eUCP Version 2.0 Article e6

Chào các bạn.

Tối nay chúng ta tiếp tục eUCP với Điều e6 nhé (cũng ngắn thôi).

Điều e6 quy định về việc xuất trình chứng từ. Theo đó:

a.i. LC tuân thủ eUCP phải quy định nơi xuất trình chứng từ điện tử

ii. LC tuân thủ eUCP yêu cầu hoặc cho phép xuất trình cả chứng từ điện tử và chứng từ bằng giấy, ngoài nơi xuất trình chứng từ điện tử, cũng phải quy định nơi xuất trình chứng từ bằng giấy.

b. Chứng từ điện tử có thể xuất trình riêng rẽ và không cần phải xuất trình một lúc.

c.i. Khi xuất trình chỉ riêng một hoặc nhiều chứng từ điện tử hoặc kết hợp với chứng từ bằng giấy, người xuất trình chịu trách nhiệm thông báo đã hoàn tất việc xuất trình cho ngân hàng được chỉ định, ngân hàng xác nhận, nếu có, hoặc ngân hàng phát hành, khi chứng từ được xuất trình trực tiếp. Biên nhận thông báo hoàn tất việc xuất trình là thông báo việc xuất trình đã hoàn tất và thời hạn xuất trình chứng từ bắt đầu.

ii. Thông báo hoàn tất việc xuất trình có thể là một chứng từ điện tử hoặc chứng từ bằng giấy và phải chỉ rõ LC tuân thủ eUCP mà nó có liên quan .

iii. Việc xuất trình được xem như chưa thực hiện nếu thông báo hoàn tất chưa được nhận.

iv. Khi ngân hàng được chỉ định, cho dù có hành động theo sự chỉ định hay không, chuyển tiếp hoặc xuất trình các chứng từ điện tử đến ngân hàng xác nhận hoặc ngân hàng phát hành thì không cần phải gửi thông báo thông báo hoàn tất việc xuất trình.

d.i. Mỗi chứng từ điện tử được xuất trình theo LC tuân thủ eUCP phải chỉ rõ LC tuân thủ eUCP mà chứng từ được xuất trình theo. Điều này có thể bằng một tham chiếu cụ thể trong chứng từ điện tử, hoặc trong dữ liệu đính kèm hoặc bổ sung hoặc bằng cách thể hiện trong thư gửi kèm theo chứng từ xuất trình.

ii. Một chứng từ điện tử xuất trình mà không chỉ rõ như vậy sẽ được xem như chưa nhận được.

e.i. Nếu ngân hàng nơi chứng từ xuất trình đến mở cửa nhưng hệ thống của ngân hàng đó không thể nhận chứng từ điện tử được chuyển đi vào ngày chấm dứt hiệu lực và/hoặc ngày cuối cùng để xuất trình, tùy theo từng trường hợp, xem như ngân hàng đóng cửa và ngày chấm dứt hiệu lực và/hoặc ngày cuối cùng để xuất trình sẽ được gia hạn đến ngày ngân hàng làm việc tiếp theo mà vào ngày đó ngân hàng có thể nhận chứng từ điện tử.

ii. Trong trường này, ngân hàng được chỉ định phải xác nhận trên thư gửi kèm chứng từ cho ngân hàng xác nhận, nếu có, hoặc ngân hàng phát hành rằng chứng từ điện tử được xuất trình trong thời hạn được gia hạn theo điều e6 (e)(i).
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Các bạn đọc thêm phần COMMENTARY để hiểu rõ hơn các quy định tại Điều e6 về xuất trình chứng từ nhé.

