter-guarantees; formation, enforceability of expiry dates, assignment and transfer; demand for payment and the rule of strict compliance; fraud and restraining orders; applicable law and jurisdiction; reference to URDG 2010 revision and ISP98 throughout the text. In addition to his thorough coverage of law and legal writing, the author has drawn on intensive contacts with the banking community, construction firms, export credit insurance companies, and local lawyers. His insight into 'the daily life' of the world of independent (first demand) guarantees and the practices, difficulties, and peculiarities in a great number of countries and regions, including the Middle East and North Africa, cannot be matched in any other source. Bank guarantees can present major difficulties, and this book is the lawyer's best guide in any situation likely to arise. As a comprehensive study of the legal and practical aspects of bank guarantees and standby letters of credit, it offers practitioners in international trade law the most complete analysis of banking law in the field. In its wealth of practical detail, it is unlikely to be surpassed.

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Inhalt

Intro
TITLE
COPYRIGHT
TABLE OF CONTENTS
PREFACE TO THE FOURTH EDITION
ABOUT THIS BOOK
ABOUT THE AUTHOR
DETAILED TOC
LIST OF ABBREVIATIONS
CHAPTER 1 INTRODUCTION
1.1 General
1.2 Terminology. Guarantee = independent guarantee
1.3 The Origins of the American Standby Letter of Credit
1.4 The American standby letter of credit is similar to the European independent guarantee
1.5 Issuers of guarantees
1.6 Countries and regions covered in this study. Practice
1.7 Method. Uniformity of the law
CHAPTER 2 OVERVIEW
2.1 Independence
2.2 Functions
2.3 Structure and terminology
2.3.1 Guarantee as a multi-party relationship. Interdependence
2.3.2 Direct guarantee, 'principal debtor', 'applicant' and ' instructing party'
2.3.3 Direct guarantee and advising bank
2.3.4 Indirect guarantee. First/instructing bank and second/issuing bank. Primary guarantee
2.3.5 The American standby letter of credit as a counter-guarantee
2.3.6 Confirmed guarantee
2.3.7 Personal security for reimbursement by the applicant or instructing party
2.3.8 Syndicated guarantees
2.3.9 Back-to-back guarantees
2.3.10 Loans and risk participation through guarantees
2.3.11 Transfer of credit risk by the bank
2.4. Sources of law
2.4.1 The UNCITRAL Convention on independent guarantees and stand-by letters of credit
2.4.2 Developments in uniform law. URDG of the International Chamber of Commerce
ISP98
2.4.3 Main features of the URDG and ISP98
2.4.4 National laws and regulations
CHAPTER 3 TYPES OF GUARANTEE
3.1 General
3.2 Tender guarantees
3.3 Performance guarantees
3.4 Maintenance (or warranty) guarantees
3.5 Repayment (or advance payment) guarantees
3.6 Retention guarantees
3.7 Payment guarantees and standby letters of credit
3.8 Customs guarantees. EC repayment guarantees
3.9 Judicial guarantees
3.10 Other types
3.11 Autonomous guarantees. The German Garantievertrag. Indemnity
CHAPTER 4 CONDITIONS OF PAYMENT (PAYMENT MECHANISM)
4.1 Introduction. Main types. Documentary nature
4.2 Payment on first demand
4.2.1 General
4.2.2 'On simple demand'. Statement of default
prior notice of default and grace period
4.2.3 Article 15(a) URDG and statement of default
4.2.4 Reversal of risks
