URDG758 中国银行培训.ppt

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1、1,URDG758,Article 1Application of URDGApply to any demand guarantee or counter-guarantee that expressly indicates it is subject to them,except modifies or excludes them.Demand Guarantee is subject to the URDG,Counter Guarantee is also subject to the URDG.Counter Guarantee is also subject to the URDG

2、,Demand Guarantee is subject to the URDG?Demand Guarantee is subject to the URDG excluded article X,Counter Guarantee is subject to the URDG excluded article X?modifies or excludes?,2,URDG758,Article 1Application of URDGWhere,at the request or with the agreement of the instructing party,a demand gua

3、rantee or counter-guarantee is issued subject to the URDG,the instructing party is deemed to have accepted the rights and obligations expressly ascribed to it in these rules.URDG 1992 version or 2010 version?Can the URDG apply where not expressly incorporated in a guarantee?,3,URDG758,Article 2Defin

4、itionsApplicant means the party indicated in the guarantee as having it obligation under the underlying relationship supported by the guarantee.The applicant may or may not be the instructing party.Instructing party means the party,other than the counter-guarantor,who gives instructions to issue a g

5、uarantee or counter-guarantee and is responsible for indemnifying the guarantor or,in the case of a counter-guarantee,the counter-guarantor.The instructing party may or may not be the applicant.Party v.Bank,4,URDG758,Article 2DefinitionsDemand guarantee means any signed undertaking,however named or

6、described,providing for payment on presentation of a complying demand.Structure of five-party guarantee Can guarantor issue a guarantee acting for its own account?,Instructing Party,Beneficiary,Guarantor,Applicant,Counter Guarantor,Principal,5,URDG758,Article 2DefinitionsPresentation means the deliv

7、ery of a document under a guarantee to the guarantor or the document so delivered.It includes a presentation other than for a demand,for example,a presentation for the purpose of triggering the expiry of the guarantee or a variation of its amount.Document means a signed or unsigned record of informa

8、tion,in paper or in electronic form,that is capable of being reproduced in tangible form by the person to whom it is presented.In these rules,a document includes a demand and a supporting statement.Document includes fax or e-mail?,6,URDG758,Article 2DefinitionsComplying presentation under a guarante

9、e means a presentation that is in accordance with,first,the terms and conditions of that guarantee,second,these rules so far as consistent with those terms and conditions and,third,in the absence of a relevant provision in the guarantee or these rules,international standard demand guarantee practice

10、.Complying demand means a demand that meets the requirements of a complying presentation.Complying presentation under UCP600?Presentation v.Demand?,7,URDG758,Article 2DefinitionsInternational standard demand guarantee practiceThis is meant as a first step to supplementing in the next few years the r

11、evised URDG with a body of codified standard practices similar to ISBP when ICC feel that Opinions,DOCDEX decisions and other position papers would allow to identify distinctively such a body of standards in the meantime,it is felt that the new concept of ISDGP so for as consistent with the URDG wil

12、l allow parties judges and arbitrators more latitude in identifying solutions to disputes while remaining within the spirit and general principals of the URDG.ISDGP,a gap-filler to URDG.DOCDEX:ICC Rules for Documentary Instruments Dispute Resolution Expertise.19971001.,8,URDG758,Article 2Definitions

13、Underlying relationship means the contract,tender conditions or other relationship between the applicant and the beneficiary on which the guarantee is based.Guarantors own records means records of the guarantor showing amounts credited to or debited from accounts held with the guarantor,provided the

14、 record of those credits or debits enables the guarantor to identify the guarantee to which they relate;The case of“other relationship”?,9,URDG758,Article 2Definitionsexpiry means the expiry date or the expiry event or,if both are specified,the earlier of the two;expiry date means the date specified

15、 in the guarantee on or before which a presentation may be made;expiry event means an event which under the terms of the guarantee results in its expiry,whether immediately or within a specified time after the event occurs,for which purpose the event is deemed to occur only:a.when a document specifi

16、ed in the guarantee as indicating the occurrence of the event is presented to the guarantor,or b.if no such document is specified in the guarantee,when the occurrence of the event becomes determinable from the guarantors own records.Valid until 30 days after delivery evidenced by cargo receipt?,10,U