G9

Mr. Old Man
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ARTICLE e6

PRESENTATION

a. i. An eUCP credit must indicate a place for presentation of electronic records.

ii. An eUCP credit requiring or allowing presentation of both electronic records and paper documents must, in addition to the place for presentation of the electronic records, also indicate a place for presentation of the paper documents.

b. Electronic records may be presented separately and need not be presented at the same time.

c. i. When one or more electronic records are presented alone or in combination with paper documents, the presenter is responsible for providing a notice of completeness to the nominated bank, confirming bank, if any, or to the issuing bank, where a presentation is made directly. The receipt of the notice of completeness will act as notification that the presentation is complete and that the period for examination of the presentation is to commence.

ii. The notice of completeness may be given as an electronic record or paper document and must identify the eUCP credit to which it relates.

iii. Presentation is deemed not to have been made if the notice of completeness is not received.

iv. When a nominated bank, whether acting on its nomination or not, forwards or makes available electronic records to a confirming bank or issuing bank, a notice of completeness need not be sent.

d. i. Each presentation of an electronic record under an eUCP credit must identify the eUCP credit under which it is presented. This may be by specific reference thereto in the electronic record itself, or in metadata attached or superimposed thereto, or by identification in the covering letter or schedule that accompanies the presentation.

ii. Any presentation of an electronic record not so identified may be treated as not received.

e. i. If the bank to which presentation is to be made is open but its system is unable to receive a transmitted electronic record on the stipulated expiry date and/or the last day for presentation, as the case may be, the bank will be deemed to be closed and the expiry date and/or last day for presentation shall be extended to the next banking day on which such bank is able to receive an electronic record.

ii. In this event, the nominated bank must provide the confirming bank or issuing bank, if any, with a statement on its covering schedule that the presentation of electronic records was made within the time limits extended in accordance with sub-article e6 (e) (i).

iii. If the only electronic record remaining to be presented is the notice of completeness, it may be given by telecommunication or by paper document and will be deemed timely, provided that it is sent before the bank is able to receive an electronic record.

f. An electronic record that cannot be authenticated is deemed not to have been presented.

CHANGES FROM eUCP VERSION 1.1

• Structural and grammatical changes
• Amended ‘beneficiary’ to ‘presenter’ • More precise explanation as to which banks are impacted
• Clarification that the notice of completeness acts as notification that the presentation is complete
• Clarification that the period for examination commences upon receipt of the notice of completeness
• A notice of completeness is not required in the forwarding of electronic records by a nominated bank to a confirming or issuing bank
• Additional methods are added in order to identify an eUCP credit • In the event that the expiry date and/or last day for presentation are extended, it should be indicated in the covering schedule that this is in accordance with the rules

COMMENTARY

The eUCP does not contain a definition of ‘presentation’. When applied to UCP 600, it means either the delivery of documents under a credit to the issuing bank or nominated bank or the documents so delivered. If presentation occurs prior to the expiry date of the credit, it is timely. If not, neither the issuing bank nor any confirmer banks have any obligation under the credit.

Presentation may also impact other deadlines such as the requirement of UCP 600 sub-article 14 (c) (Standard for Examination of Documents) for transport documents to be presented within 21 calendar days after the date of shipment.

SINGLE MAILING
Although UCP 600 articles 14 (Standard for Examination of Documents) and 16 (Discrepant Documents, Waiver and Notice) do not expressly require that documents be presented in one lot, banks commonly expect presentation to be in one single mailing.

PLACE OF PRESENTATION
eUCP sub-article e6 (a) repeats the requirement of UCP 600 sub-article 6 (d) (Availability, Expiry Date and Place for Presentation) that a credit must state the place for presentation. eUCP Article e6 (a) also distinguishes between the place where electronic records and paper documents are to be presented. As under UCP 600, it is implied that a paper document would be presented to a physical address.

ELECTRONIC RECORD
The place for presentation of an electronic record would, in general, be an electronic address. However, there are situations where an electronic record could be sent to a physical address. For example, the data could be saved on a portable storage medium and mailed. The data is in the form of an electronic record but it is presented to a physical address.

NO INDICATION OF A PLACE FOR PRESENTATION
In the rare event that an eUCP credit fails to indicate a place for presentation, neither UCP 600 nor eUCP sub-article e6 (a) indicate the consequence. In the paper world, the presenter would be entitled to make presentation to the address of the issuing bank stated in the credit or to any place at which the issuing bank or any confirming bank does business.

