ICC Draft Opinions for April 2023 Meeting Released

Two draft opinions, one new and one re-submitted, were released in mid-February to ICC National Committees for review and comment by 4 April. The pending opinions will then be addressed at the next session of ICC Banking Commission’s quarterly discussion of Opinions on 18 April 2023.

Draft Opinion TA927 was first discussed at the January 2023 Opinions session. Despite an estimated two-thirds of ICC National Committees commenting on the opinion already supporting the overall approach of the proposed text of TA927, it was decided a more focused analysis was needed and that TA927 would be re-drafted and taken up for discussion at the April meeting.

TA927 involves a query in which a nominated bank challenged an issuing bank’s deduction of a USD 100 fee for a discrepancy that the presented invoice evidenced free of charge goods which was not allowed as per the LC issued subject to UCP600. The query asked if the discrepancy is valid and also if the wording of ISBP745 Paragraph C12(b) should be interpreted as “it means to prohibit an invoice indicating goods stated to be free of charge under any circumstances unless allowed by the L/C”.

In the preliminary round of discussion of TA927, three sticking points emerged: 1) The practice contained in ISBP745 Paragraph C12(b) differs from practice described in prior ISBP iterations; 2) Interpretation of “free of charge”; and 3) Classification of the goods in the invoice.

Draft Opinion TA930 deals with a UCP600 credit containing a sanctions clause. Documents presented by the nominated bank were accepted by the issuing bank, but the nominated bank was informed prior to maturity that the issuing bank was unable to effect payment because of “local and international laws and regulation and economic trade sanctions.” Questions posed by the nominated bank ask whether the sanctions clause constitutes a non-documentary condition, whether the issuing bank is bound to honour its obligation under the LC, whether the issuing bank is obliged to provide evidence of sanctions applicable to it, and whether the issuing bank’s obligation remains valid until such time it can make payment.