ICC Prepares Alignments of ISBP745, eRules

Following its decision to initiate a six-month review of all 140 ICC Opinions issued since formulation of ISBP745 in 2013 and evaluate the fitness of ISBP745 (Oct 2022 DCW 25), the ICC Banking Commission released the findings of its Working Group. Nine Opinions were identified as containing content that would be meaningful for addition within ISBP. As outlined in a 28 February 2023 email from ICC Banking Commission Policy Manager Tomasch Kubiak, these comprise:

• New Preliminary Consideration viii) stating that the absence of a credit reference number, or the mistyping of a credit reference number, on a document is not a valid reason for refusal. (Opinion 876rev)
• New Preliminary Consideration ix) providing that administrative conditions such as a requirement for an additional photocopy of all documents, or a statement that all documents may not be stapled, should not be incorporated by an issuing bank in a credit. (Opinion 915rev)
• Add ‘Industries’ to paragraph A1 (Abbreviations). (Opinion 837rev)
• Add new paragraph A17 (b) (Documents and the need for completion of a box, field or space) stating that there is no requirement for the applicant name, address and contact details (if any) to appear in a specific box, field or space on an invoice. (Opinion 818rev)
• Add new paragraph A31 (b) (copy documents) stating that copies of documents need not be signed and move existing A31 (b) to A31 (c). (Opinion 842rev3)
• Add new paragraph C7 (general issues relating to invoices) providing that an invoice presented under a credit issued in USD, bearing only the “$†sign without further qualification, fulfils the requirement of UCP 600 sub-article 18 (a) (iii) unless data in the invoice itself, or another presented document, implies that the “$†sign may refer to a currency other than USD. (Opinion 814rev4)
• Add new paragraphs D5 (e) (multimodal transport document), E5 (e) (bill of lading), & F4 (e) (non-negotiable sea waybill) stating that the signature of the master (captain) may be accompanied by a stamp that incorporates the name of the vessel. (Opinion 813)
• Add new paragraph G4 (c) (charter party bill of lading) stating that the signature of the master (captain) may be accompanied by a stamp that incorporates the name of the vessel. (Opinion 836rev)
• Add new paragraph K2 (b) stating that UCP 600 does not require that an agent or proxy is to be named in an insurance document and move existing paragraph K2 (b) to K2 (c). (Opinion 835rev)

Simultaneously, another Working Group conducted a review of eUCP and eURC for purposes of aligning these eRules with the UNCITRAL Model Law on Electronic Transferrable Records (MLETR). In his email, Kubiak elaborated on the nature and intention of the effort:

“It is very important to note that this was not a revision nor an update of the eRules. It was solely an alignment with MLETR with respect to electronic transferable records.

As stated in the ICC Commentary on the eRules, it is necessary to consider each applicable legal system with respect to usage of the eRules in order to determine whether there is any substantive conflict between the eRules definitions and those contained in the local law.

At the time of drafting the eRules, very little key legislation was in place, thereby negating any need at the time to include definitions or clarification of the meaning of an electronic transferable record.

However, recent developments have now made it evident that enhanced alignment with MLETR, and similar legal developments elsewhere around the world, would provide intrinsic benefit.”

The specific changes involve various adjustments to eUCP sub-article e3(b) and eURC sub-article e4(b), including a new definition: “Electronic transferable record means an electronic record that contains the information that would be required in the equivalent paper document, such as a negotiable bill of lading or an assignable insurance document.”

The newly aligned Versions of the eRules will be known as eUCP Version 2.1 and eURC Version 1.1. Work has also commenced on formulating electronic documentary credit templates as an appendix for the eUCP.

In responding to an email from DCW, Kubiak indicated that the versions will not be finalized before all members through their ICC National Committees have the opportunity to provide comments. In the case of ISBP, “given the update is aiming at implementing already final opinions we anticipate minimal feedback”, Kubiak added. The intended aim for entry into force is 1 July 2023.