R Routledge LEGAL ASPECTS OF TRADE FINANCE. Dr C Chatterjee LL.M (Cambridge), LL.M, Ph.D (London) Barrister. Taylor & Francis Croup

Transcription

1 LEGAL ASPECTS OF TRADE FINANCE Dr C Chatterjee LL.M (Cambridge), LL.M, Ph.D (London) Barrister R Routledge Taylor & Francis Croup LONDON AND NEW YORK

2 CONTENTS List of Cases xii 1 Chapter 1 Methods of Payment in Export Trade Methods of Payment Advance Payment Risks for the Exporter Risks for the Importer Open Account Goods on Consignment Payment by Letters of Credit Advantages of using Letters of Credit Advantages to an Exporter Disadvantages to an Importer Disadvantages to an Exporter Disadvantages to the Importer The Information that a Documentary Credit must contain Deferred Payment Countertrade The most popular types of countertrade Counterpurchase Some of the important issues which should be considered by a trader prior to his embarking upon countertrade Barter Buy-back Switch Trading Offset Evidence Accounts

3 LEGAL ASPECTS OF TRADE FINANCE Chapter :2 Types of Bills Foreign Bills The Cleared Bill Avalised Bills The UN Convention on International Bills of Exchange and International Promissory Notes, 1988 An Anatomy of the Convention An Analysis of the Convention Sphere of Application and Form of the Instrument Interpretation Transfer Rights and Liabilities The Drawer The Maker The Drawee and the Acceptor The Endorser The Transferor by Endorsement or by mere Delivery The Guarantor Presentment, Dishonour by Non-acceptance or Non-payment and Recourse Recourse Protest Notice of Dishonour Discharge Lost Instruments Limitation (Prescription) Final Provisions Comments Chapter 3 Types of Credit

4 Contents 3.2 Types of Credit used in Export Trade Stand-by Credits Deferred Credits Transferable credit Back-to-Back Credit Red Clause Credits Revolving Credits Transit Credits Chapter 4 Letters of Credit A General Discussion of Letters of Credit Transactions The Principle of Autonomy of Letters of Credit The Doctrine of Strict Compliance Irrevocability of a Letter of Credit The Stages of a Letter of Credit Transaction Chapter 5 Liabilities of Parties Involved in the Documentary Mechanism Credit Advising Bank's Liability Liability of Issuing and Confirming Banks Liability of an Issuing Bank Liability of a Confirming Bank Parties' including Third Parties' Duties as regards 65 Documentary Credits 5.5 Liabilities and Responsibilities of Banks in regard to 66 Examination of Documents 5.6 Banks' Liabilities and Responsibilities in regard to 72 Discrepant Documents and Notice 5.7 What does Discrepancy of Documents stand for? Vll

5 LEGAL ASPECTS OF TRADE FINANCE Chapter 6 Legal Aspects of Short-term Finance for Exports Types of Short-term Finance Loan or overdraft against an assignment of a credit insurance policy A Smaller Export Scheme Loan or overdraft to be settled from the Proceeds of Exports Sale Other Forms of Finance Documentary Credit Advances against Collections (Documents against Payment and Documents against Acceptance) Negotiation of Bills Hire Purchase Leasing Forfeiting Advantages of Forfeiting: Disadvantages of Forfeiting Non-recourse Finance Factoring Historical Growth and Development of Factoring The Different Forms of Factoring Full factoring Agency Factoring Recourse Factoring Confidential Factoring Maturity Factoring Why Factoring may be a useful Source of Trade Finance? Certain Limitations of Factoring Relationship between a Factor and its Clients and Debtors Relationship with the Client

6 Contents The Factor's Relations with the Debtors Factoring and Negative Pledge Statutory Equitable Set-off Set-off in Insolvency Guarantees and Indemnities Assessment of the Client's Position International Factoring Other Forms of International Factoring Direct Export Factoring Direct Import Factoring Back-to-Back Factoring Assignment The UNIDROIT Conventions on International Factoring and International Financial Leasings Chapter 7 Bills of Exchange The Bills of Exchange Act, 1882 General Basic Aspects of Bills of Exchange Acceptance and Delivery of a Bill Capacity and Authority of Parties Holder in Due Course Negotiation of Bills General Duties of the Holder Rules as to Presentment for Acceptance and Non-acceptance Liabilities of Parties Discharge of Bill Acceptance and Payment for Honour Conflict of Laws Issues Cheques on a Banker

7 LEGAL ASPECTS OF TRADE FINANCE 7.15 Promissory Notes Supplementary (Part V) Chapter 8 ICC Uniform Rules for Collection, 1995 Revision Definitions and Parties to a Collection Form and Structure of Collections Collection Instructions Form of Presentation Release of Commercial Documents Liabilities and Responsibilities Judicial Guidelines Developed by the English Courts 157 in relation to Collection of Documents Chapter 9 Bonds and Guarantees Produce Loans Risk Minimisation in respect of Produce Loans Bonds and Guarantees The Principal Types of Bond Bid or Tender Bond Advance Payment Bond Performance Bond Retention Bond Certain Comments on these Bonds Legal Aspects of Bonds The Method of Determining the Governing Law 173 of Performance Bonds and the Guarantees 9.5 Comments The UN Convention on Independent Guarantees 177 and Stand-by Letters of Credit,

8 Contents An Anatomy of the Convention An Analysis of the Convention Scope of Application Interpretation Form and Contract of Undertaking Rights, Obligations and Defences Provisional Court Measures Conflict of Laws Final Clauses (Articles 23-29) Comments Uniform Rules for Contract Guarantees, 1978 (International Chamber of Commerce - ICC) Definitions Tender Guarantees Performance Guarantees Repayment Guarantee Liability of the Guarantor to the Beneficiary Submission of Claim Expiry of Guarantees Amendments to Contracts and Guarantees Applicable Law an Settlement of Disputes Table. o( Statutes Table iof International Conventions Other Primary Sources Other Sources Index