4.2.5 Words and phrases. Construction of the instrument
4.2.6 Origins
4.2.7 'First justified demand'
4.2.8 'In the event of default'. Effektivklauseln
4.3 Payment upon submission of third-party documents
4.3.1 Terminology and nature
4.3.2 Documents to be submitted by the beneficiary
4.3.3 Documents to be submitted by the applicant
4.3.4 Evaluation
4.4 Payment upon submission of an arbitral or court decision
4.4.1 General
4.4.2 Comparison with suretyship. Advantages for banks
4.4.3 Additional clauses
4.5 Suretyship payable on first demand. conclusive evidence clauses
4.5.1 'Suretyship' payable on first demand. France, the Netherlands and Belgium
4.5.2 Suretyship payable on first demand. Germany
4.5.3 Germany. Differences between a suretyship payable on first demand and a first demand guarantee
4.5.4 Conclusive evidence clauses. United Kingdom
CHAPTER 5 LEGAL NATURE
5.1 Subsumptions and comparisons with traditional concepts
5.2 Contract sui generis
5.3 Independent guarantees compared with documentary credits and suretyship
5.4 Domestic first demand guarantees
CHAPTER 6 PARTIES TO THE UNDERLYING RELATIONSHIP
6.1 Allocation of risks
6.1.1 From the viewpoint of the beneficiary
6.1.2 First demand guarantee from the viewpoint of the applicant, 'pay first, argue later'
6.1.3 Recovery after payment
6.2 Negotiations
6.2.1 General
6.2.2 Direct/indirect guarantees
6.2.3 Protective clauses in the guarantee and counter-balancing provisions in the underlying contract
6.2.4 Even-handedness of a first demand guarantee
contractual relationship as a whole
CHAPTER 7 ROLE AND POSITION OF THE BANK
7.1 Issuing guarantees as a financial service
7.2 The bank's interest in independence
7.3 The bank's interest in the terms and conditions of the guarantee
documents
7.4 Factors influencing (non-)acceptance of the request
CHAPTER 8 DRAFTING AND CLAUSES
8.1 Interests of the parties
documentary nature
8.2 Drafting of the text, patterns and development
8.2.1 Drafting
8.2.2 Patterns and development
8.3 Reference to the Underlying Relationship
Consideration
8.3.1 Reference to the underlying relationship
8.3.2 Consideration
8.4 Beneficiary. creditor's bank as beneficiary
8.5 Conditions Precedent
8.5.1 Introduction
8.5.2 Performance guarantees
8.5.3 Standby letters of credit (payment guarantees)
8.5.4 Repayment, retention and maintenance guarantees
8.6 Period of validity
8.6.1 Introduction
8.6.2 Expiry date - calendar date, expiry event, or a combination
8.6.3 Extension clause
8.6.4 Commencement date
8.6.5 Return of the guarantee document upon expiry
8.6.6 Guarantees payable upon a court or arbitral decision
bifurcated system
absence of expiry date
continuing guarantee
8.7 Amount, currency
8.8 Reduction and increase of the maximum amount, revolving guarantee
8.9 Amendments to the secured contract
8.10 Grace period
8.11 Time of payment
interest
8.12 Assignment
pledge
transfer
8.13 Set-off
8.14 Non-recourse or subordination clause
8.15 Jurisdiction, applicable law
CHAPTER 9 RELATIONSHIP BETWEEN APPLICANT - FIRST INSTRUCTING BANK - SECOND ISSUING BANK. INTRODUCTION AND STRUCTURE
9.1 Direct guarantee
9.2 Direct guarantee and advising bank
9.3 Indirect guarantee
9.4 The American standby letter of credit as counter-guarantee
9.5 Relationship between applicant - first instructing bank - second issuing bank and the guarantee. independence from mandate
