eUCP Version 2.0 Article e2

Chào các bạn,

Hôm nay chúng ta cùng nghiên cứu Điều e2 nhé.
Điều e2 nói về mối quan hệ giữa eUCP và UCP. Theo đó, các bạn lưu ý:

a. LC tuân thủ theo eUCP thì cũng tuân thủ theo UCP.

b. Khi áp dụng eUCP thì các quy định của eUCP sẽ được ưu tiên áp dụng nếu có sự khác biệt giữa eUCP và UCP ARTICLE e2

c. Nếu LC tuân thủ theo eUCP cho phép người thụ hưởng lựa chọn giữa sự xuất trình chứng từ bằng giấy hoặc điện từ và người thụ hưởng chọn chỉ xuất trình chứng từ bằng giấy, thì chỉ có UCP được sử dụng đối với sự xuất trình đó.

Các bạn đọc thêm phần COMMENTARY để hiểu thêm nhé!

Thân ái.

Mr. Old Man
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ARTICLE e2

RELATIONSHIP OF THE eUCP TO THE UCP

a. An eUCP credit is also subject to the UCP without express incorporation of the UCP.

b. Where the eUCP applies, its provisions shall prevail to the extent that they would produce a result different from the application of the UCP.

c. If an eUCP Credit allows the beneficiary to choose between presentation of paper documents or electronic records and it chooses to present only paper documents, the UCP alone shall apply to that presentation. If only paper documents are permitted under an eUCP Credit, the UCP alone shall apply.

CHANGES FROM eUCP VERSION 1.1

• Minor structural changes

COMMENTARY

The interdependence between the eUCP and UCP 600 is clearly indicated in eUCP article 1 (Scope of the Uniform Customs and Practice for Documentary Credits (UCP 600) Supplement for Electronic Presentations (“eUCP”)).

As a consequence of this correlation, eUCP article e2 goes on to clarify how such interdependence will work in practice.

RELATIONSHIP

As mentioned under article e1, the intent of the eUCP rules is that they function by reference to UCP 600, and do not stand as a set of self-contained rules, such as ISP98 or URDG 758. Subarticle e2 (a) provides that there is no need to expressly incorporate UCP 600 within an eUCP credit. Such credits are automatically also subject to UCP 600.

IMPACT ON UCP 600 ARTICLE 1 (APPLICATION OF UCP)

In view of the above, i.e. no need to expressly stipulate UCP 600 in an eUCP credit, the content of UCP 600 article 1 additionally relates to an eUCP credit. Sub-article e2 (b) clarifies that, in these circumstances, the provisions of eUCP will prevail in the event of any ‘conflict’ with UCP 600.

UCP 600 REFERENCE

Whilst the above makes it clear that there is no actual need to provide specific reference in an eUCP credit to UCP 600, it may well be considered as good practice and prudent to provide such reference, e.g. by stating that an eUCP credit is ‘also subject to UCP 600’. This would provide transparency to all parties concerned and ensure that there is no doubt of the continued pertinence of UCP 600.

APPLICABILITY OF UCP 600 ALONE

The content of eUCP sub-article e2 (c) highlights two differing sets of circumstances wherein the eUCP would not apply, despite reference to the eUCP in the terms and conditions of the credit. In both sets of circumstances, this would be the case when only paper documents are presented without any electronic records. The eUCP can only apply to presentations containing electronic records. By default, if solely paper documents are presented, only UCP 600 will apply.

CONTINUED APPLICABILITY OF eUCP ARTICLE E8 (NOTICE OF REFUSAL)

The above rationale for applicability of UCP 600 is subject to one limited, but important, qualification. The eUCP would continue to operate in a situation where the presenter presents an initial paper document to the issuing bank on day one, yet does not provide clarification that it is presenting the remaining documents solely in paper form until after five banking days following the initial presentation.

It is conceivable that, under such circumstances, the presenter could argue that the issuing bank would be precluded under UCP 600 sub-article 16 (d) (Discrepant Documents, Waiver and Notice) from raising any discrepancies because more than five banking days had passed. In fact, it is quite likely that the issuing bank would not even examine the presentation when the final paper document was presented, because it would still be awaiting the required notice of completeness.

Such a result would not be equitable to the issuing bank that, naturally and reasonably, relied upon the applicability of the eUCP. Despite eUCP sub-article e2 (c), eUCP sub-article e7 (a) (i) (Examination) would continue to be applicable in such a situation, thereby meaning that the time for examination would not commence until the presenter had made it clear that only paper documents would be presented.

As a point of clarification, the presenter need not necessarily do so by presenting a notice of completeness, but could cover such a situation in a cover letter accompanying the documents. However, the mere presentation of all the documents, absent some kind of notification, would not provide sufficient notice in this situation.

This situation could be easily be circumvented if, in an eUCP credit that allows for presentation of paper documents or electronic records, a condition was included expressly requiring the presenter to always present a notice of completeness when the presentation is complete. The issuing bank would then definitely receive notification that the presentation was complete and that the time for examination of the documents had commenced.