eUCP VERSION 2.O ARTICLE e12

Chào các bạn.

Chúng ta bắt đầu tuần mới với eUCP Version 2.0 Điều e12 nhé.

Điều e12 quy định về trường hợp chứng từ điện tử xuất trình bị lỗi, cụ thể như sau:

a. Nếu ngân hàng được chỉ định hành động theo sự chỉ định hay không, ngân hàng xác nhận, nếu có, hoặc ngân hàng phát hành nhận được một chứng từ điện tử bị lỗi dữ liệu, ngân hàng đó có thể thông báo cho người xuất trình biết và có thể yêu cầu xuất trình lại.

b. Nếu có yêu cầu như vậy thì:

i. thời hạn kiểm tra chứng từ bị đình hoãn và bắt đầu lại khi chứng từ điện tử được xuất trình lại; và

ii. nếu ngân hàng được chỉ định không phải là ngân hàng xác nhận thì phải thông báo cho ngân hàng xác nhận và ngân hàng phát hành biết về việc chứng từ điện tử được yêu cầu xuất trình lại và thông báo cho ngân hàng đó về việc đình hoãn kiểm tra; nhưng

iii. nếu chứng từ điện tử đó không được xuất trình lại trong vòng 30 ngày theo lịch, hoặc vào ngày hoặc trước ngày chấm dứt hiệu lực và/hoặc ngày cuối cùng để xuất trình, tùy theo trường hợp nào xảy ra trước, ngân hàng có thể xem chứng từ điện tử như không được xuất trình.

Các bạn nhớ đọc thêm phần COMMENTARY để biết thêm thế nào chứng từ điện tử bị lỗi (corruption), yêu cầu xuất trình lại như thế nào, thời hạn kiểm tra chứng từ…

Kind regards,

Mr. Old Man
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ARTICLE e12

DATA CORRUPTION OF AN ELECTRONIC RECORD

a. If an electronic record that has been received by a nominated bank acting on its nomination or not, confirming bank, if any, or the issuing bank appears to have been affected by a data corruption, the bank may inform the presenter and may request it to re-presented.

b. If a bank makes such a request:

i. the time for examination is suspended and resumes when the electronic record is represented; and

ii. if the nominated bank is not a confirming bank, it must provide any confirming bank and the issuing bank with notice of the request for the electronic record to be re-presented and inform it of the suspension; but

iii. if the same electronic record is not re-presented within 30 calendar days, or on or before the expiry date and/or last day for presentation, whichever occurs first, the bank may treat the electronic record as not presented.

CHANGES FROM eUCP VERSION 1.1
• Title of article amended for preciseness
• Clarification of the role of the banks • Minor structural changes

COMMENTARY
There is no rule in UCP 600 for paper documents that are lost or rendered unreadable by a bank after they have been received. Because most banks have procedures in place that minimise the consequences of such loss, there is no perceived need for such a rule. These procedures involve refusing payment based on discrepancies in the documents that are present, requesting a substitute document, or indemnifying the applicant for any harm that may result from the lost document.

Whilst this works in the paper world owing to an understanding of the risks, there is not yet a similar comprehension in the electronic world. Accordingly, article e12 offers a method by which corrupted data may be re-presented.

A similarity can be recognised with the paper world, in that it is not unusual to approach the presenter for substitute paper documents. The process outlined by article e12 should prove beneficial to all parties, bearing in mind that it supports an efficient data substitution method.

The advantage of eUCP article e12 is that it operates without regard to fault or negligence and avoids entirely the difficult questions of liability and proof inherent in such concepts. As a result, it balances the interests of the bank and the presenter while extending the obligation of the bank and imposing a limited additional duty on the presenter in order to achieve a practical and relatively straightforward solution to an otherwise potentially burdensome problem.

It is worth noting that the provisions of this article are a matter of recommendation and optional only. This approach need not necessarily be utilised by a bank, and a bank remains free to take any other measures they may consider to be necessary in order to mitigate any perceived losses due to the corruption of data while the record is within its control.