17、RDG758,Article 3InterpretationBranches of a guarantor in different countries are considered to be separate entities.a guarantee includes a counter-guarantee and any amendment a guarantor includes a counter-guarantor a beneficiary includes the party in whose favour a counter-guarantee is issued.Any r

18、equirement for presentation of one or more originals or copies of an electronic document is satisfied by the presentation of one electronic document.Different Branches in one country are considered to be one?,11,URDG758,Article 3InterpretationWhen used with a date or dates or a period i.Include:from

19、,to,until,till and between,ii.Exclude:before and after,iii.Exclude+Include:within.Terms such as first class,well-known,qualified,independent,official,competent or local when used to describe the issuer of a document allow any issuer except the beneficiary or the applicant to issue that document.Allo

20、w instructing party to issue that document?,12,URDG758,Article 4Issue and effectiveness A guarantee is issued when it leaves the control of the guarantor.A guarantee is irrevocable on issue even if it does not state this.The beneficiary may present a demand from the time of issue of the guarantee or

21、 such later time or even as the guarantee provided.What does“leaves the control of the guarantee”mean?,13,URDG758,Article 5Independence of guarantee and counter-guarantee A guarantee is independent of underlying relationship,the application.A counter guarantee is independent of guarantee,underlying

22、relationship the application any other counter-guaranteeDirect guarantee and Indirect guarantee,14,URDG758,Article 6 Documents v.goods,services or performanceGuarantors deal with documents and not with goods,services or performance to which the documents may relate.,15,URDG758,Article 7 Non-document

23、ary conditions A guarantee should specify a document to indicate compliance with the condition contained in the guarantee.If the guarantee does not specify any such document and the fulfilment of the condition cannot be determined 1.from the guarantors own records,or 2.from an index specified in the

24、 guarantee then the guarantor will deem such conditions as not stated and will disregard it,except for the purpose of determining date in a document presented do not conflict with data in guarantee.What is an index?,16,URDG758,Article 8 Content of instructions and guaranteesAll instructions should b

25、e clear and precise and should avoid excessive detail.It is recommended that all guarantees specify:a.the applicant b.the beneficiary c.the guarantord.a reference number or other information identifying the underlying relationship;e.a reference number or other information identifying the issued guar

26、antee or,in the case of a counter-guarantee,the issued counter-guarantee;Should specify the instructing party?,17,URDG758,Article 8 Content of instructions and guaranteesIt is recommended that all guarantees specify:f.the amount or maximum amount payable and the currency in which it is payable;g.the

27、 expiry of the guarantee;h.any terms for demanding payment;i.whether a demand or other document shall be presented in paper and/or electronic form;j.the language of any document specified in the guarantee;andk.the party liable for the payment of any charges.The changes to URDG458?,18,URDG758,Article

28、 9 Application not taken upWhere,at the time of receipt of the application,the guarantor is not prepared,or the guarantor is unable to issue the guarantee,the guarantor should without delay so inform the party that gave the guarantor its instructions.The request to issue a domestic guarantee subject

29、 to URDG?,19,URDG758,Article 10 Advising of guarantee or amendment Advice a guarantee:satisfy the apparent authenticity,and advice accurately reflects the terms and conditions of guarantee An advising party or a second advising party advises a guarantee without any additional representation or any u

30、ndertaking whatsoever to the beneficiary.If a party cannot satisfy the apparent authenticity and elects nonetheless to advise that guarantee,the party should state the same.Advising a guarantee should whenever possible use the same party to advise any amendment to that guarantee.a second advising pa

31、rty?,20,URDG758,Article 11 Amendment An amendment made without the beneficiarys agreement is not binding on the beneficiary.The beneficiary may reject an amendment of the guarantee at any time until it notifies its acceptance of the amendment,or make a presentation that complies only with the guaran

32、tee as amended.Partial acceptance of an amendment is not allowed and will be deemed to be notification of rejection of the amendment.A provision in an amendment to the effect that the amendment shall take effect unless rejected within a certain time shall be disregarded.What does“complies only”mean?

33、,21,URDG758,Article 12 Extent of guarantors liability under the guarantee A guarantor is liable to the beneficiary only in accordance with,the terms and conditions of the guarantee and,these rules so far as consistent with those terms and conditions,Up to the guarantee amount.Beyond the expiry date?

