論信用證軟條款外文文獻及譯文

1、鄭州科技學院本科畢業(yè)論文（外文翻譯）題 目 論信用證的軟條款及自我防范措施 學生姓名 胡亞蘭 專業(yè)班級 09級國際經(jīng)濟與貿(mào)易三班 學 號 200936063 院 （系） 經(jīng)濟貿(mào)易系 指導教師(職稱) 王自娜 完成時間 2013 年 月 日 Fraud in the Letter of Credit Transaction and its Possible ArbitrationInstitute of Comparative Law McGill University Gernot Fohler Abstract The letter of credit continues to play a

2、n indispensable role in the financing and securing of international commercial transactions. Its usefulness and efficacy derives primarily from the fact that it is independent from the underlying relationship between buyer and seller. In a considerable number of cases, however, the independence of t

3、he letter of credit has been challenged as a result of fraud in the underlying transaction. After analyzing recent reforms of the regulatory framework governing letters of credit, this fraud exception to the independence principle will be reappraised in the light of current developments in Canada an

4、d the United States. Finally, the author argues that arbitration can and indeed should play an increasingly important role in the resolution of international letter of credit disputes involving fraud in the transaction.1 About L/C fraud The L/C cycle operates in the following way: after a buyer and

5、a seller have entered into a sales contract, the buyer applies for a L/C from an issuing bank. Upon receiving the L/C, the seller would check its authenticity with an advising bank. Having confirmed the L/C is correct, the seller exports the goods and prepares a series of documents such as Inspectio

6、n Certificate, Bill of Lading etc., proving to its negotiating bank that the goods shipped are in accordance with the buyers standard. Before the negotiating bank releases money to the seller, it will check on face value that the submitted documents tally with the buyers instruction. Thereafter, the

7、 negotiating bank will forward the documents to the buyer through its issuing bank.In order to obtain these documents from the issuing bank, the buyer will have to either complete its payment or enter into mutual agreement with the issuing bank on a payment date. With the documents at hand, the buye

8、r could get the goods at the port and thus the L/C cycle completes. The entire L/C cycle is governed by the internationally recognized regulation UCP 600, which is issued by the International Chamber of Commerce.The L/C cycle is comparable to credit card transactions, in which a bank promises to pay

9、 on behalf of the buyer (.Independence Principle).This payment method is independent from the underlying business transaction. The bank is complied to honor the L/C as long as the submitted documents, on its face, is correct. (Compliance Principle)Despite the availability of regulations and scrutiny

10、 of the banks, there is inevitably weakness in the L/C system. It is not uncommon for the fraudsters to exploit the Independence Principle and the Compliance Principle. After all, the bank only examines the document, but not physically examines the goods at the port.It is common for sellers to cheat

11、 the L/C cycle. As in a typical L/C fraud scenario, a seller ships out substandard goods ( short shipment). In other cases, the shipment in fact may not exist ( false shipment) where the seller defrauds the bank by presenting false Bill of Lading to support the existence of the shipment. If the bank

12、 fails to timely discover the scam, it will release money to the seller and then, the case will not surface until the buyer physically receives the goods at a later stage.Although it is not prevalent, a buyer sometimes cheats the L/C cycle. The typical trick is that a buyer places an order to a sell

13、er and requests the payment be settled by L/C. The buyer also requests to arrange transportation for the goods. Then, the buyer appoints a third party for the application of L/C. A legitimate L/C will be sent to the seller. After the seller checks correct the L/C, the goods will be handed over to th

14、e transportation company as denoted by the buyer. However, the transportation company is in fact a party to the buyer, which provides incorrect information to the shipping company on the Bill of Lading. Although the goods finally reach the destination country, the seller fails to honor the L/C becau

15、se of the incorrect Bill of Lading.Another common type of L/C fraud is known as L/C Kiting. Some merchants may think of obtaining cash flow by using their existing credit facility at their bank, such as L/C, without there being a genuine underlying transaction. By honoring an L/C, the fraudster coul

