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eUCP Version 2.0 ARTICLE e7

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Chào các bạn,

Điều e7 hôm nay đánh dấu chúng ta đã hoàn thành ½ chặng đường nghiên cứu eUCP Version 2.0. Điều e7 quy định về kiểm tra chứng từ như sau:

Điều e7 – Kiểm tra
a.i. Thời hạn kiểm tra chứng từ bắt đầu vào ngày ngân hàng làm việc tiếp theo ngày mà ngân hàng được chỉ định, ngân hàng xác nhận, nếu có, hoặc ngân hàng phát hành trong trường hợp xuất trình trực tiếp, nhận được thông báo hoàn tất việc xuất trình chứng từ.

ii. Nếu thời gian xuất trình chứng từ hoặc thông báo hoàn tất được gia hạn theo quy định tại Điều e6 (e)(i) thì thời gian kiểm tra chứng từ bắt đầu vào ngày ngân hàng làm việc tiếp theo ngày ngân hàng mà chứng từ được xuất trình đến nhận được thông báo hoàn tất tại nơi xuất trình.

b.i. Nếu chứng từ điện tử có chứa một liên kết với hệ thống bên ngoài hoặc việc xuất trình có thể hiện rằng một chứng từ điện tử có thể được kiểm tra bằng cách tham chiếu đến hệ thống bên ngoài thì chứng từ điện tử tại liên kết hoặc hệ thống bên ngoài được xem như cấu thành một phần thống nhất của chứng từ điện tử sẽ được kiểm tra.

ii. Việc không truy cập được chứng từ điện tử qua hệ thống bên ngoài tại thời điểm kiểm tra sẽ cấu thành bất hợp lệ, ngoại trừ trường hợp được quy định tại Điều e7 (d)(ii).

c. Việc một ngân hàng được chỉ định hành động theo sự chỉ định, ngân hàng xác nhận, nếu có, hoặc ngân hàng phát hành không có khả năng kiểm tra chứng từ điện tử ở định dạng (format) được yêu cầu bởi LC tuân thủ theo eUCP hoặc, nếu không có định dạng nào được yêu cầu để kiểm tra chứng từ ở định dạng được xuất trình không phải là cơ sở để từ chối.

d.i. Việc ngân hàng được chỉ định, cho dù có hành động theo sự chỉ định hay không, thực hiện chuyển tiếp chứng từ điện tử có nghĩa rằng ngân hàng đó đã xác thực tính chân thật bề ngoài của các chứng từ điện tử.

ii. Trong trường hợp ngân hàng được chỉ định xác định rằng chứng từ xuất trình phù hợp và chuyển tiếp hoặc xuất trình các chứng từ điện tử đó đến ngân hàng xác nhận hoặc ngân hàng phát hành, cho dù ngân hàng được chỉ định đã thanh toán hoặc chiết khấu hay không, thì ngân hàng phát hành hoặc ngân hàng xác nhận phải thanh toán hoặc chiết khấu, hoặc hoàn trả ngân hàng được chỉ định đó, ngay cả khi một siêu liên kết hoặc hệ thống bên ngoài không cho phép ngân hàng phát hành hoặc ngân hàng xác nhận kiểm tra một hoặc nhiều chứng từ điện tử đã được xuất trình giữa ngân hàng được chỉ định và ngân hàng phát hành hoặc ngân hàng xác nhận, hoặc giữa ngân hàng xác nhận và ngân hàng phát hành.

Các bạn có thời gian nên đọc nguyên bản tiếng Anh Điều e7 bao gồm cả phần COMMENTARY để hiểu sâu hơn nhé.

Chúng ta sẽ tiếp tục Điều e8 và đầu tuần tới.

Chúc các bạn cuối tuần vui vẻ.

