eUCP VERSION 2.0 ARTICLE e13

Chào các bạn.

Hôm nay chung ta tiếp tục nghiên cứu eUCP với Điều e13 – điều áp chót của eUCP. Điều e13 quy định về các miễn trách bổ sung (ngoài các miễn trách theo UCP 600) đối với việc xuất trình chứng từ điện tử theo eUCP.

Điều e13 quy định như sau:

a. Bằng cách xác thực tính chân thực bề ngoài của chứng từ điện tử, ngân hàng được miễn trách nhiệm đối với việc nhận diện người gửi, nguồn thông tin, hoặc tính trọn vẹn và không thay đổi của chứng từ điện tử được nhận bằng cách sử dụng hệ thống xử lý dữ liệu để nhận, xác thực, và nhận biết các chứng từ điện tử.

b. Ngân hàng được miễn trách đối với các hậu quả phát sinh do sự không sẵn sàng của hệ thống xử lý dữ liệu không phải là hệ thống xử lý dữ liệu của riêng ngân hàng đó.

Các bạn đọc thêm phần COMMENTARY để nắm thêm các trường hợp ngân hàng miễn trách theo UCP 600 và các quy định liên quan đến nguyên tắc độc lập của UCP 600.

Kind regards,

Mr. Old Man
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ARTICLE e13
ADDITIONAL DISCLAIMER OF LIABILITY FOR PRESENTATION OF ELECTRONIC RECORDS UNDER eUCP

a. By satisfying itself as to the apparent authenticity of an electronic record, a bank assumes no liability for the identity of the sender, source of the information, or its complete and unaltered character other than that which is apparent in the electronic record received by the use of a data processing system for the receipt, authentication, and identification of electronic records.

b. A bank assumes no liability or responsibility for the consequences arising out of the unavailability of a data processing system other than its own.

CHANGES FROM eUCP VERSION 1.1
• Minor structural changes
• Reference to a ‘data processing system’
• Banks are liable for their own data processing systems

COMMENTARY
A disclaimer is a device by which risk is shifted from one entity to another. Where the disclaimer reflects the reasonable expectations of an industry, it is typically enforceable under applicable local law, even where it is stated in rules of practice as opposed to a bilateral contract. Due to the limited role of banks in documentary credit practice, disclaimers have been used to limit their liability from the actions or omissions of others.

Disclaimers have sometimes been asserted to excuse the responsibility of a bank for its own negligence. While modern commercial law allows parties to allocate the risk of negligence up to, but not including, so-called gross negligence or wilful disregard for the consequences of one’s action or omission, most systems of local law require more specific and detailed provisions than those contained in UCP 600 to achieve this result. The liabilities disclaimed in the eUCP and UCP 600 are the result of external systemic or third party actions, inactions, or risk.

eUCP DISCLAIMER
eUCP article e13 disclaims banks’ liability for any divergence from the realities represented in authenticated electronic records. Its effect is cumulative with those of UCP 600 Articles 34 (Disclaimer on Effectiveness of Documents), 35 (Disclaimer on Transmission and Translation), and 37 (Disclaimer for Acts of an Instructed Party), and emphasises the continued applicability of the independence principle reflected in various articles of UCP 600 with respect to electronic presentations under the eUCP.

UCP 600 DISCLAIMERS
UCP 600 contains several disclaimers that are relevant to an eUCP credit. eUCP article e13 by its title indicates that its disclaimer is additional to those contained in UCP 600.

UCP 600 article 34 (Disclaimer on Effectiveness of Documents) Disclaims banks’ liability for documents presented, the representations they contain, what they represent, and the actions or omissions of persons who present or issue them. This article is the linchpin in the UCP 600 formulation of the independence principle. It disclaims any liability or responsibility for the documents presented, their legality or legal effect, the representations contained in them, or the persons who made them. Under eUCP sub-article e3 (a) (ii) (Definitions), the term ‘documents’ would apply to an electronic record, making this disclaimer applicable to both paper documents and electronic records under the eUCP.
UCP 600 article 35 (Disclaimer on Transmission and Translation) Disclaims liability and responsibility for problems in forwarding data, including problems with telecommunication such as delay, mutilation, or error. This disclaimer disclaims any liability for the actions, failures, or omissions of third parties or their systems of transmission of messages. It would not excuse liability for consequences arising from the bank’s own systems, whether maintained by the bank directly or through the agency of a third party.

