CTBC Bank Co. v. Industrial Commercial Bank of China Ltd. [2024]

Issuer ICBC applied to stay action alleging forum non conveniens.

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CTBC Bank Co. v. Industrial Commercial Bank of China Ltd.
[2024] HKCFI 2820 [Hong Kong]

Type of Lawsuit: Issuer applied to stay action alleging forum non conveniens.

Topics: Bills of Exchange; Discrepancies; Forum non conveniens; Fraud; Good Faith; Negotiation; Parallel Proceedings; UCP600 Article 7(c)

Parties:
• Plaintiff/Negotiating Bank – CTBC Bank Co., Ltd., a Taiwanese bank
• Defendant/Issuer – Industrial Commercial Bank of China, Ltd., incorporated in PRC.
• Seller/Beneficiary – VLSA Enterprise Ltd., a Seychelles company.
• Buyer/Applicant – Guizhou New Era Union Import and Export Co. Ltd.
• Third Party – Oppten International Ltd.
• Shipper – China Ocean Shipping Agency Qinzhou

Underlying Transaction: Sale and purchase of green petroleum coke.

Instrument: UCP600 LC for CNY 63,204,011.73. No express choice of law, Chinese law applied.

Decision: The High Court of Hong Kong, Court First of Instance, Chan, J., denied the requested summons.

Rationale: Application to stay action on basis of forum non conveniens rejected where issuing bank failed to make good arguable case that jurisdiction holding parallel proceedings was clearly more appropriate forum; negotiating bank entitled to have its claim on UCP600 undertaking heard in instant court.

Factual Summary:

To support its purchase of 61,066 MT of green petroleum coke, Guizhou New Era Union Import and Export Co. Ltd. (Buyer/Applicant) applied for and caused Industrial Commercial Bank of China, Ltd., Guizhou branch, (Issuer) to issue a CNY 63,204,011.73 UCP600 letter of credit in favour of VLSA Enterprise Ltd. (Seller/Beneficiary). CTBC Bank Co., Ltd. (Negotiating Bank), was nominated by Issuer; late May 2023, Seller/Beneficiary tendered Negotiating Bank with an application and complying bills of exchange requesting that they be discounted (90-days sight). The next day, Negotiating Bank forwarded the documents to Issuer. Seller/Beneficiary later presented a revised commercial invoice to Negotiating Bank which was passed on to Issuer.

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Subsequent Litigation:
• CTBC Bank Co. v. Industrial Commercial Bank of China Ltd., [2024] HKCFI 3525 [Hong Kong] (dismissing application for leave to appeal denial of forum non conveniens application)

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