16、d improve cash flow of the company at a comparatively low interest rate. Because the underlying transaction is false, both the seller and the buyer will commit in offence, even though the loan is fully settled in the future. To prevent falling into the L/C fraud trap, it is always a good policy to b

17、e better acquainted with clients (Know Your Client Policy).2 Fraud in the Letter of Credit transactionIt has been commonly stated that the only recognized exception to the independence principle is in the case of fraud in the transaction. Though such a view fails to recognize that the fraud in the t

18、ransaction scenario also constitutes an exception to the rule of strict compliance, it is true that, in the past, courts in Canada and the United States have been willing to disregard the independence principle in order to prevent honor under the credit because of abusive or fraudulent demands. It i

19、s the purpose of this section to reappraise the circumstances under which courts in Canada and the United States have been willing to grant this exception in the light of recent jurisprudence.In order to depict a fraud in the transaction situation, as well as to provide a brief historical review of

20、the origin of the fraud exception, the landmark decision of Sztejn v. Henry Schroeder Banking Corp will be discussed. Next the statutory approach to the fraud exception will be outlined before the scope of the fraud exception and its locus will be described. Afterwards the legal remedies available t

21、o the parties in a fraud scenario will be examined. This section closes with an analysis of the standard that constitutes fraud and the duties of care that the issuer awes to both the applicant and the beneficiary.2.1 Sztejn v. Henry Schroeder Banking Corp.The exception concerning fraud in the trans

22、action can be traced back to the American decision of Sztejn v. Henry Schroeder Banking Corp. In Sztejn, the plaintiff, an American buyer, contracted to purchase a number of bristles from Transea Traders, an Indian-based corporation. In order to pay for the bristles, Sztejn agreed with Henry Schroed

23、er Banking Corp., the .American issuer, to open an irrevocable letter of credit, in which it was stipulated that payment will be made by shipment of the goods and upon presentation of a bill of lading and a commercial invoice.Instead of delivering bristles, Transea Traders shipped a number of crates

24、 filled with “cowhair, other worthless material and rubbish," in order "to simulate genuine merchandise and to defraud the buyer." Nonetheless, Transea Trader managed to acquire documents that were consistent with the terms and conditions of the credit. Before the bank paid the draft,

25、 the plaintiff discovered the fraud and sought injunctive relief in order to declare the letter of credit to avoid it from being honored.In its analysis the court first revisited the "well established" independence principle. It stated that the application of the independence rule is limit

26、ed to situations in which the accompanying documents are "genuine and conform with the requirements of the letter of credit.” In so doing, the court was actually making two points. First it assumed that adherence to the rule of strict compliance is a prerequisite to upholding the independence p

27、rinciple. Second, it held that the independence principle is not intended to legitimize the tendering of falsified or fraudulent documents.The court then went on to say that" where the seller's fraud has been called to the bank's attention before the drafts and documents have been prese

28、nted for payment. The principle of the independence of the bank's obligation under the letter of credit should not be extended to protect the unscrupulous seller.”In so ruling, the court laid the foundations for what is today classified as the fraud exception in letter of credit transactions.The

29、 court remarked that the case before it was not a "breach of warranty" but rather one of "active fraud." Therefore, no "hardship is caused.where fraud is claimed, where the merchandise is not merely inferior in quality but consists of worthless rubbish, where the draft and t

30、he accompanying documents are in the hands of one who stands in the same position as the fraudulent seller, where the bank has been given notice of the fraud before being presented with the drafts and documents for payment.”Enjoining payment of the draft in such situations protects not only the inte

31、rests of the applicant, but also those of the issuing bank, since a bank is "vitally interested in assuring itself that there are some goods represented by the documents.”Since Sztejn courts around the world, including Canadian and American courts, have recognized and established the fraud exce

