"ПРАВИЛА МЕЖДУНАРОДНОЙ ПРАКТИКИ РЕЗЕРВНЫХ АККРЕДИТИВОВ (isp98)" [англ.](Публикация Международной торговой палаты n 590)


INTERNATIONAL CHAMBER OF COMMERCE
INTERNATIONAL STANDBY PRACTICES (ISP98)
(ICC publication No. 590)
Rule 1
GENERAL PROVISIONS
Scope, application, definitions, and
interpretation of these Rules
1.01 Scope and Application
a. These Rules are intended to be applied to standby letters of credit (including performance, financial, and direct pay standby letters of credit).
b. A standby letter of credit or other similar undertaking, however named or described, whether for domestic or international use, may be made subject to these Rules by express reference to them.
c. An undertaking subject to these Rules may expressly modify or exclude their application.
d. An undertaking subject to these Rules is hereinafter referred to as a "standby".
1.02 Relationship to Law and Other Rules
a. These Rules supplement the applicable law to the extent not prohibited by that law.
b. These Rules supersede conflicting provisions in any other rules of practice to which a standby letter of credit is also made subject.
1.03 Interpretative Principles
These Rules shall be interpreted as mercantile usage with regard for:
a. integrity of standbys as reliable and efficient undertakings to pay;
b. practice and terminology of banks and businesses in day-to-day transactions;
c. consistency within the worldwide system of banking operations and commerce; and
d. worldwide uniformity in their interpretation and application.
1.04 Effect of the Rules
Unless the context otherwise requires, or unless expressly modified or excluded, these Rules apply as terms and conditions incorporated into a standby, confirmation, advice, nomination, amendment, transfer, request for issuance, or other agreement of:
i. the issuer;
ii. the beneficiary to the extent it uses the standby;
iii. any advisor;
iv. any confirmer;
v. any person nominated in the standby who acts or agrees to act; and
vi. the applicant who authorises issuance of the standby or otherwise agrees to the application of these Rules.
1.05 Exclusion of Matters Related to Due Issuance and Fraudulent or Abusive Drawing
These Rules do not define or otherwise provide for:
a. power or authority to issue a standby;
b. formal requirements for execution of a standby (e.g. a signed writing); or
c. defenses to honour based on fraud, abuse, or similar matters.
These matters are left to applicable law.
General principles
1.06 Nature of Standbys
a. A standby is an irrevocable, independent, documentary, and binding undertaking when issued and need not so state.
b. Because a standby is irrevocable, an issuer"s obligations under a standby cannot be amended or cancelled by the issuer except as provided in the standby or as consented to by the person against whom the amendment or cancellation is asserted.
c. Because a standby is independent, the enforceability of an issuer"s obligations under a standby does not depend on:
i. the issuer"s right or ability to obtain reimbursement from the applicant;
ii. the beneficiary"s right to obtain payment from the applicant;
iii. a reference in the standby to any reimbursement agreement or underlying transaction; or
iv. the issuer"s knowledge of performance or breach of any reimbursement agreement or underlying transaction.
d. Because a standby is documentary, an issuer"s obligations depend on the presentation of documents and an examination of required documents on their face.
e. Because a standby or amendment is binding when issued, it is enforceable against an issuer whether or not the applicant authorised its issuance, the issuer received a fee, or the beneficiary received or relied on the standby or the amendment.
1.07 Independence of the Issuer-Beneficiary Relationship
An issuer"s obligations toward the beneficiary are not affected by the issuer"s rights and obligations toward the applicant under any applicable agreement, practice, or law.
1.08 Limits to Responsibilities
An issuer is not responsible for:
a. performance or breach of any underlying transaction;
b. accuracy, genuineness, or effect of any document presented under the standby;
c. action or omission of others even if the other person is chosen by the issuer or nominated person; or
d. observance of law or practice other than that chosen in the standby or applicable at the place of issuance.
Terminology
1.09 Defined Terms
In addition to the meanings given in standard banking practice and applicable law, the following terms have or include the meanings indicated below:
a. Definitions
"Applicant" is a person who applies for issuance of a standby or for whose account it is issued, and includes
(i) a person applying in its own name but for the account of another person or
(ii) an issuer acting for its own account.
