保函统一新规则URDG758讲解 pdf.doc

见索即付保函统一规则（URDG758）介绍Guarantee and RulesWhat is a guarantee?Why need for guarantee rules? How do the Rules apply?InternationalRules and StandardsUniformRules for Contract Guarantee - URCG325 - 1978UniformRules for DemandGuarantee- URDG 458 - 1992Uniform Rulesfor Contract Bonds- URCB524 - 1994International Standby Practice- ISP98-1998Uniform Customsand Practice forDocumentary Credits- UCP600 - 2007United Nations Convention on Independent Guaranteesand Stand-by Letter ofCredit-1995UniformRulesfor Demand Guarantee - URDG 758 - 2010Difference between Guarantee and Standby L/C?URCG 325UniformRules for Contract Guarantee-URCG325-1978（合约保函统一规则）Uniform Rules for Tender, Performance and Repayment GuaranteeThe guarantee is valid in respect of the obligations of the principal as expressed in the contract and amendment thereto. However, the guarantor is liable to the beneficiary up to the guarantee amount and the claim must have been received by the guarantee on or before the expiry date.The liability of the guarantor is up to the guarantee amount.No claim will be entertained after the expiry date of the guarantee. Apply to: Independent Guarantee or Accessory Guarantee?Claim under URCG325Claim shall be received by the guarantor on or before the expiry date, supporting documents should be presented within the period of time after the receipt of the claim as soon as practicable.Document to support claim: A court decision or an arbitral award justifying the claim.A claim shall only be made and honored if the beneficiary has a legal right to make the claim based on a failure of the principal to perform or correctly to perform the underling contract.Tender, Repayment Guarantee: make payment to the beneficiaryPerformance Guarantee: make payment or arrange for performance of the contractWhy not widely used?URCB 524Uniform Rulesfor ContractBonds- URCB524-1994Uniform Rules for Tender bond, Performance bond, Advance payment bond, Maintenance bond, Retention bond.Beneficiary is to obtain security for the obligations of Principal arising pursuant to the Contract but that the Guarantors liability shall only arise in case of established default under that Contract.The Beneficiary is protected by the assurance that any judgment or award will be discharged by the Guarantor if the Principal fails to do so.The Bond shall, subject to the Bond Amount and the Expiry Date, apply to the Contract as amended or varied by the Principal and the beneficiary from time to time.Bonds v. Guarantees?URCB 524Claim under URCB524A claim shall not be honored unless:1.a default has occurred, and2.the claim has been made and served in accordance with RulesA default shall be deemed to be established:1.upon issue of a certificate of Default by a third party if the Bond so provides, or2.upon the issue of a certificate of Default by the Guarantor, or3.by the final judgment, order or awardUpon certificate issued by Guarantor?URDG 458Uniform Rulesfor Demand Guarantee -URDG 458-1992Features:irrevocable undertakings;independent from underlying contracts;documentary conditions.Make payment upon a written demand and any other documents specified in the guarantee, not on actual default by the principal in the underlying transaction.Contents: (28 articles)A.Scope and Application of the RulesD.DemandB.Definitions and General ProvisionsE.Expiry ProvisionsC.Liabilities and ResponsibilitiesF.Governing Law and JurisdictionApply to all kinds of guarantees?Claim under URDG458Article 20 (a): any demand should state:1. the principal is in breach of his obligation(s) under the underlying contract and2. the respect in which the principal is in breach.The URDG apply to all guarantees from payable on simple written demand, to requiring the presentation of a judgment or arbitral award.Balance the conflicting interests of applicants, beneficiaries and guarantors, the URDG have gained increasing worldwide acceptance.URDG 458 were adopted by:The International Federation of Consulting Engineers (FIDIC)The World BankUnited Nations Commission on International Trade Law (UNCITRAL)URDG458 URDG758The rules were drafted two decades ago and need to keep up with current practice.-Georges Affaki,Chair of the ICC Task Force on GuaranteesThe lacks of URDG458?URDG Revision RoadmapProgress of the RevisionProgress of the RevisionApproved the Revision:070425 -Draft 1 of the Revision:080219- Draft 5 of the Revision:091009 - Vote for adoption : 20091123two and half years workreviewed around 600 pages of compiled national comments submitted by 52 different countries about 3000 comments35 Drafting Group meeting days8 dedicated meeting with the Task ForceThe new rules will be implemented on 1 July 2010.Structure of the RevisionDrafting GroupGuarantee Task ForceICC Banking CommissionNational CommitteesNew URDG 758Bring a new set of rules for demand guarantee into the 21st century: Clearer URDG More precise URDG More comprehensive URDG Balanced URDG Innovative URDGThe URDG not cover: Confirmation of guarantee Syndication or sub-participation of guarantee A new beneficiarys succession by operation of law to interests of the initial beneficiary in the guarantee The new URDG 758 package & the Guide (702)URDG758Majority of changes in the revisionInternational standard demand guarantee practiceDefinitionsApplicant / Instructing partyGuarantors own records, indexPresentationPartial demand & multiple demandAmendmentAdvice of guaranteeTime of examination, standards of examinationExtend or payExpiry of guaranteeTransferForce majeureNon-complying demand waiver and noticeURDG758Article 1Application of URDGApply to any demand guarantee or counter-guarantee that