Mr. Old Man
—-

ARTICLE e7

EXAMINATION
a. i. The period for the examination of documents commences on the banking day following the day on which the notice of completeness is received by the nominated bank, confirming bank, if any, or by the issuing bank, where a presentation is made directly.

ii. If the time for presentation of documents or the notice of completeness is extended, as provided in sub-article e6 (e) (i), the time for the examination of documents commences on the next banking day following the day on which the bank to which presentation is to be made is able to receive the notice of completeness, at the place for presentation.

b. i. If an electronic record contains a hyperlink to an external system or a presentation indicates that the electronic record may be examined by reference to an external system, the electronic record at the hyperlink or the external system shall be deemed to constitute an integral part of the electronic record to be examined.

ii. The failure of the external system to provide access to the required electronic record at the time of examination shall constitute a discrepancy, except as provided in sub-article e7 (d) (ii).

c. The inability of a nominated bank acting on its nomination, a confirming bank, if any, or the issuing bank, to examine an electronic record in a format required by an eUCP credit or, if no format is required, to examine it in the format presented is not a basis for refusal.

d. i. The forwarding of electronic records by a nominated bank, whether or not it is acting on its nomination to honour or negotiate, signifies that it has satisfied itself as to the apparent authenticity of the electronic records.

ii. In the event that a nominated bank determines that a presentation is complying and forwards or makes available those electronic records to the confirming bank or issuing bank, whether or not the nominated bank has honoured or negotiated, an issuing bank or confirming bank must honour or negotiate, or reimburse that nominated bank, even when a specified hyperlink or external system does not allow the issuing bank or confirming bank to examine one or more electronic records that have been made available between the nominated bank and the issuing bank or confirming bank, or between the confirming bank and the issuing bank.

CHANGES FROM eUCP VERSION 1.1
• Sub-articles moved from the previous Version 1.1 article e7 (Notice of Refusal)
• Minor structural changes
• Expansion to nominated bank acting on its nomination, a confirming bank, if any, or the issuing bank
• Clarification that the forwarding of electronic records by a nominated bank indicates that it has satisfied itself as to the apparent authenticity of the records
• Addition of a sub-article to address the inability of an issuing bank or confirming bank to access electronic records already found compliant by a nominated bank

COMMENTARY
eUCP article e7 addresses several issues concerning the examination of electronic or mixed presentations under the eUCP, including the examination of electronic records contained on external systems, the implications of the nomination of correspondent banks, and the inability of a bank to examine an electronic record presented in a required or permitted format.

TIME
Under UCP 600, once presentation is made to an issuing or confirming bank, the time for examination commences. Presentation can also be used to refer to the presentation of an individual document or documents, but less than all those required by the credit; and is so used in the eUCP.

Under the eUCP, electronic records may be presented separately and, even if paper documents are presented in one lot, they must be coordinated with the electronic records. To monitor these documents and give notice within five days of the first document presented would create an onerous burden on banks, increase the costs and risks, and frustrate mass processing of electronic records. As a result, eUCP sub-article e6 (c) (Presentation) changes the point at which presentation occurs. It requires that the presenter notify the bank that presentation is complete by giving a notice of completeness. Accordingly, the time for the examination of documents under the eUCP does not commence until the notice of completeness is received as eUCP subarticle e7 (a) (i) provides.
eUCP sub-article e7 (a) (ii) highlights that if the time for presentation of documents or the notice of completeness is extended (as provided in sub-article e6 (e) (i), the time for examination commences on the next banking day following the day on which the bank to which presentation is to be made is able to receive the notice of completeness, at the place for presentation. Similarly, under UCP 600 article 29 (Extension of Expiry Date or Last Day for Presentation), there is an extension of the time for presentation in certain circumstances and it is assumed that examination would commence at the end of the extension period.

EXTERNAL SYSTEMS
eUCP sub-article e7 (b) relates to external sources of documentary information. It:
• alerts banks using the eUCP that there can, in the ordinary course of examination under the eUCP, be a reference to an external source;
• provides that such a reference is not unusual and requires no special permission in an eUCP credit;
• implies that a bank must examine the external source indicated in a document in order to examine the presentation properly; and,
• indicates the consequences of the failure of the indicated source to provide access or the necessary information. As outlined in the former ‘ICC Guide to the eUCP’ (ICC Publication No. 639), bankers trained in the UCP system may be hesitant to access external systems in examining documents because they have been trained to believe that references to external systems are contrary to documentary credit practice. Reference to an external system touches on the independent nature of the documentary credit undertaking which is intimately linked to the propositions that the credit transaction is separate from the underlying transaction that gives rise to it, that the parties are not concerned about performances, and that it is improper for a bank to base its refusal to honour on factors external to the documents presented as they appear on their face.