34、,22,URDG758,Article 13 Variation of amount of guarantee A guarantee may provide for the reduction or the increase of its amount on specified dates or on the occurrence of a specified event which under the terms of the guarantee results in variation of its amount,and for this purpose the event is dee

35、med to have occurred only:a.when a document specified in the guarantee as indicating the occurrence of the event is presented to the guarantor,orb.if not such document is specified in the guarantee,when the occurrence of the event becomes determinable from the guarantors own records or from an index

36、 specified in the guarantee.,23,URDG758,Article 14 Presentation A presentation shall be made to the guarantor:at the place of issue,or such other place as is specified in the guarantee and,on or before expiry A presentation has to be complete unless it indicates that it is to be completed later.In t

37、hat case,it shall be completed before expiry.Each presentation shall state the guarantors reference number of the guarantee.If it does not,the time for examination of a demand start on the date of identification.Documents issued by applicant or beneficiary shall be in the language of the guarantee.A

38、ny other person,any language.The function of the statement“presentation to be completed later”?,24,URDG758,Article 14 Presentation A guarantee indicates presentation in electronic form,the guarantee should specify the format,the system for the data delivery and the electronic address for that presen

39、tation.If not specify,presented in any electronic format authenticated or in paper form are acceptable.A guarantee indicates presentation in paper form,may use any mode of delivery unless excluded by the guarantee.A guarantee does not indicate in electronic or paper form,any presentation shall be ma

40、de in paper form.Reject a presentation in electronic form when form of presentation is not specified?,25,URDG758,Article 15 Requirements for demand A demand under the guarantee shall be supported a statement,indicating in what respect the applicant is in breach of its obligations under the underlyin

41、g relationship.The statement may be in the demand or in a separate singed document accompanying or identifying the demand.A demand under the counter guarantee shall be supported by a statement indicating that such party has received a complying demand under the guarantee or counter guarantee.The abo

42、ve requirement applies except to the extend the guarantee or counter-guarantee expressly excludes this requirement.Exclusion terms such as“The supporting statement under article 15(a)(b)is excluded”satisfy the requirement of this paragraph.Such as?,26,URDG758,Article 15 Requirements for demand Neith

43、er the demand nor the supporting statement may be dated before the date when the beneficiary is entitled to present a demand.Any other document may be dated before that date.Neither the demand,nor the supporting statement,nor any other document may be dated later than the date of its presentation.,2

44、7,URDG758,Article 16 Information about demandThe guarantor shall without delay inform the instructing party or,where applicable,the counter-guarantor of any demand under the guarantee and of any request,as an alternative,to extend the expiry of the guarantee.The counter-guarantor shall without delay

45、 inform the instructing party of any demand under the counter-guarantee and of any request,as an alternative,to extend the expiry of the counter-guarantee.Inform Non-complying demand?,28,URDG758,Article17 Partial demand amount of demand Partial demand:A demand may be made for less than the full amou

46、nt available Multiple demand:More than one demand may be made Multiple demand prohibited:only one demand covering all or part of the amount available may be made one demand is rejected,another demand can be made on or before expiry of the guarantee.It is a non-complying demand if:it is for more than

47、 the amount available under the guarantee,or any supporting statement or other documents required by the guarantee indicate amounts that in total are less than the amount demanded.The case less than and more than?,29,URDG758,Article 18 Separateness of each demanda.Making a demand that is not a compl

48、ying demand or withdrawing a demand does not waive or otherwise prejudice the right to make another timely demand,whether or not the guarantee prohibits partial or multiple demands.b.Payment of a demand that is not a complying demand does not waive the requirement for other demands to be complying d

49、emands.,30,URDG758,Article 19 Examination The guarantor shall determine,on the basis of a presentation alone,whether it appears on its face to be a complying presentation.Data in a document required by the guarantee shall be examined in context with that document,the guarantee and these rules.Data n

50、eed not be identical to,but shall not conflict with,data in that document,any other required document or the guarantee.The guarantor will accept a document if its content appears to fulfil the function of the document required by the guarantee.Any signature will be accepted if a singed document is r