CHAPTER 10 RELATIONSHIP BETWEEN APPLICANT AND BANK. DIRECT GUARANTEE
10.1 Introduction
10.2 Legal nature
10.2.1 Mandate
10.2.2 Applicant - bank and documentary credit
10.2.3 Main features: instructions, duty of examination, reimbursement
10.3 Counter-guarantee
10.3.1 Counter-guarantee by the applicant
10.3.2 Instructions and counter-guarantee by a party other than the principal debtor
affiliated company as instructing party
10.4 Security for reimbursement
10.4.1 Security
10.4.2 Release and prolongation
10.5 Commission
10.6 Incidental expenses, litigation and costs
10.6.1 Incidental expenses
10.6.2 Litigation and costs. Risks
10.7 Instructions by the applicant. Adherence to the instructions. Review and acceptance by the bank
10.7.1 The principle of strict compliance, direct guarantees
10.7.2 Indirect guarantees
10.7.3 Review by the bank. Duty of bank and applicant in general
10.7.4 Imprecise and incomplete instructions
10.7.5 Advice to the applicant
10.7.6 Acceptance and refusal by the bank
10.8 Bank's duty of examination with respect to compliance with the terms and conditions of the guarantee
10.8.1 Introduction. Relationship bank-beneficiary and bank-applicant
10.8.2 Compliance with all positive conditions, fulfilment of negative conditions, non stipulated documents
10.8.3 Formal compliance
10.8.4 Strict compliance
10.8.5 Relaxation of the principle of strict compliance? Substantial compliance?
10.8.6 Inconsistencies
10.8.7 Reasonable care, discretion
10.8.8 Reasonable care, discretion. Third-party documents
10.8.9 Reasonable care, discretion. Non-documentary conditions of payment. Effektivklauseln
10.8.10 Limitations of liability, notification to applicant
10.9 Bank's duty of notification of the demand for payment
10.9.1 Significance of prior notification before payment
10.9.2 Opinions differ, the law at present, notice injunctions
10.9.3 Arguments pro and contra a duty of prior notification
10.9.4 Articles 16 and 22 URDG, Rule 3.10 ISP98: notification and transmission of documents
10.10 Recourse of the bank against the applicant. Special risks
10.11 Claim for reimbursement by principal debtor ex subrogation and unjust enrichment
CHAPTER 11 RELATIONSHIP APPLICANT - FIRST INSTRUCTING BANK - SECOND ISSUING BANK. INDIRECT GUARANTEE. COUNTER-GUARANTEE
11.1 Applicant-first instructing bank-second issuing bank
11.1.1 Introduction. Structure and terminology
11.1.2 First instructing bank - second issuing bank. Legal nature. Mandate
11.1.3 Various aspects
11.1.4 Instructions for the issuance of the primary guarantee. Advice
11.1.4.1 Instructions and adherence
imprecise instructions
11.1.4.2 Errors in the transmission of the instructions. Issuing bank's failure to carry out the instructions
11.1.4.3 Advice with respect to foreign local law and practices
11.1.5 Second issuing bank's duty of examination with respect to compliance
11.2 The counter-guarantee
11.2.1 General
11.2.2 Legal nature and effect of counter-guarantees
11.2.2.1 Introduction. The issue of independence between the primary guarantee and counter-guarantee
11.2.2.2 The view that the counter-guarantee is independent of the primary guarantee and operates as an ordinary independent guarantee. France and Belgium
11.2.2.3. The view that the counter-guarantee is independent of the mandate and operates as an ordinary independent guarantee. Germany
11.2.2.4 The counter-guarantee is independent of the underlying relationship
11.2.2.5 The view of this study. The counter-guarantee is an independent indemnity and operates in a manner similar to an ordinary independent guarantee, subject to certain limitations. Summary
11.2.2.6 The independent nature of counter-guarantees and its limits in case law.Introduction
11.2.2.7 Cases decided on the basis of independence. Fulfilment of the terms of the primary guarantee not considered. No evidence of fault by the issuing bank
11.2.2.8 Cases decided on the basis of independence. Fulfilment of the terms of the primary guarantee considered. No evidence of fault by the issuing bank
11.2.2.9 Cases decided on the basis of independence. Terms of the primary guarantee not fulfilled. Claim under the counter-guarantee rejected.
11.2.2.10 Other cases. Fulfilment of the terms of the primary guarantee considered. No evidence of fault by the issuing bank
11.2.2.11 Other cases. Terms of the primary guarantee not fulfilled. Claim under the counter-guarantee rejected.
11.2.2.12 The limits and exception to the independence of counter-guarantees in relation to the primary guarantee. Conclusions in respect of case law.
