"УНИФИЦИРОВАННЫЕ ПРАВИЛА МТП ДЛЯ ДОГОВОРНЫХ ГАРАНТИЙ" (urcb) [англ.](Публикация Международной торговой палаты n 524)
INTERNATIONAL CHAMBER OF COMMERCE
ICC UNIFORM RULES FOR CONTRACT
(ICC publication No. 524)
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
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.
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.
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.
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
In these Rules, words or
expressions shall bear the meanings set out below and be construed
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
The party in whose favour a Bond is issued or
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.
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.
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.
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.
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.
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
Any Person who shall issue or execute a Bond on behalf of
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.
Bond to secure the performance of any Contract or Contractual Obligation.
Any company, corporation, firm, association, body, individual or
any legal entity whatsoever.
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.
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.
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.
Form of bond and liability of the guarantor
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.
vii) Any provisions for the reduction of the Bond
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
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.
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.
Release and discharge of
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
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.
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.
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.
Amendments and variations to and of the contract
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.
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 Expiry
Date and by no later than the close of the Business Day at the Guarantor"s
principal place of business set out in the Bond, on the Expiry Date.
A claim submitted by authenticated tele-transmission, EDI, telex or other means
of telefax facsimile or electronic transmission shall be deemed to be received
on the arrival of such transmission.
c) A claim delivered to the
Guarantor"s principal place of business set out in the Bond shall, subject to
proof of delivery, be deemed to be served on the date of such delivery.
d) A claim served or transmitted by post shall, subject to satisfactory proof of
delivery by the Beneficiary, be deemed to be served upon actual receipt thereof
by the Guarantor.
e) The Beneficiary shall, when giving notice of any
claim by telefax or other tele-transmission or EDI, also send a copy of such
claim by post.
f) Any claim shall state brief details of the Contract to
identify the same, state that there has been a breach or default and set out the
circumstances of such breach or default and any request for payment, performance
g) Upon receipt of a claim from the Beneficiary, the
Guarantor shall send notice in writing to the Principal of such claim as soon as
reasonably practicable and before either (a) making any payment in satisfaction
or partial satisfaction of the same or (b) performing the Contract or any part
thereof pursuant to a Contractual Obligation.
h) The Beneficiary shall,
upon written request by the Guarantor, supply to the Guarantor such further
information as the Guarantor may reasonably request to enable it to consider the
claim, and shall provide copies of any correspondence or other documents
relating to the Contract or the performance of any Contractual Obligations and
allow the Guarantor, its employees, agents or representatives to inspect any
works, goods or services carried out or supplied by the Principal.
claim shall not be honoured unless
i) A Default has occurred; and
ii) The claim has been made and served in accordance with the provisions of
paragraphs a - f of Article 7 on or before the Expiry Date.
Notwithstanding any dispute or difference between the Principal and the
Beneficiary in relation to the performance of the Contract or any Contractual
Obligation, a Default shall be deemed to be established for the purposes of
i) upon issue of a certificate of Default by a third party
(who may without limitation be an independent architect or engineer or a
Pre-Arbitral referee of the ICC) if the Bond so provides and the service of such
certificate or a certified copy thereof upon the Guarantor, or
the Bond does not provide for the issue of a certificate by a third party, upon
the issue of a certificate of Default by the Guarantor, or
iii) by the
final judgment, order or award of a court or tribunal of competent jurisdiction,
and the issue of a certificate of Default under paragraph (i) or (ii) shall not
restrict the rights of the parties to seek or require the determination of any
dispute or difference arising under the Contract or the Bond or the review of
any certificate of Default or payment made pursuant thereto by a court or
tribunal of competent jurisdiction.
k) A copy of any certificate of
Default issued under j(i) or (ii) shall be given by the Guarantor to the
Principal and the Beneficiary forthwith.
l) The Guarantor shall consider
any claim expeditiously and, if such claim is rejected, shall immediately give
notice thereof to the Beneficiary by authenticated tele-transmission or other
telefax, facsimile transmission, telex, cable or EDI, confirming the same by
letter, setting out the grounds for such refusal including any defences or other
matters raised under paragraph d of Article 3.
and settlement of disputes
a) The Applicable Law shall be the law of the
country selected by the parties to govern the operation of the Bond and, in the
absence of any express choice of law, shall be the law governing the Contract
and any dispute or difference arising under these Rules in relation to a Bond
shall be determined in accordance with the Applicable Law.
disputes arising between the Beneficiary, the Principal and the Guarantor or any
of them in relation to a Bond governed by these Rules shall, unless otherwise
agreed, be finally settled under the Rules of Conciliation and Arbitration of
the International Chamber of Commerce by one or more arbitrators appointed in
accordance with the said Rules.
c) If the Bond shall exclude the
operation of the arbitration provisions of this Article 8, any dispute between
the parties to the Bond shall be determined by the courts of the country
nominated in the Bond, or, if there is no such nomination, the competent court
of the Guarantor"s principal place of business or, at the option of the
Beneficiary, the competent court of the country in which the branch of the
Guarantor which issued the Bond is situated.