外文文献及译文--交易中的信用证欺诈及其可能的仲裁.doc

郑州科技学院本科毕业论文（外文翻译）题 目 论信用证的软条款及自我防范措施 学生姓名 胡亚兰 专业班级 09级国际经济与贸易三班 学 号 200936063 院 （系） 经济贸易系 指导教师(职称) 王自娜 完成时间 2013 年 月 日 Fraud in the Letter of Credit Transaction and its Possible ArbitrationInstitute of Comparative Law McGill University Gernot Fohler Abstract The letter of credit continues to play an indispensable role in the financing and securing of international commercial transactions. Its usefulness and efficacy derives primarily from the fact that it is independent from the underlying relationship between buyer and seller. In a considerable number of cases, however, the independence of the letter of credit has been challenged as a result of fraud in the underlying transaction. After analyzing recent reforms of the regulatory framework governing letters of credit, this fraud exception to the independence principle will be reappraised in the light of current developments in Canada and the United States. Finally, the author argues that arbitration can and indeed should play an increasingly important role in the resolution of international letter of credit disputes involving fraud in the transaction.1 About L/C fraud The L/C cycle operates in the following way: after a buyer and a seller have entered into a sales contract, the buyer applies for a L/C from an issuing bank. Upon receiving the L/C, the seller would check its authenticity with an advising bank. Having confirmed the L/C is correct, the seller exports the goods and prepares a series of documents such as Inspection Certificate, Bill of Lading etc., proving to its negotiating bank that the goods shipped are in accordance with the buyers standard. Before the negotiating bank releases money to the seller, it will check on face value that the submitted documents tally with the buyers instruction. Thereafter, the negotiating bank will forward the documents to the buyer through its issuing bank.In order to obtain these documents from the issuing bank, the buyer will have to either complete its payment or enter into mutual agreement with the issuing bank on a payment date. With the documents at hand, the buyer could get the goods at the port and thus the L/C cycle completes. The entire L/C cycle is governed by the internationally recognized regulation UCP 600, which is issued by the International Chamber of Commerce.The L/C cycle is comparable to credit card transactions, in which a bank promises to pay on behalf of the buyer (.Independence Principle).This payment method is independent from the underlying business transaction. The bank is complied to honor the L/C as long as the submitted documents, on its face, is correct. (Compliance Principle)Despite the availability of regulations and scrutiny of the banks, there is inevitably weakness in the L/C system. It is not uncommon for the fraudsters to exploit the Independence Principle and the Compliance Principle. After all, the bank only examines the document, but not physically examines the goods at the port.It is common for sellers to cheat the L/C cycle. As in a typical L/C fraud scenario, a seller ships out substandard goods ( short shipment). In other cases, the shipment in fact may not exist ( false shipment) where the seller defrauds the bank by presenting false Bill of Lading to support the existence of the shipment. If the bank fails to timely discover the scam, it will release money to the seller and then, the case will not surface until the buyer physically receives the goods at a later stage.Although it is not prevalent, a buyer sometimes cheats the L/C cycle. The typical trick is that a buyer places an order to a seller and requests the payment be settled by L/C. The buyer also requests to arrange transportation for the goods. Then, the buyer appoints a third party for the application of L/C. A legitimate L/C will be sent to the seller. After the seller checks correct the L/C, the goods will be handed over to the transportation company as denoted by the buyer. However, the transportation company is in fact a party to the buyer, which provides incorrect information to the shipping company on the Bill of Lading. Although the goods finally reach the destination country, the seller fails to honor the L/C because of the incorrect Bill of Lading.Another common type of L/C fraud is known as L/C Kiting. Some merchants may think of obtaining cash