It is normal practice that, under UCP 600, a physical location will be stated within in the credit. The eUCP defines ‘place for presentation’ as an electronic address of a data processing system. As such, in order to ensure compliance with regulatory and sanctions issues, it is essential that an eUCP credit also indicate a physical location. Mailing a portable storage medium in the proper format to a physical address may also suffice.

CLOSURE OF PLACE FOR PRESENTATION
eUCP sub-article e6 (a) does not address the situation where the electronic address has ceased to be functional even though the bank is able to receive electronic messages. In such a case, the provisions of eUCP sub-article e6 (e) regarding closure for electronic business would apply.

DIRECT PRESENTATION TO ISSUING BANK
The eUCP does not address the question of whether or not the presenter may present an electronic record and paper documents directly to the issuer or confirmer even if a different place for presentation is given in the eUCP credit. Absent any express provision, there is no basis for changing the practice under UCP 600 permitting the presenter the option of making presentation directly to any bank that is obligated under the credit. As a practical matter, however, the presenter may not have an electronic address to which presentation may be made unless it is stated in the credit.

NON-RECEIPT OF PRESENTATION
As is the case with paper documents under UCP 600, the risk of non-receipt ultimately remains with the beneficiary. The issuing bank or any confirming banks obligation is predicated on the timely presentation of complying documents. It would be good practice for beneficiaries to monitor presentations of electronic records, particularly when utilising another party for full or partial presentation of the electronic records.

SEPARATE PRESENTATION OF ELECTRONIC RECORDS
eUCP sub-article e6 (b) expressly provides that electronic records may be presented separately, reflecting the realities of electronic transmission. Even if the same sender sends electronic records at approximately the same time, it does not follow that they will be received simultaneously unless they are combined into one file.

Moreover, the issuing bank and applicant may prefer certain electronic records to be sent directly by the third party that creates them. As a result, a transmission receipt of documents under an eUCP credit will commonly be fragmentary. Electronic records will also be presented separately from any paper documents required or permitted by the eUCP credit.

PAPER DOCUMENTS UNDER AN eUCP CREDIT
Although eUCP sub-article e6 (b) allows for separate presentation of electronic records, this does not apply to presentation of paper documents under an eUCP credit. Under such circumstances, UCP 600 would apply to the paper component.

When paper documents are to be presented in one lot, the issuing bank would probably expect the same transmission of paper documents under an eUCP credit as under a UCP credit. However, it should be borne in mind that there is less reason to insist on transmission of paper documents in one lot under the eUCP, owing to the fact that the time for examination will not commence until the notice of completeness has been received.
An issuing bank that does not wish to receive separate paper presentations under an eUCP credit should consider specifying in the eUCP credit that the presentation of any paper documents must be in one lot.

BANKING HOURS
UCP 600 Article 33 (Hours of Presentation) provides that a bank ‘has no obligation to accept a presentation outside of its banking hours’. This provision is understood to mean that a presentation received after the hours in which the documentary credit department is open is received the next banking day, unless the bank elects to treat it otherwise.

Although electronic records can be received 24 hours a day, seven days a week, this rule still remains in force. As a practical matter, only the notice of completeness will be affected. While the presenter is obligated to make presentation before the close of business on the expiry date, an issuer would be well advised to state the time for the close of business (e.g. “Before 1600 hours GMT on the expiry date”) in the eUCP credit so as to avoid any misunderstanding due to differing expectations.

DOCUMENT MEDIUM NOT STATED
When an eUCP credit states the name of a document without stating whether it should be in a paper or an electronic medium (or format), and requires at least one other electronic record, giving no other indication that other required documents are to be in a paper medium, the eUCP provides no express rule but presumes that, were an electronic record required, it would be express.

This presumption is based on the common UCP 600 practice of specifying an electronic record where one is required and simply indicating the name of the document where a traditional paper document is expected, assuming that a document will be in a paper medium unless otherwise stated. Therefore, if an eUCP credit indicates that specific documents are to be presented as electronic records but is silent about other documents, those documents must be presented in a paper medium.

