"УНИФИЦИРОВАННЫЕ ПРАВИЛА МТП ДЛЯ ДОГОВОРНЫХ ГАРАНТИЙ" (urcb) [англ.](Публикация Международной торговой палаты n 524)
INTERNATIONAL CHAMBER OF COMMERCE
ICC UNIFORM RULES FOR CONTRACT
BONDS
(ICC publication No. 524)
Introduction
These Uniform Rules
have been drawn up by an ICC Working Party of members representing the
Commission on Insurance and the building and engineering industry for worldwide
application in relation to Contract Bonds, being those bonds creating
obligations of an accessory nature, where the liability of the Surety or
Guarantor arises and is conditional upon an established default on the part of a
Contractor (defined in these Rules as the Principal) under the Contract which is
the subject matter of the relevant Bond. The Rules set out below will therefore
apply where the intention of the parties is that the obligations of the
Guarantor will depend upon the duties or liabilities of the Principal under the
relevant Contract.
Bonds governed by the ICC Rules set out below are
intended to operate so as to confer upon the Beneficiary in each instance
security for the performance or execution of contract obligations or payment of
any sums which may fall due to the Beneficiary as a result of any breach of
obligation or default by the Principal under the Contract. The Bond is intended
to ensure that, subject to its financial limits, either the obligations set out
in the Contract will be performed or executed, or that upon default, the
Beneficiary will recover any sum properly due notwithstanding the insolvency of
the Principal or the Principal"s failure for any other reason to satisfy or
discharge its liability. Accordingly, where a Bond governed by these Rules is in
force, the Beneficiary will have the additional assurance of the Guarantor"s
accessory obligations to ensure that the judgment or award of any competent
court or arbitral tribunal is satisfied.
The relationship of the parties
under a Bond governed by these Rules number 524 differs from that arising under
the ICC Uniform Rules for Demand Guarantees number 458 (the Demand Rules). Where
the intention is that the Beneficiary is to obtain security for the obligations
of the Principal arising pursuant to the Contract but that the Guarantor"s
liability shall only arise in case of an established default under that
Contract, these Rules should be selected.
General
These Rules are
intended to provide a clear and concise scheme to regulate the nature of
obligations arising under Bonds and claims procedure. Because the nature of a
Bond regulated by these Rules is that the obligations of the parties are related
directly to and depend upon the obligations of the parties arising under the
Contract, the Rules do not contain detailed provisions dealing with documentary
requirements or the problem of unfair calling. In the event of a dispute arising
as to the liability of a Guarantor, the Rules contemplate that such dispute will
be determined by reference to the Contract. The Guarantor and the Principal are
protected in that liability will arise only where default is established. 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 Uniform
Rules for Contract Bonds number 524 set out below shall apply where expressly
incorporated by the parties in accordance with their detailed provisions. These
new Rules depend for their success upon their use by the international business
community. The ICC recommends the use of these new Rules which will help to
secure uniformity of practice in the operation and enforcement of
Bonds.
Article 1
Scope and application
a) These Rules shall be known
as the "Uniform Rules for Contract Bonds" and shall apply to any Bond which
states that these Rules shall apply, or otherwise incorporates these Rules by
reference and, for such purposes, it shall suffice that the Bond incorporates a
reference to these Rules and the publication number.
b) If there shall be
any conflict in the construction or operation of the obligations of any parties
under a Bond between the provisions of these Rules and such Bond, or mandatory
provisions of the Applicable Law regulating the same, the provisions of the Bond
or, as the case may be, the mandatory provisions of the Applicable Law shall
prevail.
Article 2
Definitions
In these Rules, words or expressions
shall bear the meanings set out below and be construed accordingly
Advance
Payment Bond
A Bond given by the Guarantor in favour of the Beneficiary to
secure the repayment of any sum or sums advanced by the Beneficiary to the
Principal under or for the purposes of the Contract, where such sum or sums is
or are advanced before the carrying out of works, the performance of services or
the supply or provision of any goods pursuant to such
Contract.
Beneficiary
The party in whose favour a Bond is issued or
provided.