"Beneficiary" is a named person who is entitled to draw under a standby. See Rule 1.11(c)(ii).
"Business Day" means a day on which the place of business at which the relevant act is to be performed is regularly open; and "Banking Day" means a day on which the relevant bank is regularly open at the place at which the relevant act is to be performed.
"Confirmer" is a person who, upon an issuer"s nomination to do so, adds to the issuer"s undertaking its own undertaking to honour a standby. See Rule 1.11(c)(i).
"Demand" means, depending on the context, either a request to honour a standby or a document that makes such request.
"Document" means a draft, demand, document of title, investment security, invoice, certificate of default, or any other representation of fact, law, right, or opinion, that upon presentation (whether in a paper or electronic medium), is capable of being examined for compliance with the terms and conditions of a standby.
"Drawing" means, depending on the context, either a demand presented or a demand honoured.
"Expiration Date" means the latest day for a complying presentation provided in a standby.
"Person" includes a natural person, partnership, corporation, limited liability company, government agency, bank, trustee, and any other legal or commercial association or entity.
"Presentation" means, depending on the context, either the act of delivering documents for examination under a standby or the documents so delivered.
"Presenter" is a person who makes a presentation as or on behalf of a beneficiary or nominated person.
"Signature" includes any symbol executed or adopted by a person with a present intent to authenticate a document.
b. Cross References
"Amendment" - Rule 2.06
"Advice" - Rule 2.05
"Approximately" ("About" or "Circa") - Rule 3.08(f)
"Assignment of Proceeds" - Rule 6.06
"Automatic Amendment" - Rule 2.06(a)
"Copy"-Rule 4.15(d)
"Cover Instructions" - Rule 5.08
"Honour" - Rule 2.01
"Issuer" - Rule 2.01
"Multiple Presentations" - Rule 3.08(b)
"Nominated Person" - Rule 2.04
"Non-documentary Conditions" - Rule 4.11
"Original" - Rule 4.15(b) & (c)
"Partial Drawing" - Rule 3.08(a)
"Standby" - Rule 1.01(d)
"Transfer" - Rule 6.01
"Transferee Beneficiary" - Rule 1.11(c)(ii)
"Transfer by Operation of Law" - Rule 6.11
c. Electronic Presentations
The following terms in a standby providing for or permitting electronic presentation shall have the following meanings unless the context otherwise requires:
"Electronic Record" means:
i. a record (information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form);
ii. communicated by electronic means to a system for receiving, storing, re-transmitting, or otherwise processing information (data, text, images, sounds, codes, computer programs, software, databases, and the like); and
iii. capable of being authenticated and then examined for compliance with the terms and conditions of the standby.
"Authenticate" means to verify an electronic record by generally accepted procedure or methodology in commercial practice:
i. the identity of a sender or source, and
ii. the integrity of or errors in the transmission of information content.
The criteria for assessing the integrity of information in an electronic record is whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage, and display.
"Electronic signature" means letters, characters, numbers, or other symbols in electronic form, attached to or logically associated with an electronic record that are executed or adopted by a party with present intent to authenticate an electronic record.
"Receipt" occurs when:
i. an electronic record enters in a form capable of being processed by the information system designated in the standby, or
ii. an issuer retrieves an electronic record sent to an information system other than that designated by the issuer.
1.10 Redundant or Otherwise Undesirable Terms
a. A standby should not or need not state that it is:
i. unconditional or abstract (if it does, it signifies merely that payment under it is conditioned solely on presentation of specified documents);
ii. absolute (if it does, it signifies merely that it is irrevocable);
iii. primary (if it does, it signifies merely that it is the independent obligation of the issuer);
iv. payable from the issuer"s own funds (if it does, it signifies merely that payment under it does not depend on the availability of applicant funds and is made to satisfy the issuer"s own independent obligation);
v. clean or payable on demand (if it does, it signifies merely that it is payable upon presentation of a written demand or other documents specified in the standby).
b. A standby should not use the term "and / or" (if it does it means either or both).
c. The following terms have no single accepted meaning:
i. and shall be disregarded:
"callable",
"divisible",
"fractionable",
"indivisible", and
"transmissible".
ii. and shall be disregarded unless their context gives them meaning:
"assignable",
"evergreen",
"reinstate", and
"revolving".