expressly indicates it is subject to them, except modifies or excludes them.Demand Guarantee is subject to the URDG,Counter Guarantee is also subject to the URDG.Counter Guarantee is also subject to the URDG,Demand Guarantee is subject to the URDG?Demand Guarantee is subject to the URDG excluded article X,Counter Guarantee is subject to the URDG excluded article X?modifies or excludes?URDG758Article 1Application of URDGWhere, at the request or with the agreement of the instructing party, a demand guarantee or counter-guarantee is issued subject to the URDG, the instructingparty is deemed to have accepted the rights and obligations expressly ascribed to it in these rules.URDG 1992 version or 2010 version?Can the URDG apply where not expressly incorporated in a guarantee?URDG758Article 2DefinitionsApplicant means the party indicated in the guarantee as having it obligation under the underlying relationship supported by the guarantee.The applicant may or may not be the instructing party.Instructing party means the party, other than the counter-guarantor, who gives instructions to issue a guarantee or counter-guarantee and is responsible for indemnifying the guarantor or, in the case of a counter-guarantee, the counter-guarantor.The instructing party may or may not be the applicant.Party v. BankURDG758Article 2DefinitionsDemand guarantee means any signed undertaking, however named or described, providing for payment on presentation of a complying demand. Structure of five-party guaranteePrincipalInstructing Party ApplicantBeneficiaryCounter Guarantor GuarantorCan guarantor issue a guarantee acting for its own account?URDG758Article 2DefinitionsPresentation means the delivery of a document under a guarantee to the guarantor or the document so delivered. It includes a presentation other than for a demand, for example, a presentation forthe purpose of triggering the expiry of the guarantee or a variation of its amount.Document means a signed or unsigned record of information, in paper or in electronic form, that is capable of being reproduced in tangible form by the person to whom it is presented. In these rules, a document includes a demand and a supporting statement.Document includes fax or e-mail?Article 2DefinitionsComplying presentation under a guarantee means a presentation that is in accordance with,first, the terms and conditions of that guarantee,second, these rules so far as consistent with those terms and conditions and,third, in the absence of a relevant provision in the guarantee or these rules, international standard demand guarantee practice.Complying demand means a demand that meets the requirements of a complying presentation.Complying presentation under UCP600? Presentation v. Demand?Article 2DefinitionsInternational standard demand guarantee practiceThis is meant as a first step to supplementing in the next few years the revised URDG with a body of codified standard practices similar to ISBP when ICC feel that Opinions, DOCDEX decisions and other position papers would allow to identify distinctively such a body of standards in the meantime, it is felt that the new concept of ISDGP so for as consistent with the URDG will allow parties judges and arbitrators more latitude in identifying solutions to disputes while remaining within the spirit and general principals of the URDG.ISDGP, a gap-filler to URDG.DOCDEX: ICC Rules for Documentary Instruments DisputeResolution Expertise. 19971001.Article 2DefinitionsUnderlying relationship means the contract, tender conditions or other relationship between the applicant and the beneficiary on which the guarantee is based.Guarantors own records means records of the guarantor showing amounts credited to or debited from accounts held with the guarantor, provided the record of those credits or debits enables the guarantor to identify the guarantee to which they relate;The case of“other relationship”?Article 2Definitionsexpiry means the expiry date or the expiry event or, if both are specified, the earlier of the two; expiry date means the date specified in the guarantee on or before which a presentation may be made; expiry event means an event which under the terms of the guarantee results in its expiry, whether immediately or within aspecified time after the event occurs, for which purpose the event is deemed to occur only:a. when a document specified in the guarantee as indicating the occurrence of the event is presented to the guarantor, orb. if no such document is specified in the guarantee, when the occurrence of the event becomes determinable from the guarantorsown records.Valid until 30 days after delivery evidenced by cargo receipt ?Article 3InterpretationBranches of a guarantor in different countries are considered to be separate entities. a guarantee includes a counter-guarantee and any amendmenta guarantor includes a counter-guarantora beneficiary includes the party in whose favour a counter- guarantee is issued.Any requirement for presentation of one or more originals or copies of an electronic document is satisfied by the presentation of one electronic document.Different Branches in one country are considered to be one?Article 3InterpretationWhen used with a date or dates or a periodi. Include: from , to , until , till and between ,ii. Exclude: before and after ,iii. Exclude+ Include: within .Terms such as first class, well-known, qualified, independent, official, competent or local when used to describe the issuer of a document allow any issuer except the beneficiary or the applicant to issue that document.Allow instructing party to issue that document?Article 4Issue and effectiveness A guarantee is issued when it