32、ption in both documentary and standby credit transactions. In the United States, the Sztejn decision and others following it inspired the drafters of art. 5 U.C.C. to include a provision bringing fraudulent transactions within the scope of the U.C.C. which in amended form, was re-established in the

33、revised 1995 version.3 Legal remedies available to the parties in a fraud scenarioIn order to assess the prospects of arbitration succeeding as an alternative to litigation in a fraudulent letter of credit dispute, it is first necessary to understand the legal remedies available to the parties in su

34、ch a context.Misconduct by the beneficiary in a letter of credit transaction can give rise to many kinds of judicial proceedings. It follows from this that the range of possible legal action available to the parties in a fraudulent letter of credit transaction, as well as the procedural and tactical

35、 measures to be undertaken, will ultimately depend on the facts of each particular case and, therefore, cannot be covered comprehensively. There are, however, three typical judicial recourses to which the parties commonly resort in order to protect their rights in a fraudulent letter of credit trans

36、action.3.1 Interlocutory injunction by the applicant3.1.1 GeneralThe first and most important proceeding available to the applicant is a motion for an interlocutory injunction seeking to prevent the issuer from honoring the beneficiary's demand for payment. This is what occurred in Sztejn, in wh

37、ich the applicant learnt prior to honor that the beneficiary had attempted to wrongfully draw under the credit. The court will only order an interlocutory or provisional injunction preventing the issuer from paying the beneficiary upon proof being made by the applicant that it would suffer irreparab

38、le prejudice even before the institution of an action as a result of the alleged fraud.In general, however, courts are reluctant to grant such injunctive relief and in only few cases will the injunction be maintained in subsequent judicial proceedings.3.1.2 CanadaIn Canada, there is no specific fede

39、ral law governing the issuing of interlocutory injunctions in a fraud in the transaction scenario. Thus, in such cases provincial law applies.A distinction, however, must be made between the fraud test in an application for an interlocutory injunction and that in a non-provisional judicial proceedin

40、g. In contrast to a court action, in which fraud must be dearly and obviously established, a strong prima facie case of fraud suffices on a motion for an interlocutory injunction. It is acknowledged, however, that while the conclusions drawn in earlier cases offer valuable guidance, "the circum

41、stances of each case must be considered in their own unique light” in order to assess whether injunctive relief should be granted.3.2 Action by the beneficiary against the issuerThe second type of legal proceeding that commonly arises in a fraud context is an action taken by the beneficiary against

42、the issuer when the latter has wrongfully dishonored the letter of credit. Here, the issuer has decided to refuse payment to the beneficiary, since it received notice by the applicant of an alleged fraud committed by the beneficiary. Consequently, the beneficiary seeks to prove that it committed no

43、fraud, and that the issuer, therefore, breached its obligation under the credit to honor any documentary presentation in compliance with the terms of the credit. Therefore, the courts must first determine what generally constitutes fraud and whether the particular case before it meets the definition

44、 of fraud. The second, but interconnected, question then is whether the proof or demonstration of such fraud suffices in order to relieve the issuer of its obligation to pay under the letter of credit. In other words, the courts must determine the obligations of the issuer when confronted with proof

45、 or an allegation of fraud.3.3 Action by the Issuer against the applicantIn the third fraud scenario, the issuer institutes an action against the applicant in which it seeks reimbursement. Although the issuer has honored the letter of credit the applicant refuses to indemnify the issuer, since the l

46、atter paid the beneficiary notwithstanding the fact that it received prior notice by the applicant that the beneficiary was not entitled to payment because of an alleged fraud. In this action, the issuer seeks to establish that there was a sufficient and justified reason to effect payment under the

47、credit and that it is, therefore, entitled to reimbursement. Again, the question arises whether the allegations made by the applicant actually establish fraud, and, whether the issuer's decision to nonetheless honor the letter of credit was justified in the light of the evidence of fraud present

48、ed by the applicant.4 SummaryIt is an interesting fact that each of these typical judicial proceedings arising from allegations of fraud involves the issuer. This is surprising because the fraud originates in the underlying relationship to which the issuer is not privy. It is arguable, therefore, th