11.3 The instructing bank owes no general duty to the applicant to investigate fulfilment of the terms of the primary guarantee
11.3.1 Introduction
11.3.2 No general duty
11.3.3 Banking practice
11.3.4 Limited duty to assist the applicant
11.3.5 If the counter-guarantee prescribes a statement from the issuing bank and the transmission of documents. Articles 15(b) and 22 URDG
11.4 Clauses in the counter-guarantee
11.4.1 Clauses relating to payment
11.4.2 Validity period, expiry date
11.4.3 Amount and currency, transfer
11.4.4 Choice of law, jurisdiction
11.4.5 Garnishment ('Kuwaiti') clauses
11.5 Instructing bank's duty to inform the applicant of the content of the counter-guarantee
CHAPTER 12 OTHER ASPECTS OF THE BANK GUARANTEE
12.1 The principle of independence re-examined
12.1.1 Recapitulation
12.1.1.1 Introduction
12.1.1.2 Between bank and beneficiary
12.1.1.3 Between applicant and bank, indirect guarantee and counter-guarantee
12.1.1.4 Between parties to the underlying relationship
12.1.2 Independence and functional interdependence
12.1.2.1 Synthesis instead of antithesis
12.1.2.2 Antithesis instead of synthesis
12.1.3 Independence as an abstract concept and as a matter of construction. Relativeness and evolution
12.2 Formation
12.2.1 Unilateral engagement or consensual contract. Formation
12.2.2 Rejection, counter-proposals
12.2.3 Requirements as to form
12.2.4 Transmission, authenticity, authority, operative instrument
12.2.5 Commencement, taking effect
12.2.6 Amendments, irrevocability
12.2.7 Guarantees issued by private individuals. Duty to advise guarantor
12.2.8 Germany. Unenforceability of suretyship payable on first demand pursuant to general terms and conditions
12.3 Construction
12.3.1 Independent guarantee or accessory suretyship. Suggestions for some general guidelines
12.3.1.1 Introduction
12.3.1.2 Drafting technique in historical perspective, weighing of terms and phrases. 'On (first) demand' in English law instruments. 'Effektivklauseln'
12.3.1.3 Specification of the means of proof
documentary proof
statements by beneficiary
12.3.1.4 Reference to the underlying relationship
12.3.1.5 Reference to international usage
12.3.1.6 Resort to general (statutory) rules for construction
presumptions
12.3.1.7 Special rules for banks?
12.3.1.8 Special rules for domestic cases and for 'guarantees' issued by private individuals or non-financial institutions?
12.3.2 Independent guarantee or accessory suretyship. Overview of case law
12.3.2.1 Introduction
12.3.2.2 'First demand' clause. Held: suretyship.
12.3.2.3 No 'first demand' clause. Held: first demand guarantee
12.3.2.4 Payment on 'first justified demand'
12.3.2.5 Held: independent (first demand) guarantee
12.3.2.6 Held: first demand suretyship. Germany
12.3.2.7 Held: suretyship
12.3.3 Construction of terms and clauses in independent guarantees and counter-indemnities (counter-guarantees)
12.3.3.1 Independent guarantees
12.3.3.2 Indemnity ('counter-guarantee') by instructing bank to issuing bank in the case of an indirect guarantee
12.4 Period of Validity. Law and practice
12.4.1 Significance of expiry date. The risk of the 'perpetual' (counter-) guarantee
12.4.2 Extension clauses
12.4.3 'Extend or pay' requests
12.4.3.1 Practice and motives
12.4.3.2 Legal position
12.4.3.3 Tender guarantees, 'extend or withdraw' requests
12.4.3.4 Applicant and bank. Who is to decide? Article 23 URDG
12.4.3.5 Indirect guarantee and 'extend or pay' requests
12.4.4 'Hold for value' requests
12.4.4.1 Practice and motives
12.4.4.2 Legal characterisation
12.4.4.3 Implications
12.4.5 Enforceability of expiry dates
12.4.5.1 General trend towards enforceability
12.4.5.2 Enforceability of expiry date in Syria
12.4.5.3 Expiry date enforceable
12.4.6 (No) statement of discharge. (Non-)Return of the guarantee document
12.4.6.1 Statement of discharge
12.4.6.2 Return of the guarantee document (only). Mistake. Fraudulent return
12.4.6.3 Non-return of the guarantee document. Legal significance
12.4.6.4 No statement of discharge in respect of the counter-guarantee. Primary guarantee expired
12.4.6.5 Initiatives by the applicant and instructing bank if the (counter-) guarantee document has not been returned or if no discharge has been given