UCP 600 article 37 (Disclaimer for Acts of an Instructed Party) Disclaims the responsibility of instructing banks for the failure of other banks to carry out the applicant’s instructions, even where the other bank is selected at the initiative of the instructing bank. It also provides that the applicant is bound by and obligated to indemnify banks against the consequences of the application of foreign law and usages, shifting this responsibility to the applicant. Under the eUCP, this provision would apply, not only to documentary credit law and commercial law in general, but also to the law of electronic commerce and the impact of local law on the eUCP.

INDEPENDENCE PRINCIPLE
Other provisions in UCP 600 detail aspects of the independence principle. They include:
• article 4 (Credits v. Contracts);
• article 5 (Documents v. Goods/Services or Performance);
• article 7 (Issuing Bank Undertaking);
• article 8 (Confirming Bank Undertaking;
• sub-article 14 (a) (Standard for Examination of Documents);
• sub-articles 16 (a) and (b) (Discrepant Documents, Waiver and Notice). While no one article of UCP 600 alone articulates the independence principle in a systematic manner, the cumulative effect of these articles – taken together with UCP 600 article 34 (Disclaimer on Effectiveness of Documents), article 35 (Disclaimer on Transmission and Translation) and article 37 (Disclaimer for Acts of an Instructed Party) – provide an adequate treatment of the doctrine.

NEED FOR eUCP ARTICLE E13
Given the system of disclaimers and the statement of independence in UCP 600, it could be queried why additional protection is required in the eUCP. Strictly speaking, the provisions of UCP 600, properly interpreted, would be sufficient to establish the independent character of an eUCP credit and the role of the banks with regard to it.
Nevertheless, the eUCP requires authentication of electronic records that is greater in degree, and arguably different in character, from the examination of a paper document, for example in:

• eUCP sub-article e6 (f) (Presentation) (implying that a bank will authenticate an electronic record that is sent to it) and,
• eUCP sub-article e3 (b) (iii) (Definition of Electronic record) (indicating that an electronic record must be capable of being authenticated as to the apparent identity of the sender, the apparent source of the data contained in it, and its integrity). Since this level of authentication is already greater than that undertaken with paper documents, could be increased even more by requirements for more security in the eUCP credit, and could be increased still further in the future by technological developments, it was thought important to emphasise the role of authentication in the eUCP process.

DATA PROCESSING SYSTEM
eUCP article e13 refers ‘to the use of a data processing system for the receipt, authentication, and identification of electronic records’. In accordance with sub-article e3 (b) (ii), this means ‘a computerised or an electronic or any other automated means used to process and manipulate data, initiate an action or respond to data messages or performances in whole or in part.’ Any bank that engages in an eUCP transaction is responsible for maintaining a data processing system. This responsibility is a fundamental precondition for using the eUCP. A bank cannot excuse itself from responsibility for the failure to authenticate electronic records due to errors or inadequacies in its systems where those systems are not of the standard required to process such electronic records. This formulation also imposes on banks that engage in processing electronic documentary credits the burden of upgrading their systems to keep them current.

eUCP article e13 does not require a level of authentication that is extraordinary even if it were technically feasible. While some banks may choose to develop and market such systems, such a feature is a value-added aspect of their service and not a basis for the standard by which authentication is to be measured. The standard of eUCP article e13 is only designed to assure that the system used is not outmoded.

The liabilities disclaimed in the eUCP and UCP 600 are the result of external systemic or third party actions, inactions, or risk. Reflecting the content of URBPO 750 article 14 (Unavailability of a Transaction Matching Application), eUCP sub-article e13 (b) indicates that a bank does take on liability and responsibility for the unavailability of its own data processing system.