Bond
Any bond, guarantee or other instrument in writing issued
or executed by the Guarantor in favour of the Beneficiary pursuant to which the
Guarantor undertakes on Default, either:
i) to pay or satisfy any claim
or entitlement to payment of damages, compensation or other financial relief up
to the Bond Amount; or
ii) to pay or satisfy such claim or entitlement up
to the Bond Amount or at the Guarantor"s option to perform or execute the
Contract or any Contractual Obligation.
In either case where the
liability of the Guarantor shall be accessory to the liability of the Principal
under the Contract or such Contractual Obligation and such expression shall
without limitation include Advance Payment Bonds, Maintenance Bonds, Performance
Bonds, Retention Bonds and Tender Bonds.
Bond Amount
The sum inserted in
the Bond as the maximum aggregate liability of the Guarantor as amended, varied
or reduced from time to time or, following the payment of any amount in
satisfaction or partial satisfaction of a claim under any Bond, such lesser sum
as shall be calculated by deducting from the sum inserted in the Bond the amount
of any such payment.
Contract
Any written agreement between the
Principal and the Beneficiary for the carrying out of works, the performance of
services or the supply or provision of any goods.
Contractual
Obligation
Any duty, obligation or requirement imposed by a clause,
paragraph, section, term, condition, provision or stipulation contained in or
forming part of a Contract or tender.
Default
Any breach, default or
failure to perform any Contractual Obligation which shall give rise to a claim
for performance, damages, compensation or other financial remedy by the
Beneficiary and which is established pursuant to paragraph j of Article
7.
Expiry Date
Either (a) the date fixed or the date of the event on
which the obligations of the Guarantor under the Bond are expressed to expire or
(b) if no such date is stipulated, the date determined in accordance with
Article 4.
Guarantor
Any Person who shall issue or execute a Bond on
behalf of a Principal.
Maintenance Bond
A Bond to secure Contractual
Obligations relating to the maintenance of works or goods following the physical
completion or the provision thereof, pursuant to a Contract.
Performance
Bond
A Bond to secure the performance of any Contract or Contractual
Obligation.
Person
Any company, corporation, firm, association, body,
individual or any legal entity whatsoever.
Principal
Any Person who (i)
either (a) submits a tender for the purpose of entering into a Contract with the
Beneficiary or (b) enters into a Contract with the Beneficiary and (ii) assumes
primary liability for all Contractual Obligations thereunder.
Retention
Bond
A Bond to secure the payment of any sum or sums paid or released to the
Principal by the Beneficiary before the date for payment or release thereof
contained in the Contract.
Tender Bond
A Bond in respect of a tender to
secure the payment of any loss or damage suffered or incurred by the Beneficiary
arising out of the failure by the Principal to enter into a Contract or provide
a Performance Bond or other Bond pursuant to such tender.
Writing and
Written
Shall include any authenticated tele-transmissions or tested
electronic data interchange ("EDI") message equivalent thereto.
Article
3
Form of bond and liability of the guarantor
to the
beneficiary
a) The Bond should stipulate:
i) The Principal.
ii) The Beneficiary.
iii) The Guarantor.
iv) The Contract.
v) Where the Bond does not extend to the whole of the Contract, the precise
Contractual Obligation or Obligations to which the Bond relates.
vi) The
Bond Amount.
vii) Any provisions for the reduction of the Bond
Amount.
viii) The date when the Bond becomes effective (defined in these
rules as the "Effective Date").
ix) Whether the Guarantor shall be
entitled at its option to perform or execute the Contract or any Contractual
Obligation.
x) The Expiry Date.
xi) The names, addresses, telex
and/or telefax numbers and contact references of the Beneficiary, the Guarantor
and the Principal.
xii) Whether sub-paragraph i of Article 7j is to apply
and the name of the third party to be nominated thereunder for the purpose of
Article 7 below (claims procedure).
xiii) How disputes or differences
between the Beneficiary, the Principal and the Guarantor in relation to the Bond
are to be settled.
b) The liability of the Guarantor to the Beneficiary
under the Bond is accessory to the liability of the Principal to the Beneficiary
under the Contract and shall arise upon Default. The Contract is deemed to be
incorporated into and form part of the Bond. The liability of the Guarantor
shall not exceed the Bond Amount.
