【導(dǎo)讀】Overview-Trade!1. d.ExportSales-SpecificConcerns3-4. f.ExcusesforNon-Performance:. a.ConcernsAbout33. b.TheAgreement33-37. e..AntitrustPolicy-Generally41. a.Overview45. b.BasicConcerns46. c.Exon-Florio52-53. d.TheAgreement-Generally53-54. g.FDI-Germany(56-64). Overview-Trade!2. h.FDI-Non-MarketEconomies(64-68). V.Misc-ExamTips64. DanielW.Levy. December9,1994. I.Overview. 1.newplexity. fortheirmkt. acertaingoodshould. non-convertible,non-valuablecurrencies). 3.socio-politicalissues. b.ideological. a.economicreasons

　　

【正文】 t of any negotiated deal) 2. fees represent relationship between bank and its customer (not between buyer and seller) L/C/ Independence Principle 14 5. The Independence Principle a. the contracts between banks and their customers are independent k that have nothing to do with underlying k’s b. BANKS CANNOT REFUSE TO PAY B/C OF BREACH OF UNDERLYING K 1. Urquhart Lindsay v. Eastern Bank (1922 UK): l/c incorporates the underlying k。 letter of credit breached when bank refused to pay invoices that conformed to l/c, even tho’ k said that invoices should not include cost increases 2. bank involved only minimally in interpretation of k 3. protections a. buyer can always make letter permitting price increase among those docs req’d to be handed over for payment b. there is always underlying suit c. EXCEPT WHEN THERE HAS BEEN FRAUD IN TRANSACTION AND BANK HAS BEEN MADE AWARE OF THE FRAUD, COURT MAY ENJOIN PAYMENT BY BANK (UCC 2514(2)(b)) 1. Maurice O’Meara v. National Park Bank (1925 NY) (Cardozo, dissenting): bank can dishonor draft if it investigates and discovers fraud a. why should it have to make payment if it can sue to recover payment immediately? b. the documents are false (a misrepresentation of goods) c. distinguish seller know knew of fraudulent docs and a holding in due course who takes for value 2. Dominant approach: Sztejn v. J. Henry Schroder (1941 NY): seller has intentionally failed to honor obligation (more than a breach of warranty)=bank can be enjoined from paying or from presenting docs to confirming bank d. UNLESS (exception to the fraud exception) L/C IS PRESENTED BY A HOLDER IN DUE COURSE, IN WHICH CASE BANK MAY NOT DISHONOR DRAFT (EVEN IF IT KNOWS OF FRAUD) 1. Holder in due course (took w/out knowledge, in good faith, and for value) must prove status (3302, 3307) 2. United Bank v. Cambridge Sporting Goods (1976 NY): bank (buyer’s assignees) cannot prove status as holder in good course。 thus, cannot recover payment from issuing bank) 3. policy why damage 2 parties? e. PLUS (a second exception to the fraud exception) ISSUING BANK MAY HONOR A DRAFT IN GOOD FAITH DESPITE INFORMATION FROM BUYER OF FRAUD OR OTHER NONAPPARENT DEFECT IN L/C 1. but a court may enjoin the payment 2. as a practical matter, injunction is difficult to get (and bank will require customer to get one depending on the relationship) a. strong likelihood of success on merits b. irreparable injury c. balance of harms weighs in favor of injunx d. injnx must not disserve public interest e. must be no other remedy at law 1. often where buyers fail (T121) f. policy 1. damage as few parties as possible 2. balance: integrity of independence principle and worries about use of l/c as tool for fraudulent g. What is enough fraud for exception to be invoked? L/C/ Independence Principle 15 1. must be egregious (obvious) 2. must be in the transaction (less clear) a. broad version 1. either in the l/c or in the underlying k 2. by submitting docs that indicate performance, seller perpetrates fraud on bank b. narrow version 1. preserve utility of l/c only where fraud provable in a summarial fashion。 else bank bees involved in k interpretation and enforcement c. reconciled broad and narrow views 1. require specificity in documents presented for payment 2. make fraud in contract inevitably incident to fraud on bank h. Buyer’s self protection 1. require inspection certificate to be among docs presented for payment 2. injunction 3. sue seller on underlying k to recover the money buyer paid to bank (and was paid to seller by bank, b/c it couldn’t refuse draft) L/C Doctrine of Facial Conformity 16 6. Doctrine of Facial Conformity a. Documents must strictly conform to requirements。 any nonconformity excuses issuing bank from paying b. Rayner v. Hambro’s Bank (1943 UK): the bills of lading read ‘‘machine shelled groundnut kernels’’ whereas l/c required documents describing ‘‘Coromandel groundnuts’’ 1. bank cannot be expected to know trade parlance of parties to k 2. it can refuse to honor any draft its job is documents not performance (unless fraud exception) 3. bank can err on side of safety (avoid risk of not being able to require buyer to pay, for incorrect honor of draft)。 no bank should second guess customer c. Custom of banking industry, however, is province where bank’s discretion is allowable 1. Dixon, Irmaos v. Chase National Bank (1945 NY): custom among NY banks was that missing documents from bill of lading would be acceptable to honor draft。 UCC 5109 on general banking usage。 thus refusal was unjustified 2. cif is a banking term。 crs is not d. In practice, banks will: 1. call customers and ask for written waiver 2. 50+% of transactions have some nonconforming document involved 3. it’s difficult to have a b/l resubmitted e. protections 1. consistent terminology 2. spell out acceptable equivalents 3. use one language 4. munication between banks and parties in the beginning 5. think about timing issues: 90 days in some countries f. Developing markets: China and CIS 1. requiring a confirming bank may insult a Chinese issuing bank’s creditworthiness (cultural) 2. it may be very expensive to get a confirmed l/c in the CIS (know your partner!) 3. perhaps you can get insurance from OPIC 4. perhaps you can barter, instead of dealing in cash g. Standby L/C’s (as distinguished from mercial l/c’s) 1. issued by seller。 listing buyer as beneficiary 2. to guarantee performance (a lot like a performance bond) 3. often used in service contracts (eg. construction) 4. documents have no independent probative value (unlike mercial l/c) 5. Potential for abuse: one