This assumption that paper is a default medium in an eUCP credit is, however, rebuttable where there is ambiguity. For example, if the eUCP credit specifies that several documents are to be paper documents and several other documents are to be electronic records, but does not provide any actual indication as to the medium of the document at issue, that document could be presented either as a paper document or an electronic record.

NOTICE OF COMPLETENESS
Many banks are not prepared to monitor the receipt of paper documents presented separately under UCP 600 credits because of the costs and risks involved. The processing necessary to make eUCP credits economically viable makes such personnel-intensive monitoring of separate documents under eUCP credits even less feasible.

To solve this problem, in eUCP sub-article e6 (c), the burden of determining whether presentation is completed under the eUCP is shifted to the presenter and, by default, ultimately to the beneficiary. It states that the presentation has not taken place until the presenter provides a notice of completeness. When the notice of completeness is received, the reasonable time within which to examine documents begins to run. Strictly speaking, it is incorrect to say that the presenter is ‘required’ to present a notice of completeness under the eUCP. It is no more ‘required’ to do so than it is required to present any document or record. However, its entitlement to honour is conditioned on presentation of the notice.

eUCP sub-article e6 (c) states that the notice of completeness must signify that the presentation is complete and ‘identify the eUCP credit to which it relates’. It allows the notice of completeness to be provided either by electronic record or paper document unless the credit otherwise provides. Even if the credit requires that the notice of completeness be given as an electronic record, sub-article e6 (e) (iii) provides that it may be presented as a paper document in the event that the bank to which presentation is to be made is unable to receive an electronic presentation and the only remaining item to be presented is the notice.

Although not mandated by the eUCP, it would be good practice for a presenter to expressly label any such document as a notice of completeness, therein stating that the specified presentation under a referenced credit is now complete.
In addition, whilst it is not necessary for an eUCP credit to expressly include a requirement for a notice of completeness, it would constitute good practice if issuing banks stated within the credit that a notice of completeness must be given when the presentation is complete and that examination will not begin until that point.

In accordance with eUCP sub-article e6 (c) (iii), the lack of a notice of completeness deems that presentation has not been made.

NON-REQUIREMENT FOR NOTICE OF COMPLETENESS
As evidenced in eUCP sub-article e6 (c) (iv), it is implied that the requirement for a notice of completeness only applies to the presentation by a presenter to the nominated bank, confirming bank, if any, or to the issuing bank.

It is the responsibility of the presenter, and ultimately the beneficiary, to ensure a complete presentation and to evidence such completeness by presenting the required notice. Any presentation by a nominated bank to a confirming or issuing bank is automatically considered to be complete and does not require a notice of completeness.

IDENTIFICATION OF THE CREDIT
eUCP sub-article e6 (d) (i) requires that each separate presentation identify the eUCP credit under which it is presented. Even though it imposes a requirement that is not contained in the terms of the credit and would not normally be present in the document itself, this provision is necessary in order to avoid any potential confusion.

It should be noted that the eUCP does not require each paper document to identify the credit under which it is presented, only that a presentation do so. As a result, in the event of several paper documents being presented in one lot, it would be acceptable if the cover letter indicated the credit under which the documents are presented.

Similarly, if electronic records are batched together and sent in an electronic envelope, the credit may be identified in the message envelope. It should also be noted that eUCP sub-article e6 (d) does not require identification of the credit in any particular manner, such as by its number. Such a shorthand means of identification would naturally be the easiest means of identifying the credit. It could also, however, be identified by other means. For example, giving the confirmation number and the name of the issuer and the amount and date of the credit may enable identification even without the credit number. The crux is whether or not the bank would be able to identify the credit based upon the information provided in the normal course of its operations.