The conflict, however, is apparent rather than real. Despite appearances, references to external systems under the eUCP do not compromise the principles that underlie the doctrine of independence. As is indicated in eUCP article e13 (Additional Disclaimer of Liability for Presentation of Electronic Records under eUCP), an examination of an electronic record under the eUCP is an examination of the data as it appears. The notion does, however, introduce a new dimension to the understanding of independence. References to external systems are not departures from the doctrine of independence because the examination would still be of the data contained in this external system in the same manner as if it had been presented directly and not of the realities represented. While the external system may contain some features that improve the linkage between the representations given in the electronic records presented and the realities that they represent, the examination will take what is stated in this source on its face without regard to its origin. What is still being examined is a representation rather than a reality.

The eUCP does not indicate which external systems may be used other than a reference to ‘a hyperlink to an external system or a presentation indicates that the electronic record may be examined by reference to an external system’. This approach supports the need for the rules to be technology-neutral.
eUCP sub-article e7 (b) (i) highlights that when there is a reference to an external system in documents presented under an eUCP credit, the data at that source becomes the electronic record that is to be examined. It should be noted that the reference to this external system may either be by paper document or electronic record.

In view of the fact that an examiner must be in a position to access any external system indicated in a presentation in order to examine the documents, a presenter must provide accurate information about location and any necessary access information. eUCP sub-article e7 (b) (ii) warns that failure to ‘provide access to the required electronic record at the time of examination shall constitute a discrepancy”’ A failure to provide access can occur in two ways: it can result from the failure of the external system to operate or from the refusal of an operating system to allow the examiner to access the required data.

Although the eUCP does not specifically state that providing improper access to information would constitute a discrepancy, this result is implied by the use of the phrase ‘failure of the external system to provide access’. Assertion of either of these failures as a discrepancy raises issues of proof that must be carefully considered. The failure, of course, must not be due to inabilities of the bank’s own systems. The only exception to this approach is stated in sub-article e7 (d) (ii).

COMPLIANCE
Under an eUCP credit, a bank examines presented documents for compliance with the terms and conditions of a credit. Compliance under UCP 600 sub-article 14 (d) (Standard for Examination of Documents) does not require literal or mirror image compliance for most data in documents. Even the description of the goods need only ‘correspond’ as stated in UCP 600 sub-article 18 (c) (Commercial Invoice).

This principle also applies to the data in an electronic record. However, data clearly intended to be machine read, such as external source addresses or access codes is different. An error, even in the placing of a full stop or another keystroke, may be fatal in seeking a URL or other electronic address. The issuing bank is not required to guess as to where the error in such data might be.

EXCLUSION OR MODIFICATION OF SUB-ARTICLE E7 (b)
It is possible that a bank may not want to access an external system in the course of examination, and will accordingly request exclusion or modification of eUCP sub-article e7 (b). However, it is doubtful that doing so would actually make a reference to an external system non-conforming unless the credit actually contained a term specifically prohibiting such reference.

It is far more appropriate if, before considering such a tactic, banks take cognisance of the benefits of using external systems. Such systems not only increase the reliability of an electronic presentation, but also potentially reduce the risk of fraud in the underlying transaction. Usage of such systems can be positive for all parties involved in a transaction.

If, however, a bank has a concern with regard to the limitation of its own systems to access certain types of external data, then it would be far more beneficial to provide any required specifications regarding the format of any external system, or the limitation of submission of electronic records by external systems, rather than a formal exclusion.

FORMAT
eUCP sub-article e7 (c), by placing the risk of failure to specify a format on the issuing bank, follows from eUCP article e5 (Format) which provides that an eUCP credit ‘must indicate the format of each electronic record ‘. Article e5 assumes that the issuing bank will designate a format that a bank is able to access. Sub-article e7 (c) so provides, indicating that the failure to indicate a format, or indication of a format that cannot be accessed is not a basis for refusal of the electronic record. This sub-article underlines the importance of giving due consideration in advance to the format to be required in the credit.