49、at the fraud question should be litigated between the parties to the underlying transaction rather than between the issuer and the applicant or between the issuer and the beneficiary. One must bear in mind that ultimately, the issuer serves only as a solvent intermediary processing documents and pay

50、ment. Thus, from the issuer's perspective, the fraud exception to the independence principle is very unfortunate since it is often dragged into judicial proceedings for reasons beyond its control and that have nothing to do with its role as intermediary in the transaction. The consequences of su

51、ch judicial proceedings are all the more harsh when considering the fact an issuer may end up with bearing the loss as a result of these proceedings, i.e. the parties have successfully transferred their problem to the issuer. As it has been stated, there is - in brutal business terms - nothing in it

52、 for the issuer.交易中的信用證欺詐及其可能的仲裁比較法研究院 麥吉爾大學 Gernot Fohler摘 要 信用證在金融和國際商業(yè)交易的安全上繼續(xù)發(fā)揮著不可或缺的作用。它的實用性和有效性主要源于它是獨立于買方與賣方。但是，在國際貿(mào)易相當數(shù)量的案例中，信用證的獨立性受到了挑戰(zhàn)，主要因為在基礎(chǔ)交易中的欺詐行為。通過分析監(jiān)管治理框架中對于最近信用證的改革，說明信用證欺詐例外對于其獨立性原則，就加拿大和美國得當期發(fā)展做出重新評估。最后，筆者認為，仲裁可以而且確實應該在國際貿(mào)易中信用證欺詐的解決爭端里發(fā)揮越來越重要的作用。1 關(guān)于信用證欺詐信用證按照以下操作方式進行：在買方和賣方達成一個

53、銷售合同時，由買方向開證行申請開立信用證。在收到信用證時，賣方將與通知行核對其真實性。經(jīng)確認信用證正確無誤后，賣方發(fā)運貨物，準備檢驗證書、提單等一系列單據(jù)文件并提交給議付行以證明其發(fā)運的貨物買方的標準一致。議付行向賣方議付貨款前，將按照買方的指示檢查賣方所提交的文件表面上是否與信用證規(guī)定一致。此后，議付行將上述文件交給開證行并索償。買方為了從開證行那獲得這些文件，就須完成其付款或按照與開證行的共同商定在到期日付款。憑借這些代表物權(quán)憑證的文件，買方可以在卸貨港的提取貨物，至此，信用證的整個環(huán)節(jié)到此結(jié)束。整個信用證的環(huán)節(jié)按照由國際商會發(fā)行的，國際公認的監(jiān)管規(guī)則信用證統(tǒng)一慣例（UCP600）進行的。

54、信用證環(huán)節(jié)與信用卡交易相似，即銀行以買方的名義承諾支付貨款（即獨立原則）。這種付款方式是獨立于基本的業(yè)務(wù)交易。銀行是履行遵守其信用證下的責任付款，只要所提交的文件在表面上看來是與信用證相符的（即符合原則）。 盡管有銀行條例和審議的雙重可用性，在信用證支付環(huán)節(jié)中也不可避免的存在漏洞。國際上欺詐者就利用信用證的獨立原則和相符原則。畢竟，銀行只檢查相關(guān)的文件，而不是檢查在港口的貨物。賣方在信用證支付環(huán)節(jié)中進行欺詐是較普遍的。正如在一個典型的信用證欺詐情況里，賣方發(fā)運不合格的商品（如短裝）。在其他情況下，其實裝運可能都不存在（即假裝運），即賣方將虛假的海運提單提交給銀行，以證明其貨物的裝運。如果銀行未