If a bank elects to exercise its rights under eUCP article e12, it must deliver a request to the presenter and give notice to any other bank that is obligated under the credit. In addition, it should notify the beneficiary if the presenter is not the beneficiary. The notice to the presenter suspends the time for examination, which resumes when the bank receives the substituted data. The replacement of the data is not a new presentation and any deadlines are calculated from the original presentation date, which will have taken place on the receipt of the notice of completeness.

eUCP article e12 is based on the assumption that all electronic records are replaceable.

AFTER PRESENTATION
It must be clearly noted that this article only applies to the data corruption of an electronic record subsequent to presentation. Should a problem exist with an electronic record before presentation, this can only be the responsibility of the presenter to fix.

CORRUPTION
Neither the eUCP nor article e12 define ‘corruption’. The term is intended to encompass any distortion or loss of data that renders the electronic record as it was presented unreadable in whole or part due to the data having become scrambled in an unrecoverable manner.

ELECTRONIC RECORDS
Although the eUCP permits mixed presentations of paper documents and electronic records, eUCP article e12 relates only to electronic records and not the loss or destruction of paper documents.

NOMINATED BANKS
By its terms, eUCP article e12 is available to any bank nominated in an eUCP credit. However, in the event that a bank other than the issuing or confirming bank invokes the approach, sub-article e12 (b) (ii) requires that notice of the request for a substituted document be given to the issuing bank and any confirming bank.

Although a nominated bank is not obligated to examine documents or to act pursuant to its nomination under UCP 600 sub-article 12 (a) (Nomination), the election to invoke eUCP article e12 would signify an election to so act and require that the bank examine the documents under the rules of UCP 600 and act according to its nomination should they comply. Otherwise, the nominated bank will be responsible to the presenter for the lost data.

RE-PRESENTED
eUCP article e12 uses the term ‘re-presented’. As stated in eUCP sub-article 3 (b) (viii) this term mean, ‘to substitute or replace an electronic record already presented.’

The term is also used in documentary credit practice to characterise the action of the beneficiary in making a subsequent presentation to cure a discrepancy in a prior presentation. The two actions should not be confused.

Under the eUCP, the re-presentation is merely the replacement of a document already presented and its impact relates back to when it was originally presented; whereas when a non-conforming presentation is being cured by re-presentation, it takes effect as of the time of receipt of the representation.

This article indicates that the request for replacement is to be sent to the presenter of the electronic record. In order to reflect good practice, it would also be optimal, in cases where the presenter is not the beneficiary, for notice to also be given to the beneficiary. This may help to accelerate matters to the benefit of all.

METHOD FOR RE-PRESENTATION REQUEST
Although eUCP article e12 does not expressly state when or how the request for re-presentation be made, good practice in light of UCP 600 sub-article 16 (d) (Discrepant Documents, Waiver and Notice) would suggest that the request be made in the same manner as a notice of refusal, namely by telecommunication if available, and, if not, by other expeditious means and without delay once the corruption is discovered.

TIME FOR EXAMINATION
eUCP sub-article e12 (b) (i) provides that the invocation of eUCP article e12 suspends the time for examination and giving any notice of refusal under UCP 600 articles 14 (Standard for Examination of Documents) and 16 (Discrepant Documents, Waiver and Notice).

Although the corruption of the data occurred when the electronic record was in the control of the bank, a request for replacement under eUCP article e12 has serious consequences for the beneficiary if the record is not replaced. eUCP sub-article e12 (b) (iii) provides that the failure to replace data within 30 calendar days after a request pursuant to eUCP article e12 has been made is deemed to be a failure to present the electronic record. Because of the seriousness of this consequence for the beneficiary, the time period is sufficiently reasonable to permit replacement, and banks should be cautious about reducing this period, which may raise questions about its reasonableness.