leaves the control of the guarantor. A guarantee is irrevocable on issue even if it does not state this.The beneficiary may present a demand from the time of issue of the guarantee or such later time or even as the guarantee provided.What does “leaves the control of the guarantee” mean?Article 5Independence of guarantee and counter-guarantee A guarantee is independent ofunderlying relationship,the application. A counter guarantee is independent ofguarantee,underlying relationshipthe applicationany other counter-g uaranteeDirect guarantee and Indirect guaranteeArticle 6 Documents v. goods, services or performanceGuarantors deal with documents and not with goods, services or performance to which the documents may relate.Article 7Non-documentary conditions A guarantee should specify a document to indicate compliance with the condition contained in the guarantee.If the guarantee does notspecify any such document andthe fulfilment of the condition cannot be determined1.from the guarantors own records, or2.from an index specified in the guaranteethen the guarantor will deem such conditions as not stated and will disregard it, except for the purpose of determining date in a document presented do not conflict with data in guarantee.What is an index?Article8Content of instructions and guarantees All instructions should be clear and precise and should avoid excessive detail. It is recommended that all guarantees specify:a.the applicant b. the beneficiaryc. the guarantord. a reference number or other information identifying the underlying relationship;e. a reference number or other information identifying the issued guarantee or, inthe case of a counter-guarantee, the issued counter-guarantee;Should specify the instructing party?Article8Content of instructions and guaranteesIt is recommended that all guarantees specify:f. the amount or maximum amount payable and the currency in which it is payable;g. the expiry of the guarantee;h. any terms for demanding payment;i.whether a demand or other document shall be presented in paper and/or electronic form;j. the language of any document specified in the guarantee; andk. the party liable for the payment of any charges. The changes to URDG458?Article9Application not taken upWhere, at the time of receipt of the application,the guarantor is not prepared, orthe guarantor is unable to issue the guarantee,the guarantor should without delay so inform the party that gave the guarantor its instructions.The request to issue a domestic guarantee subject to URDG?Article10Advising of guarantee or Advice a guarantee:satisfy the apparent authenticity, and amendmentadvice accurately reflects the terms and conditions of guarantee An advising party or a second advising party advises a guarantee without any additional representation or any undertaking whatsoever to the beneficiary. If a party cannot satisfy the apparent authenticity and elects nonetheless to advise that guarantee, the party should state the same.Advising a guarantee should whenever possible use the same party to advise any amendment to that guarantee.a second advising party?Article11Amendment An amendment made without the beneficiarys agreement is not binding on the beneficiary. The beneficiary may reject an amendment of the guarantee at any time untilit notifies its acceptance of the amendment, ormake a presentation that complies only with the guarantee as amended. Partial acceptance of an amendment is not allowed and will be deemed to be notification of rejection of the amendment. A provision in an amendment to the effect that the amendment shall take effect unless rejected within a certain time shall be disregarded.What does “complies only” mean?Article12Extent of guarantors liability under the guarantee A guarantor is liable to the beneficiary only in accordance with,the terms and conditions of the guarantee and,these rules so far as consistent with those terms and conditions,Up to the guarantee amount. Beyond the expiry date?Article13Variation of amount of guarantee A guarantee may provide for the reduction or the increase of its amount on specified dates or on the occurrence of a specified event which under the terms of the guarantee results in variation of its amount, and for this purpose the event is deemed to have occurred only:a. when a document specified in the guarantee as indicating the occurrence of the event is presented to the guarantor, orb. if not such document is specified in the guarantee, when the occurrence of the event becomes determinable from the guarantors own records or from an index specified in the guarantee.Article14Presentation A presentation shall be made to the guarantor:at the place of issue, or such other place as is specified in the guarantee and,on or before expiry A presentation has to be complete unless it indicates that it is to be completed later. In that case, it shall be completed before expiry. Each presentation shall state the guarantors reference number of the guarantee. If it does not, the time for examination of a demand start on the date of identification. Documents issued by applicant or beneficiary shall be in the language of the guarantee. Any other person, any language. The function of the statement “presentation to be completed later”? A guarantee indicates presentation in electronic form,the guarantee should specify the format, the system for the data delivery and the electronic address for that presentation. If not specify, presented in any electronic format authenticated or in paper form are acceptable. A guarantee indicates presentation in paper form, may use any mode of delivery unless excluded by the guarantee. A guarantee does not indi