NOMINATED BANKS AND AUTHENTICATION
eUCP sub-article e3 (b) (iii) (Definitions) provides that an ‘electronic record’ must be capable of being authenticated as to the apparent identity of a sender and the apparent source of the data contained within it and as to whether it has been received in complete and unaltered form.

eUCP sub-article e6 (f) (Presentation) provides that an electronic record that cannot be authenticated ‘is deemed not to have been presented’. If a nominated bank forwards an electronic record, the issuing bank may be unable to authenticate it from its original source. It must, in that case, rely on the bank that has first received the electronic record to authenticate it. Sub-article e7 (d) (i) addresses this problem. Electronic records sent by a bank, whether or not it is acting on its nomination to honour or negotiate, to the issuing bank should also be authenticated between these two parties.

eUCP sub-article e7 (d) (i) provides that the forwarding of electronic records by a nominated bank, whether or not it is acting on its nomination to honour or negotiate,’signifies that it has satisfied itself as to the apparent authenticity of the electronic records’. This provision does not change the rule of UCP 600 sub-article 12 (a) (Nomination), which provides that mere nomination does not constitute any undertaking by the nominated bank ‘except when expressly agreed to by that nominated bank and so communicated to the beneficiary’.

Under the eUCP, however, if a nominated bank elects to forward the documents, its action does have the limited significance of indicating that the documents have been checked for apparent authenticity. The eUCP does not address the liability of the bank for failure to check the authenticity. Whether a nominated bank wishes to accept this responsibility must be considered. Should the nominated bank decide not to forward the electronic records and any paper documents, and instead either return them to the presenter or indicate that it is holding them, the time at which the notice of completeness was presented to the nominated bank will nonetheless be deemed the time of presentation for purposes of determining compliance with any deadlines in the UCP, eUCP, or the credit.

EXAMINING INFORMATION TRANSMITTED WITH AN ELECTRONIC RECORD
The transmission of an electronic record may also include information that is not immediately apparent or visible on a screen. Described as ‘message-related information’, these can be the equivalent of a message envelope containing such items as headers and trailers, transmission path, and information related to the message authentication.

Such information may also indicate a history of changes that have been made to the data. For purposes of examining the data contained in the electronic record, the appearance of changes to the electronic record would not be a basis for refusal. The examination must be based on the data contained in the electronic record in the final form in which it has been transmitted and not on preparatory steps.

On the other hand, the bank may have other reasons to examine message-related information in the course of an examination. It may do so in order to determine the date that the electronic record was sent under eUCP article e10 (Date of Issuance), the person to whom to return the electronic record under UCP 600 sub-article 16 (c) (iii) (c) (Discrepant Documents, Waiver and Notice), and/or the address of the sender or information related to authentication. Having to resort to message-related information does not violate the independence of the credit, because it does not involve examination of underlying facts related to the underlying transaction.

OTHER PROVISIONS IN THE eUCP IMPACTING EXAMINATION
The eUCP contains other provisions that may have an impact on the examination of electronic records and documents presented. These include:
Inability to authenticate an electronic record or electronic notice of completeness While the issuer may know that an unauthenticated electronic notice of completeness or other electronic record has been sent, it is more likely that the documentary credit department will not even receive the document. If it did not receive an authenticated notice of completeness, the bank would have no obligation to commence examination under eUCP sub-article e6 (c) (iii). Even if it did receive an unauthenticated notice, the bank would not have received a proper notice. If a bank receives a notice of completeness but a required electronic record has not been authenticated, the discrepancy would be an ‘unauthenticated record’ if the documentary credit department knows of it or, if it does not, a missing required document. If an electronic record has not been authenticated, the bank has no obligation to examine it further, and should it contain other discrepancies, is not precluded from raising them if it should later be re-presented and authenticated. It would benefit the presenter to be sure that its communication ‘system’ is able to accurately identify messages that are not received in an acceptable form.

Failure to identify the eUCP credit If the issuing bank can identify the credit under which an electronic record or paper document is sent, it cannot claim that the presentation has not been received. On the other hand, it may choose to send a reply message to the presenter of the document asking to which credit the document relates, although such a reply is not required by the eUCP. The message is not to be construed as a notice of refusal or an acknowledgment or receipt of the referenced document for purposes of examination under the eUCP credit.

