18 April 2023 the ICC held their Global Banking Commission meeting. The main content of the meeting was the second Opinion session of the year. Prior to the meeting the slides with the suggested changes for the two Draft Opinions to be revised and finalized were circulated to the National Committees.
Also discussed at the meeting was a discussion on technical issue briefsand rules updates. This both in respect of the updated ISBP but also theupdates made to eUCP and eURC.
At the meeting, there was a long discussion about Draft ICC Opinion TA927rev (regarding free ofcharge goods). It was not possible to reach a unanimous conclusion.
For that reason, an updated version has been circulated to the ICC National Committees who have beengiven the three following choices:
The ICC National Committees will have until 27 June 2023 to express their preference. Decision willbe final by 11 July 2023 during the next official opinion session.
ICC Opinion TA930rev (No payment due to sanctions clause) was approved with changes to theAnalysis and conclusion. The underlying issue in the Opinion is that prior to maturity, the issuing bankadvised that they could not pay due to trade sanctions.
A number of questions were raised in the query including:
For most of the questions the answer is that the issue is a matter outside the scope of the UCP 600.
However, for the issue of non-documentary conditions, reference is made to the Addendum to theSanctions Guidance Paper, which states that sanctions clauses are non-documentary conditions for thepurposes of the UCP (and the URDG) and recommends that banks should refrain from includingsanctions clauses that impose restrictions beyond, or conflict with applicable regulatory requirements.It is added that non-documentary conditions are addressed in UCP 600 article 14 (h) wherein it is statedthat if an L/C contains a condition without stipulating the document to indicate compliance with thecondition, banks will deem such condition as not stated and will disregard it. The scope of UCP 600article 14(h) is in respect of determining if the presented documents constitute a complyingpresentation. The legality or enforceability of sanctions clauses may also involve considerations ofmandatory law/regulations which may override the credit and the UCP.
On whether evidence is required to prove that there are economic sanctions, the answer is that it isexpected that a bank should provide a reference to the applicable law or sanction regulation, and thedocument(s) and /or data in the presentation to which it relates.
A review of TA930rev has been added to lcviews premium duly linked to relevant rules and practice.
At the meeting there was also an overview of the Technical Advisory Briefings. It was mentioned thatthere is still room for new members to the TA Briefings Team. There can be one from each ICCNational Committee – and they need to be appointed by their ICC National Committee.
So far, the team have issued 6 Technical Advisory Briefings. The Technical Advisory Briefings can befound here https://library.iccwbo.org/tfb/tfb-briefings.htm
The 7th is at the draft stage and concerns “Title of Invoice”.
Ideas for new briefings are:
It was mentioned at the meeting that it is possible to send requests for future Briefings.
At the end of the meeting the updates to eUCP, eURC was addressed.
For eUCP and eURC the purpose of the updates is to alignment with MLETR with respect to electronictransferable records. The ICC is currently in the process of updating those two sets of rules.
For ISBP 745 a working group have evaluated all ICC Opinions approved since the release of ISBP745 and ensured full alignment between both sets of approved texts. In total 144 Opinions werereviewed, 13 of which had been withdrawn by the initiator. 9 Opinions were recognized as containingcontent that would be meaningful for addition within ISBP 745. More information about date ofpublishing and number to follow.
Following the updates to ISBP, the ICC are asking the National Committees on their view in respect ofthe future of ISBP. I.e., they are asked to answer the following questions:
The ICC National Committees will have until 30 June 2023 to express their preference.
The next meeting to cover Opinions will be held virtually 11 July 2023.