12.4.7 Release of security furnished by the applicant, unblocking of the credit facility, release of the duty to pay commission. Discharge of the applicant's liability
12.4.7.1 Introduction
12.4.7.2 Direct guarantees
12.4.7.3 Indirect guarantees. Counter-guarantee contains expiry date
12.4.7.4 Indirect guarantees. Counter-guarantee valid until discharge. Release of security, unblocking of the credit facility
12.4.7.5 Indirect guarantees. Counter-guarantee valid until discharge. Release of the duty to pay commission
12.4.7.6 Discharge of applicant's liability
12.4.8 Termination as a result of payment and reduction clauses. Guarantees without expiry provisions
12.5 Assignment. Pledge
12.5.1 Meaning and significance of assignment
12.5.2 Contractual assignment
12.5.3 Effect of contractual assignment. Position of assignee
12.5.3.1 General
12.5.3.2 Case law
12.5.4 Assignment by operation of law
12.5.5 The effect of transfer of the secured contract
lease contracts
12.5.6 Pledge of the guarantee
12.6 Transfer of the guarantee
12.6.1 Transfer of the guarantee
back-to-back guarantees
12.6.2 Fraudulent trading schemes
CHAPTER 13 THE DEMAND FOR PAYMENT
13.1 General aspects
13.1.1 Percentages and their significance for the applicant
13.1.2 Bank's examination with respect to compliance with the terms and conditions of the guarantee. Summary
13.1.3 Direct and indirect guarantees. Applicable law
13.2 Call on the guarantee
13.2.1 The call
13.2.1.1 The guarantee must have been called
13.2.1.2 Who is entitled to call
identity of the person calling the guarantee
change of status
agency and power of attorney
13.2.1.3 Addressee and place of the call
13.2.1.4 Formal requirements
13.2.1.5 Has a proper request for payment been made?
13.2.2 The call must relate to the secured contract and/or obligation
13.2.2.1 General
13.2.2.2 Position of beneficiary, bank and applicant
13.2.3 Call on a first demand guarantee
13.2.3.1 Simple demand guarantees
13.2.3.2 Statement of default and other statements by the beneficiary
prior notices to applicant
13.2.3.3 Inconsistencies
13.2.3.4 Ambiguous texts and statements
'Effektivklauseln'
guarantees payable on 'first justified demand'
13.2.3.5 Documents from the applicant
13.2.4 Call on a guarantee requiring submission of third-party documents
13.2.4.1 Documents to be tendered by the beneficiary
13.2.4.2 Documents to be tendered by the applicant
13.2.5 Call on guarantee requiring submission of an arbitral or court decision
13.2.5.1 General
13.2.5.2 Validity of the arbitral or court decision
13.2.6 Other conditions and clauses
13.2.6.1 Conditions precedent
13.2.6.2 Clauses limiting or terminating the right to payment
13.2.6.3 Repayment guarantees and advance payment
guarantee in favour of applicant
13.2.6.4 Reduction clauses
13.2.7 Period of validity
13.2.7.1 Call must be made on or before the expiry date or before the expiry event
13.2.7.2 Significance and effect of expiry dates
independence and relationship with underlying contract
submission of statements and documents
discharge of restraining orders
13.2.7.3 Special problems. 'Extend or pay' requests, 'extension' requests, ambiguous requirement as to statements by the beneficiary
13.2.7.4 Commencement date
13.2.7.5 Expiry event
13.2.8 Amount and currency
13.2.8.1 Amount, partial and multiple demands
13.2.8.2 Demands for incorrect amounts
formulas in relation to (maximum) amount
13.2.8.3 Currency
13.2.9 Period of examination. Time of payment
13.2.10 Interest and damages for late payment
13.2.11 Procedures on non-compliance. Notice of rejection. Preclusion rule
13.2.12 Bank's defences
13.2.12.1 General. Judgment in summary proceedings and other procedural aspects
13.2.12.2 Set-off with bank's own counter-claims
13.2.12.3 Set-off with the bank's own counter-claims in the case of indirect guarantees
13.2.12.4 Set-off with counter-claims derived from the underlying relationship
assigned counter-claims
13.2.12.5 Set-off between banks
13.3 Call on the counter-guarantee
13.3.1 General
13.3.2 Statement from the issuing bank concerning the primary guarantee. Transmission of documents. Articles 15(b) and 22 URDG. Valid demand under the primary guarantee