Expiry or other deadline extended When eUCP sub-article e6 (e) (Presentation) operates to extend a deadline with respect to an electronic record, a bank may not claim that the credit has expired or that the presentation is defective for that reason.
Wrong mode of notice of completeness When the credit requires that a notice of completeness be presented as an electronic record, the presentation of the notice as a paper document may not be a discrepancy and may not be defective even if received after the expiration of the credit if eUCP sub-article e6 (e) (Presentation) is applicable. Where the issuer is unable to receive the transmitted electronic record, sub-article e6 (e) (iii) permits the presenter to give the notice of completeness in a paper mode. This rule would apply even if the credit specified that the notice must be in an electronic record – unless the credit also expressly excludes this provision of sub-article e6 (e). The subarticle also provides that the paper substitute is timely if sent by the presenter (as opposed to received by the bank) before the presenter should know that the bank’s systems are again operative.

Originals or copies A claim that one of a set of originals or copies is missing would not be a valid basis for dishonour under eUCP article e9 (Originals and Copies).

Dates An issuing bank would need to refer to eUCP article e10 (Date of Issuance) with respect to undated electronic records if their date of issuance was required or significant under UCP 600, the credit, or international standard banking practice.
Dates of shipment on transport documents An issuing bank would need to refer to eUCP article e11 (Transport) with respect to transport documents that do not indicate a date of shipment or dispatch or that bear a notation.

Notations to transport records When there is a notation to a transport record, an issuer would need to refer to eUCP article e11 (Transport) in addition to the applicable transport article of UCP 600.

TIME FOR EXAMINATION
The eUCP does not contain a specific rule referencing the time within which examination of documents must occur. UCP 600 articles 14 (Standard for Examination of Documents) and 16 (Discrepant Documents, Waiver and Notice) remain applicable with respect to the time for examination. Under these articles, the bank has a maximum of five banking days following the day of presentation to determine if a presentation is complying.
COMPLIANCE DETERMINED BY A NOMINATED BANK
Sub-article e7 (d) (ii) addresses a possible situation in which a nominated bank can access a specified hyperlink or external system, but the issuing bank or confirming bank is unable to access the same hyperlink or external system. In such circumstances, and when a nominated bank has determined that a presentation is complying and makes presentation of the electronic records to the issuing bank or confirming bank, an issuing bank or confirming bank must honour or negotiate, or reimburse that nominated bank, even when a specified hyperlink or external system does not allow the issuing bank or confirming bank to examine one or more electronic records that have been made available between the nominated bank and the issuing bank or confirming bank, or between the confirming bank and the issuing bank.

Sub-article e7 (d) (ii) provides a correlation with UCP 600 article 35 (Disclaimer on Transmission and Translation). In both UCP 600 and the eUCP, the inference is that if a presentation is considered to be complying by a nominated bank, but is not accessible to the issuing or confirming bank, then the issuing or confirming bank must still honour, negotiate or reimburse. UCP 600 article 35 does not expound upon the course of action to be pursued in the event of documents being lost in transit nor does it explain how to negate such a risk. This is a matter of practice, not for the rules to clarify, and is consequently left for the parties concerned to agree an appropriate approach. The same applies to an ‘electronic record’ scenario in a credit subject to the eUCP.

The underlying fact is that one party must bear the consequences and, in order to be consistent with UCP 600, it is considered that this is the correct approach both in intent and understanding. As is the case with UCP 600 article 35 (Disclaimer on Transmission and Translation), there is a need to establish the rights of a presenter that has presented a compliant presentation, but something goes awry after that presentation has been made. As with UCP 600 article 35, in view of the fact that the issuing bank is obligated to honour a complying presentation, it is immaterial whether or not a nominated bank has honoured or negotiated.

Unlike a presentation under the UCP, where copies of presented documents may be held with the nominated bank or obtainable from the presenter, this is not necessarily the case for electronic records. The wording of eUCP sub-article e7 (d) (ii) is reflecting a position if the issuing bank (or confirming bank) cannot access one or more electronic records. In practice, such events should be rare. However, it should also be noted that an issuing bank, when issuing its eUCP credit, should be aware of the entities that will be issuing or making available electronic records for review and use by an applicant. With this in mind, the issuing bank should be satisfying itself as to the platform, form of hyperlink or external system where the electronic records will be made available. If there is any doubt, the bank should not issue the eUCP credit in the form requested by the applicant.

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