55、能及時發(fā)現(xiàn)該騙局，它就會釋放資金給賣方，然而，案件直到買方實際收到貨物后后才會被發(fā)現(xiàn)。買家有時也會進行信用證欺詐，雖然這種情況并不普遍。這種情況典型的方式是，買方和賣主達成一筆交易，并且要求以信用證支付為結(jié)算方式。同時，買方還要求自行安排貨物的運輸。然后，買方指定第三方申請開立信用證，這樣一個合法的信用證將被發(fā)送給賣方。賣方檢查完信用證后，將貨物交給由買方指派的運輸公司。然而，運輸公司與買方串通，在提單上提供不正確的信息。雖然貨物最終運送到目的國，賣方由于提單的不正確而無法獲得貨款。另一種信用證欺詐的形式是空頭信用證。有些商人可能想通過他們的銀行在其現(xiàn)有的信貸里獲得現(xiàn)金流，例如利用不真實交易開

56、立信用證騙取銀行資金。通過信用證的議付，欺詐者可以以一個相對較低的利率來改善公司的現(xiàn)金流。由于這個基礎(chǔ)交易是虛假的，無論是賣方和買方都會構(gòu)成犯罪，即使此項貸款在將來可以還上。為了防止掉進信用證欺詐的陷阱，一個好的建議就是與熟悉的客戶交易。（即“了解你的客戶的原則” ）。 2 信用證欺詐交易當今國際上普遍表示，只在交易的欺詐情況中承認對于獨立性原則的信用證欺詐例外原則。而然這種觀點沒有認識到，交易情況中欺詐對于嚴格相符規(guī)則也構(gòu)成了例外。過去，加拿大和美國的法院都愿意為了阻止信用證因偽造或欺詐的行為而獲得支付，而不顧信用證的獨立原則。本節(jié)的目的就是在重新評估在加拿大和美國的法院對于欺詐都愿意給予信

57、用證欺詐例外的情況。首先，為了描繪交易中的欺情況，以及提供一個明確的信用證欺詐例外的歷史起源，將討論Sztejn起訴亨利施羅德銀行這個具有里程碑意義的案例。其次，在信用證欺詐例外的范圍以及其軌跡加以說明前，將概述法定信用證欺詐例外。再次，在符合法律規(guī)定的情況下，審查欺詐的當事雙方的法律補救措施。最后，將分析構(gòu)成信用證欺詐的標準和信用證申請人和受益人防止欺詐應有的義務(wù)和責任。 2.1 Sztejn起訴亨利施羅德銀行關(guān)于信用證欺詐例外，可以追溯至美國的Sztejn決定訴亨利施羅德銀行開始。作為原告的Sztejn是一個美國的進口商，同印度出口商Transea商貿(mào)公司簽約合同，購買一定數(shù)量的刷毛。為了

58、支付刷毛的貨款，Sztejn向開證行，即意亨利施羅德銀行申請開立不可撤消信用證。其中規(guī)定在貨物裝運后憑出具的海運提單和商業(yè)發(fā)票付款。 然而，Transea商貿(mào)公司并沒有發(fā)運合同規(guī)定的刷毛，而是發(fā)運了相應數(shù)量裝滿“牛毛和其他不值錢的東西”的箱子，以“充當真正的商品來欺詐買方。”盡管如此，Transea商貿(mào)公司成功獲得了與信用證條款相一致的單據(jù)文件。就在銀行支付貨款之前，該案原告發(fā)現(xiàn)了欺詐行為，并尋求法院的禁令救濟，以宣布信用信無效來阻止銀行的付款。在該案的分析中，法院第一次重新確立尚已成熟的信用證獨立性原則。它申明信用證獨立性原則的運用僅適用有限的情況，即交易中所附的文件是“真正的并且符合信用證的要求”。 法院這樣做，實際上提出了兩點。第一，它認定堅持獨立自主原則的前提是堅持嚴格相符的原則。第二，它認為獨立自主原則的目的并不是使偽造或欺詐性文件變得合法化。法院接著判定，如果在單據(jù)和文件已提交銀行并要求付款前，銀行就注意到賣方的欺詐行為。那么，對