13.3.3 Period of validity
13.3.4 Is a demand or actual payment under the primary guarantee a prerequisite?
13.3.5 Currency and date for determining the rate of exchange
13.4 The effect of un embargoes
13.5 Non-compliance and restraining orders
13.6 Recovery after payment. 'Pay first, argue later'. Final settlement
CHAPTER 14 THE CONCEPT OF FRAUD
14.1 Introduction
14.1.1 Significance
14.1.2 Procedural background
14.2 Plan of discussion
14.3 Comparative overview
14.3.1 Introduction
14.3.2 The Netherlands
14.3.2.1 Case law
14.3.2.2 Legal writing
14.3.3 Germany
14.3.3.1 Legal writing
14.3.3.2 Case law
14.3.4 France
14.3.4.1 Case law
14.3.4.2 Legal writing
14.3.5 Belgium
14.3.5.1 Case law
14.3.5.2 Legal writing
14.3.6 England
14.3.7 United States of America
14.3.8. Summary of the comparative overview, UNCITRAL Convention
14.4 Fraud and evidence of fraud. Some reflections
14.4.1 Fraud defined in relation to the nature and purpose of first demand guarantees as opposed to the domestic law general
14.4.2 Evidence of fraud
14.4.3 The notion of 'fraud'
14.5 Overview of possible types of fraud
14.5.1 Introduction
14.5.2 Lack of authority
14.5.3 Mistake, misrepresentation, economic duress, undue influence
14.5.4 Conditions precedent
14.5.4.1 General
14.5.4.2 Condition precedent and breach of contract by the beneficiary
14.5.5 Completion of the secured contract or obligation
14.5.5.1 General
14.5.5.2 Completion of the secured contract or obligation established
14.5.5.3 Completion of the secured contract or obligation not established
14.5.5.4 Applicant not liable for defects
14.5.5.5 Lapse of contractual warranty period
14.5.5.6 Applicant complies with the terms of a documentary credit
14.5.5.7 Non-payment by the beneficiary
14.5.5.8 Completion not yet due
14.5.6 Material breach of contract by the beneficiary
14.5.6.1 General
14.5.6.2 Material breach of contract not established
payment guarantees
14.5.6.3 Material breach of contract established
payment guarantees
14.5.6.4 Beneficiary's failure to furnish a documentary credit
14.5.6.5 Beneficiary makes performance by the applicant impossible
14.5.7 Force majeure
14.5.7.1 Force majeure not established
14.5.7.2 Force majeure established
14.5.7.3 Government measures, embargoes
14.5.7.4 Evaluation
14.5.8 Violation of public order
illegality
14.5.9 Termination, cancellation and avoidance of the secured contract
14.5.10 Beneficiary's cause of action is time-barred
14.5.11 The amount claimed is excessive
damages already assessed and/or paid
payment already made
14.5.12 The call does not relate to the secured contract or obligation, or is inspired by improper motives
14.5.13 Liquid counterclaims against beneficiary, set-off
14.5.14 Court or arbitral decision
14.5.15 Tender guarantees
14.5.16 Repayment, retention and maintenance guarantees
14.5.17 Beneficiary's statement is false. Third-party document is forged
14.5.18 Conclusion
14.5.19 Fraud: distinction between guarantees and documentary credits?
14.6 Fraud and summary judgment against the bank. Direct and indirect guarantees
CHAPTER 15 FRAUD AND THE POSITION OF THE BANK. BANK'S LIABILITY IN 'AFTER-PAYMENT' CASES
15.1 Direct guarantee
15.1.1 If fraud is evident to the bank, it is liable to the applicant when it pays under the guarantee
15.1.2 Distinction between 'before-' and 'after-payment' cases. Extent of the bank's duty and potential liability
15.1.3 Bank's knowledge of the beneficiary's fraud. The test
15.1.4 Appraisal and suggestions for an alternative set of rules
15.2 Indirect guarantee
15.2.1 Issuing bank's liability
15.2.2 Instructing bank's liability
15.3 Banking practice
CHAPTER 16 FRAUD AND RESTRAINING ORDERS
16.1 Introduction
16.1.1 General
16.2 Applications for restraining orders against the beneficiary, direct guarantee
16.2.1 On the basis of fraud
16.2.2 On the basis of express terms in the underlying agreement between applicant and beneficiary
16.3 Applications for restraining orders against the bank, direct guarantee.
16.3.1 Must the beneficiary's fraud be evident to the bank? Cause of action. Are restraining orders against the bank permissible?