c) Save for any reduction of the Bond
Amount under the terms of the Bond or the Contract and subject to Article 4, the
liability of the Guarantor shall not be reduced or discharged by reason of any
partial performance of the Contract or any Contractual Obligation.
d) All
defences, remedies, cross claims, counter-claims and other rights or
entitlements to relief which the Principal may have against the Beneficiary
under the Contract, or which may otherwise be available to the Principal in
respect of the subject matter thereof, shall be available to the Guarantor in
respect of any Default in addition to and without limiting any defence under or
arising out of the Bond.
Article 4
Release and discharge of
guarantor
a) Subject to any contrary provision in the Bond and the
provisions of paragraph b of this Article 4, the Expiry Date shall be six months
from the latest date for the performance of the Contract or the relevant
Contractual Obligations thereunder, as the case may be.
b) Subject to any
contrary provision of the Bond, the Expiry Date for the purposes of an Advance
Payment Bond, a Maintenance Bond, a Retention Bond and a Tender Bond shall be as
follows:
i) In the case of an Advance Payment Bond, the date on which the
Principal shall have carried out works, supplied goods or services or otherwise
performed Contractual Obligations having a value as certified or otherwise
determined pursuant to the Contract equal to or exceeding the Bond Amount.
ii) In the case of a Maintenance Bond, six months after either the date
stipulated by the Contract or, if no date has been specified for the termination
of the Principal"s maintenance obligations, the last day of the applicable
warranty period or defects liability period under the Contract.
iii) In
the case of a Retention Bond, six months after the date stipulated by the
Contract for the payment, repayment or release of any retention monies.
iv) In the case of a Tender Bond, six months after the latest date set out in
the tender documents or conditions for the submission of tenders.
c)
Where the Expiry Date falls on a day which is not a Business Day, the Expiry
Date shall be the first following Business Day. For the purpose of these Rules
"Business Day" shall mean any day on which the offices of the Guarantor shall
ordinarily be open for business.
d) A Bond shall terminate and, without
prejudice to any term, provision, agreement or stipulation of the Bond, any
other agreement or the Applicable Law providing for earlier release or
discharge, the liability of the Guarantor shall be discharged absolutely and the
Guarantor shall be released upon the Expiry Date whether or not the Bond shall
be returned to the Guarantor, save in respect of any claim served in accordance
with Article 7.
e) Notwithstanding the provisions of paragraph d of this
Article 4, the Bond may be cancelled at any time by the return of the Bond
itself to the Guarantor or by the service upon and delivery or transmission to
the Guarantor of a release in writing duly signed by an authorised
representative of the Beneficiary, whether or not accompanied by the Bond and/or
any amendment or amendments thereto.
f) The Guarantor shall promptly
inform the Principal of any payment made under or pursuant to the Bond and of
the cancellation, release or discharge thereof or any reduction in the Bond
Amount where the same shall not already have been communicated.
Article
5
Return of the Bond
The Bond shall immediately after release or
discharge under these Rules be returned to the Guarantor, and the retention or
possession of the Bond following such release or discharge shall not of itself
operate to confer any right or entitlement thereunder upon the
Beneficiary.
Article 6
Amendments and variations to and of the
contract
and the bond and extensions of time
a) 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.
b) A
Tender Bond shall be valid only in respect of the works and contract particulars
set out or described in the tender documents at the Effective Date, and shall
not apply beyond the Expiry Date or in any case where there shall be any
substantial or material variation of or amendment to the original tender after
the Effective Date, unless the Guarantor shall confirm, in the same manner as
set out in paragraph c of this Article 6, that the Tender Bond so applies or the
Expiry Date has been extended.
c) Any amendment to a Bond, including
without limitation the increase of the Bond Amount or the alteration of the
Expiry Date, shall be in writing duly signed or executed by authorised
representatives of each of the Beneficiary, the Principal and the
Guarantor.
Article 7
Submission of claims and claims procedure
a) A
claim under a Bond shall be in writing and shall be served upon the Guarantor on
or before the