flow by using their existing credit facility at their bank, such as L/C, without there being a genuine underlying transaction. By honoring an L/C, the fraudster could improve cash flow of the company at a comparatively low interest rate. Because the underlying transaction is false, both the seller and the buyer will commit in offence, even though the loan is fully settled in the future. To prevent falling into the L/C fraud trap, it is always a good policy to be better acquainted with clients (Know Your Client Policy).2 Fraud in the Letter of Credit transactionIt has been commonly stated that the only recognized exception to the independence principle is in the case of fraud in the transaction. Though such a view fails to recognize that the fraud in the transaction scenario also constitutes an exception to the rule of strict compliance, it is true that, in the past, courts in Canada and the United States have been willing to disregard the independence principle in order to prevent honor under the credit because of abusive or fraudulent demands. It is the purpose of this section to reappraise the circumstances under which courts in Canada and the United States have been willing to grant this exception in the light of recent jurisprudence.In order to depict a fraud in the transaction situation, as well as to provide a brief historical review of the origin of the fraud exception, the landmark decision of Sztejn v. Henry Schroeder Banking Corp will be discussed. Next the statutory approach to the fraud exception will be outlined before the scope of the fraud exception and its locus will be described. Afterwards the legal remedies available to the parties in a fraud scenario will be examined. This section closes with an analysis of the standard that constitutes fraud and the duties of care that the issuer awes to both the applicant and the beneficiary.2.1 Sztejn v. Henry Schroeder Banking Corp.The exception concerning fraud in the transaction can be traced back to the American decision of Sztejn v. Henry Schroeder Banking Corp. In Sztejn, the plaintiff, an American buyer, contracted to purchase a number of bristles from Transea Traders, an Indian-based corporation. In order to pay for the bristles, Sztejn agreed with Henry Schroeder Banking Corp., the .American issuer, to open an irrevocable letter of credit, in which it was stipulated that payment will be made by shipment of the goods and upon presentation of a bill of lading and a commercial invoice.Instead of delivering bristles, Transea Traders shipped a number of crates filled with “cowhair, other worthless material and rubbish, in order to simulate genuine merchandise and to defraud the buyer. Nonetheless, Transea Trader managed to acquire documents that were consistent with the terms and conditions of the credit. Before the bank paid the draft, the plaintiff discovered the fraud and sought injunctive relief in order to declare the letter of credit to avoid it from being honored.In its analysis the court first revisited the well established independence principle. It stated that the application of the independence rule is limited to situations in which the accompanying documents are genuine and conform with the requirements of the letter of credit.” In so doing, the court was actually making two points. First it assumed that adherence to the rule of strict compliance is a prerequisite to upholding the independence principle. Second, it held that the independence principle is not intended to legitimize the tendering of falsified or fraudulent documents.The court then went on to say that where the sellers fraud has been called to the banks attention before the drafts and documents have been presented for payment. The principle of the independence of the banks obligation under the letter of credit should not be extended to protect the unscrupulous seller.”In so ruling, the court laid the foundations for what is today classified as the fraud exception in letter of credit transactions.The court remarked that the case before it was not a breach of warranty but rather one of active fraud. Therefore, no hardship is caused.where fraud is claimed, where the merchandise is not merely inferior in quality but consists of worthless rubbish, where the draft and the accompanying documents are in the hands of one who stands in the same position as