1.11 Interpretation of these Rules
a. These Rules are to be interpreted in the context of applicable standard practice.
b. In these Rules, "standby letter of credit" refers to the type of independent undertaking for which these Rules were intended, whereas "standby" refers to an undertaking subjected to these Rules.
c. Unless the context otherwise requires:
i. "Issuer" includes a "confirmer" as if the confirmer were a separate issuer and its confirmation were a separate standby issued for the account of the issuer;
ii. "Beneficiary" includes a person to whom the named beneficiary has effectively transferred drawing rights ("transferee beneficiary");
iii. "Including" means "including but not limited to";
iv. "A or B" means "A or B or both"; "either A or B" means "A or B, but not both"; and "A and B" means "both A and B";
v. Words in the singular number include the plural, and in the plural include the singular; and
vi. Words of the neuter gender include any gender.
d. i. Use of the phrase "unless a standby otherwise states" or the like in a rule emphasizes that the text of the standby controls over the rule;
ii. Absence of such a phrase in other rules does not imply that other rules have priority over the text of the standby;
iii. Addition of the term "expressly" or "clearly" to the phrase "unless a standby otherwise states" or the like emphasizes that the rule should be excluded or modified only by wording in the standby that is specific and unambiguous; and
iv. While the effect of all of these Rules may be varied by the text of the standby, variations of the effect of some of these Rules may disqualify the standby as an independent undertaking under applicable law.
e. The phrase "stated in the standby" or the like refers to the actual text of a standby (whether as issued or effectively amended) whereas the phrase "provided in the standby" or the like refers to both the text of the standby and these Rules as incorporated.
Rule 2
OBLIGATIONS
2.01 Undertaking to Honour by Issuer and Any Confirmer to Beneficiary
a. An issuer undertakes to the beneficiary to honour a presentation that appears on its face to comply with the terms and conditions of the standby in accordance with these Rules supplemented by standard standby practice.
b. An issuer honours a complying presentation made to it by paying the amount demanded of it at sight, unless the standby provides for honour:
i. by acceptance of a draft drawn by the beneficiary on the issuer, in which case the issuer honours by:
(a) timely accepting the draft; and
(b) thereafter paying the holder of the draft on presentation of the accepted draft on or after its maturity.
ii. by deferred payment of a demand made by the beneficiary on the issuer, in which case the issuer honours by:
(a) timely incurring a deferred payment obligation; and
(b) thereafter paying at maturity.
iii. by negotiation, in which case the issuer honours by paying the amount demanded at sight without recourse.
c. An issuer acts in a timely manner if it pays at sight, accepts a draft, or undertakes a deferred payment obligation (or if it gives notice of dishonour) within the time permitted for examining the presentation and giving notice of dishonour.
d. i. A confirmer undertakes to honour a complying presentation made to it by paying the amount demanded of it at sight or, if the standby so states, by another method of honour consistent with the issuer"s undertaking.
ii. If the confirmation permits presentation to the issuer, then the confirmer undertakes also to honour upon the issuer"s wrongful dishonour by performing as if the presentation had been made to the confirmer.
iii. If the standby permits presentation to the confirmer, then the issuer undertakes also to honour upon the confirmer"s wrongful dishonour by performing as if the presentation had been made to the issuer.
e. An issuer honours by paying in immediately available funds in the

<АДМИНИСТРАТИВНЫЕ ИНСТРУКЦИИ К ГААГСКОМУ СОГЛАШЕНИЮ О МЕЖДУНАРОДНОМ ДЕПОНИРОВАНИИ ПРОМЫШЛЕННЫХ ОБРАЗЦОВ> [англ.](Вместе с <ГОСУДАРСТВАМИ-УЧАСТНИКАМИ СОГЛАШЕНИЯ НА 1 ЯНВАРЯ 1998>)  »
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