16.3.1.1 Introduction
16.3.1.2 England
16.3.1.3 Germany
16.3.1.4 The Netherlands
16.3.1.5 France and Belgium
16.3.1.6 United States of America
16.3.1.7 UNCITRAL Convention
16.3.1.8 Summary and evaluation
16.3.1.9 Applications for restraining orders against beneficiary ánd bank is the better procedure
16.4 Applications for restraining orders in respect of indirect guarantees and counter-guarantees
16.4.1 General
16.4.1.1 Restraining orders against instructing and/or issuing bank and/or beneficiary. Cause of action
16.4.1.2 Beneficiary's fraud and foreign applicable law
16.4.2 Restraining orders against the instructing and/or issuing bank in 'after-payment' cases
16.4.2.1 Fraud by the issuing bank. Issuing bank's knowledge of beneficiary's fraud
16.4.2.2 Issuing bank's knowledge of the beneficiary's fraud. The test
16.4.2.3 Identification
16.4.3 Restraining orders against the instructing and/or issuing bank and/or beneficiary in 'before-payment' cases
16.4.3.1 Introduction
16.4.3.2 Applications for orders restraining the issuing bank from paying under the primary guarantee and for orders restraining the beneficiary from demanding or receiving payment under the primary guarantee
16.4.3.3 Applications for orders restraining the instructing bank from paying under the counter-guarantee and for orders restraining the issuing bank from demanding or receiving payment under the counter-guarantee
16.4.3.4 The limited effect of restraining orders. Non-recognition and contrary decisions by the foreign court
16.4.4 The limited effect of restraining orders. Inter-bank relationship. Recourse against applicant
16.5 Other Aspects Concerning Restraining Orders
16.5.1 Restraining orders and the commercial viability of guarantees
16.5.2 Hardship for the applicant to litigate in the beneficiary's country
16.5.3 Restraining orders and the reputation of the bank
16.5.4 Bank's duty to defer payment if the applicant applies for restraining orders?
CHAPTER 17 CONSERVATORY ATTACHMENT AND THE UK FREEZING (MAREVA) INJUNCTION
17.1 Introduction
17.2 Conservatory attachment is incompatible with the agreement between applicant and beneficiary in the event of non-established fraud
17.3 Conservatory attachment in the event of established fraud
17.4 Conservatory attachment and counterclaims ex secured contract. Set-off
17.5 Conservatory attachment and counterclaims ex other contracts. Set-off
17.6 Conservatory attachment in respect of the beneficiary's accounts after payment
17.7 Conservatory attachment and indirect guarantees
17.8 Conservatory attachment does not prohibit the bank from paying into a blocked account and from debiting the applicant's accounts
17.9 The U.K. freezing (Mareva) injunction
CHAPTER 18 JURISDICTION, APPLICABLE LAW AND RECOGNITION OF FOREIGN JUDGMENTS
18.1 Jurisdiction
18.1.1 Introduction
18.1.2 Proceedings between the parties to the (counter-) guarantee
18.1.3 Proceedings initiated by the applicant. Direct guarantee
18.1.4 Proceedings initiated by the applicant. Indirect guarantee
18.2 Applicable law
18.2.1 (In)significance of private international law
18.2.2 General rules of private international law. The EU Rome-l Regulation
18.2.3 Relationship applicant/bank
18.2.4 Relationship bank/beneficiary
18.2.5 Relationship instructing bank/issuing bank in the case of indirect guarantees. Counter-guarantee
18.2.6 Public mandatory law
18.3 Recognition of foreign judgments
CHAPTER 19 BANK GUARANTEES AND CONSTRUCTION CONTRACTS
19.1 First demand guarantees as financing instruments
19.2 Disputes revolve on the payment scheme. Call as ultimum remedium
19.3 Joint ventures
19.4 Subguarantees from subcontractors. Subguarantees distinguished from counter-guarantees
19.5 Subguarantees and clauses
special risks
UNIFORM RULES FOR DEMAND GUARANTEES (URDG)ICC PUBLICATION NO. 758 (2D REVISED EDITION 2010)
INTERNATIONAL STANDBY PRACTICES (ISP98)ICC PUBLICATION NO. 590
UNCITRAL CONVENTION ON INDEPENDENT GUARANTEES AND STAND-BY LETTERS OF CREDIT
BIBLIOGRAPHY
TABLE OF CASES
INDEX

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