the fraudulent seller, where the bank has been given notice of the fraud before being presented with the drafts and documents for payment.”Enjoining payment of the draft in such situations protects not only the interests of the applicant, but also those of the issuing bank, since a bank is vitally interested in assuring itself that there are some goods represented by the documents.”Since Sztejn courts around the world, including Canadian and American courts, have recognized and established the fraud exception in both documentary and standby credit transactions. In the United States, the Sztejn decision and others following it inspired the drafters of art. 5 U.C.C. to include a provision bringing fraudulent transactions within the scope of the U.C.C. which in amended form, was re-established in the revised 1995 version.3 Legal remedies available to the parties in a fraud scenarioIn order to assess the prospects of arbitration succeeding as an alternative to litigation in a fraudulent letter of credit dispute, it is first necessary to understand the legal remedies available to the parties in such a context.Misconduct by the beneficiary in a letter of credit transaction can give rise to many kinds of judicial proceedings. It follows from this that the range of possible legal action available to the parties in a fraudulent letter of credit transaction, as well as the procedural and tactical measures to be undertaken, will ultimately depend on the facts of each particular case and, therefore, cannot be covered comprehensively. There are, however, three typical judicial recourses to which the parties commonly resort in order to protect their rights in a fraudulent letter of credit transaction.3.1 Interlocutory injunction by the applicant3.1.1 GeneralThe first and most important proceeding available to the applicant is a motion for an interlocutory injunction seeking to prevent the issuer from honoring the beneficiarys demand for payment. This is what occurred in Sztejn, in which the applicant learnt prior to honor that the beneficiary had attempted to wrongfully draw under the credit. The court will only order an interlocutory or provisional injunction preventing the issuer from paying the beneficiary upon proof being made by the applicant that it would suffer irreparable prejudice even before the institution of an action as a result of the alleged fraud.In general, however, courts are reluctant to grant such injunctive relief and in only few cases will the injunction be maintained in subsequent judicial proceedings.3.1.2 CanadaIn Canada, there is no specific federal law governing the issuing of interlocutory injunctions in a fraud in the transaction scenario. Thus, in such cases provincial law applies.A distinction, however, must be made between the fraud test in an application for an interlocutory injunction and that in a non-provisional judicial proceeding. In contrast to a court action, in which fraud must be dearly and obviously established, a strong prima facie case of fraud suffices on a motion for an interlocutory injunction. It is acknowledged, however, that while the conclusions drawn in earlier cases offer valuable guidance, the circumstances of each case must be considered in their own unique light” in order to assess whether injunctive relief should be granted.3.2 Action by the beneficiary against the issuerThe second type of legal proceeding that commonly arises in a fraud context is an action taken by the beneficiary against the issuer when the latter has wrongfully dishonored the letter of credit. Here, the issuer has decided to refuse payment to the beneficiary, since it received notice by the applicant of an alleged fraud committed by the beneficiary. Consequently, the beneficiary seeks to prove that it committed no fraud, and that the issuer, therefore, breached its obligation under the credit to honor any documentary presentation in compliance with the terms of the credit. Therefore, the courts must first determine what generally constitutes fraud and whether the particular case before it meets the definition of fraud. The second, but interconnected, question then is whether the proof or demonstration of such fraud suffices in order to relieve the issuer of its obligation to pay under the letter of credit. In other words, the courts must determine the obligations of the