When a bank cannot link an electronic record to the credit to which it relates without further information from the presenter, eUCP sub-article e6 (d) (ii) provides that it ‘may be treated as not received’. Although the bank is not required by the eUCP under such circumstances to ask the presenter to identify the credit, it is very likely to do so, and would constitute good practice. Such a query must solely be for information purposes and does not constitute an attempted notice of refusal for purposes of UCP 600 sub-article 16 (d) (Discrepant Documents, Waiver and Notice).

ELECTRONIC CLOSURE
When a bank to which presentation of one or more electronic records is to be made is open for business but is unable to receive an electronic presentation, eUCP Article e6 (e) provides that certain deadlines ‘shall be extended to the next banking day on which such bank is able to receive an electronic record’. To lessen the possibility of such electronic closure, banks should have backup systems in place and may wish to indicate alternative electronic addresses.

It should be noted that the eUCP electronic closure rule does not apply to situations in which the bank to which presentation is to be made is physically closed for business nor does it apply to presentation of paper documents. In such situations, the rules of UCP 600 apply. If the place for presentation is closed in the ordinary course of business and not due to a force majeure event, UCP 600 article 29 (Extension of Expiry Date or Last Day for Presentation) would apply and the expiry date and the last date after the date of shipment will be extended to the first following banking day. However, if the place for presentation is closed due to a force majeure event as indicated in UCP 600 article 36 (Force Majeure), there will be no extension. Under UCP 600, this risk is borne by the beneficiary.

The eUCP rules regarding extension would not apply to presentation of paper documents under an eUCP credit even if the electronic address for presentation is unable to receive electronic records. As a result, the inability of the bank to receive an electronic record on a deadline will not excuse the presentation of a paper document if the place for presentation of the paper document is open for business. If it is not, an excuse must be found in UCP 600 and not in the eUCP. On the other hand, even if the bank is closed in the ordinary course of business or due to a force majeure event, its electronic place of presentation may be able to receive presentations. In such a case, the presentation would be timely.

COVERING SCHEDULE STATEMENT
In line with the principles of UCP 600 sub-article 29 (b) (Extension of Expiry Date or Last Day for Presentation), eUCP sub-article e6 (e) (ii) provides that, in the event of an extension under subarticle e6 (e) (i), the nominated bank must provide the issuing bank or confirming bank, if any, with a statement on its covering schedule that the presentation of electronic records was made within the time limits extended in accordance with sub-article e6 (e) (i).

REMAINING ELECTRONIC RECORD NOTICE OF COMPLETION
As stated in sub-article e6 (e) (iii), in a situation where the only electronic record remaining to be presented is the notice of completion, such notice may be given by telecommunication or by paper document and will be deemed timely, provided that it is sent before the bank is able to receive an electronic record.

DEADLINES
eUCP article e6 (e) does not apply to all deadlines. As with UCP 600 article 29 (Extension of Expiry Date or Last Day for Presentation), it applies only to the expiry date in the credit and to the last date of the period of time after the date of shipment for the presentation of documents.

AUTHENTICATION
The eUCP requires a level of authentication of electronic records that differs from that required for paper documents. In neither case, however, is the bank required to look beyond the face of what is presented to ascertain the facts that are represented.
The nature of an electronic presentation requires a different manner of screening as to the apparent authenticity of the document. In the paper milieu, an examiner would look at the document on its face. Only if it were apparently irregular in a manner that was beyond doubt would the examiner be justified in questioning its authenticity. Even then, the examiner would not be justified in refusing it on the basis that it appeared to be false unless it was, in fact, proven to be false, fraudulent, or forged.

In an electronic environment, the processing system performs a screening function that filters electronic records with respect to the apparent sender and with respect to whether the message is received in its entirety and integrity. The nature of this authentication is intimately linked to the nature of an electronic record and is covered above in more detail in connection with the definition of ‘electronic record’ under eUCP sub-article e3 (b) (iii) (Definitions). eUCP sub-article e6 (f) provides that when an electronic record cannot be authenticated, it ‘is deemed not to have been presented.’ Indeed, in most such situations, the documentary credit department will not even be aware that a presentation has been attempted because the transmission will not be able to get beyond the bank’s authentication system