DCW maintains a list of recently-decided court cases involving commercial letters of credit, demand guarantees, and other trade finance instruments.
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The ICC’s Incoterms® rules only reflect the most commonly used commercial practice. Therefore, where a situation demands and parties are in agreement, the rules may be amended to deviate from the default provisions or add to the rules to bring more precision.
The ICC’s Incoterms® rules only reflect the most commonly used commercial practice. Therefore, where a situation demands and parties are in agreement, the rules may be amended to deviate from the default provisions or add to the rules to bring more precision.
The variation of Incoterms, if agreed to by parties, is reflected in the sales contract. LC specialists inter alia should have an understanding of these variations to make sure that the terms of the LC reflect these variations. For instance, the status of freight charges to collect which transport documents routinely are required to show; similarly the insurance document with regards the insured value and the type of cover. Also, some banks collateralise imported goods and therefore have an interest in the goods. The applicant submits the sales contract with their LC opening request which is reviewed by LC specialists. LC specialists must ensure that their bank’s interests are protected.
Incoterms 2020, Incoterms 2010, and Incoterms 2000 recognise this and do not prohibit alterations/variations of the rules. Wording to this effect can be found in the Introduction section of Incoterms 2020, which is a replica of Incoterms 2010 except for the phrase “… to vary the point at which delivery is made and risk transfers to the buyer” which in 2010 was “… to vary the point at which the risk passes from seller to the buyer”.
Incoterms 2020 states:
In the rules, (both Incoterms 2020 & Incoterms 2010), the words “Unless otherwise agreed …” appear several times in the context of cost allocation. Incoterms 2000 discusses ‘variants’ succinctly. Unlike 2020 or 2010, examples of those variants and their usage in the shipping industry are also addressed.
In the first of his series of DCW articles on major issues surrounding potential revision of UCP, ICC Banking Commission Senior Technical Advisor Dave Meynell examines the concept of negotiation.
Letter of credit cases can reveal a great deal about how the industry's practice rules and standards are viewed and interpreted by the courts.
When issuing banks insert complex reimbursement terms and self-serving conditions into their credits, it distorts the purpose of the product, causes problems for confirming banks, and drives exporters away from using LCs.
DCW Editorial Note: This previously unpublished material reflects the thinking and writing of Professor James E. Byrne over the period
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