issuer when confronted with proof or an allegation of fraud.3.3 Action by the Issuer against the applicantIn the third fraud scenario, the issuer institutes an action against the applicant in which it seeks reimbursement. Although the issuer has honored the letter of credit the applicant refuses to indemnify the issuer, since the latter paid the beneficiary notwithstanding the fact that it received prior notice by the applicant that the beneficiary was not entitled to payment because of an alleged fraud. In this action, the issuer seeks to establish that there was a sufficient and justified reason to effect payment under the credit and that it is, therefore, entitled to reimbursement. Again, the question arises whether the allegations made by the applicant actually establish fraud, and, whether the issuers decision to nonetheless honor the letter of credit was justified in the light of the evidence of fraud presented by the applicant.4 SummaryIt is an interesting fact that each of these typical judicial proceedings arising from allegations of fraud involves the issuer. This is surprising because the fraud originates in the underlying relationship to which the issuer is not privy. It is arguable, therefore, that the fraud question should be litigated between the parties to the underlying transaction rather than between the issuer and the applicant or between the issuer and the beneficiary. One must bear in mind that ultimately, the issuer serves only as a solvent intermediary processing documents and payment. Thus, from the issuers perspective, the fraud exception to the independence principle is very unfortunate since it is often dragged into judicial proceedings for reasons beyond its control and that have nothing to do with its role as intermediary in the transaction. The consequences of such judicial proceedings are all the more harsh when considering the fact an issuer may end up with bearing the loss as a result of these proceedings, i.e. the parties have successfully transferred their problem to the issuer. As it has been stated, there is - in brutal business terms - nothing in it for the issuer.交易中的信用证欺诈及其可能的仲裁比较法研究院 麦吉尔大学 Gernot Fohler摘 要 信用证在金融和国际商业交易的安全上继续发挥着不可或缺的作用。它的实用性和有效性主要源于它是独立于买方与卖方。但是，在国际贸易相当数量的案例中，信用证的独立性受到了挑战，主要因为在基础交易中的欺诈行为。通过分析监管治理框架中对于最近信用证的改革，说明信用证欺诈例外对于其独立性原则，就加拿大和美国得当期发展做出重新评估。最后，笔者认为，仲裁可以而且确实应该在国际贸易中信用证欺诈的解决争端里发挥越来越重要的作用。1 关于信用证欺诈信用证按照以下操作方式进行：在买方和卖方达成一个销售合同时，由买方向开证行申请开立信用证。在收到信用证时，卖方将与通知行核对其真实性。经确认信用证正确无误后，卖方发运货物，准备检验证书、提单等一系列单据文件并提交给议付行以证明其发运的货物买方的标准一致。议付行向卖方议付货款前，将按照买方的指示检查卖方所提交的文件表面上是否与信用证规定一致。此后，议付行将上述文件交给开证行并索偿。买方为了从开证行那获得这些文件，就须完成其付款或按照与开证行的共同商定在到期日付款。凭借这些代表物权凭证的文件，买方可以在卸货港的提取货物，至此，信用证的整个环节到此结束。整个信用证的环节按照由国际商会发行的，国际公认的监管规则信用证统一惯例（UCP600）进行的。信用证环节与信用卡交易相似，即银行以买方的名义承诺支付货款（即独立原则）。这种付款方式是独立于基本的业务交易。银行是履行遵守其信用证下的责任付款，只要所提交的文件在表面上看来是与信用证相符的（即符合原则）。 尽管有银行条例和审议的双重可用性，在信用证支付环节中也不可避免的存在漏洞。国际上欺诈者就利用信用证的独立原则和相符原则。毕竟，银行只检查相关的文件，而不是检查在港口的货物。卖方在信用证支付环节中进行欺诈是较普遍的。正如在一个典型的信用证欺诈情况里，卖方发运不合格的商品（如短装）。在其他情况下，其实装运可能都不存在（即假装运），即卖方将虚假的海运提单提交给银行，以证明其货物的装运。如果银行未能及时发现该骗局，它就会释放资金给卖方，然而，案件直到买方实际收到货物后后才会被发现。买家有时也会进行信用证欺诈，虽然这种情况并不普遍。这种情况典型的方式是，买方和卖主达成一笔交易，并且要求以信用证支付为结算方式。同时，买方还要求自行安排货物的运输。然后，买方指定第三方申请开立信用证，这样一个合法的信用证将被发送给卖方。卖方检查完信用证后，将货物交给由买方指派的运输公司。然而，运输公司与买方串通，在提单上提供不正确的信息。虽然货物最终运送到目的国，卖方由于提单的不正确而无法获得货款。另一种信用证欺诈的形式是空头信用证。有些商人可能想通过他们的银行在其现有的信贷里获得现金流，例如利用不真实交易开立信用证骗取银行资金。通过信用证的议付，欺诈者可以以一个相对较低的利率来改善公司的现金流。由于这个基础交易是虚假的，无论是卖方和买方都会构成犯罪，即使此项贷款在将来可以还上。为了防止掉进信用证欺诈的陷阱，一个好的建议就是与熟悉的客户交易。（即“了解你的客户的原则” ）。 2 信用证欺诈交易当今国际上普遍表示，只在交易的欺诈情况中承认对于独立性原则的信用证欺诈例外原则。而然这种观点没有认识到，交易情况中欺诈对于严格相符规则也构成了例外。过去，加拿大和美国的法院都愿意为了阻止信用证因伪造或欺诈的行为而获得支付，而不顾信用证的独立原则。本节的目的就是在重新评估在加拿大和美国的法院对于欺诈都愿意给予信用证欺诈例外的情况。首先，为了描绘交易中的欺情况，以及提供一个明确的信用证欺诈例外的历史起源，将讨论Sztejn起诉亨利施罗德银行这个具有里程碑意义的案例。其次，在信用证欺诈例外的范围以及其轨迹加以说明前，将概述法定信用证欺诈例外。再次，在符合法律规定的情况下，审查欺诈的当事双方的法律补救措施。最后，将分析构成信用证欺诈的标准和信用证申请人和受益人防止欺诈应有的义务和责任。 2.1 Sztejn起诉亨利施罗德银行关于信用证欺诈例外，可以追溯至美国的Sztejn决定诉亨利施罗德银行开始。作为原告的Sztejn是一个美国的进口商，同印度出口商Transea商贸公司签约合同，购买一定数量的刷毛。为了支付刷毛的货款，Sztejn向开证行，即意亨利施罗德银行申请开立不可撤消信用证。其中规定在货物装运后凭出具的海运提单和商业发票付款。 然而，Transea商贸公司并没有发运合同规定的刷毛，而是发运了相应数量装满“牛毛和其他不值钱的东西”的箱子，以“充当真正的商品来欺诈买方。”尽管如此，Transea商贸公司成功获得了与信用证条款相一致的单据文件。就在银行支付货款之前，该案原告发现了欺诈行为，并寻求法院的禁令救济，以宣布信用信无效来阻止银行的付款。在该案的分析中，法院第一次重新确立尚已成熟的信用证独立性原则。它申明信用证独立性原则的运用仅适用有限的情况，即交易中所附的文件是“真正的并且符合信用证的要求”。 法院这样做，实际上提出了两点。第一，它认定坚持独立自主原则的前提是坚持严格相符的原则。第二，它认为独立自主原则的目的并不是使伪造或欺诈性文件变得合法化。法院接着判定，如果在单据和文件已提交银行并要求付款前，银行就注意到卖方的欺诈行为。那么，对于信用证项下的独立自主原则