外文文献及译文--交易中的信用证欺诈及其可能的仲裁

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1、 中文 4010 字 出处： Fohler G. Fraud in the Letter of Credit Transaction and Its Possible ArbitrationM. 1999. 本科毕业论文 （外文翻译） 题 目 学生姓名 专业班级 国际经济与贸易 学 号 院 （系） 经济贸易系 指导教师 (职称 ) 完成时间 1 Fraud in the Letter of Credit Transaction and its Possible Arbitration Institute of Comparative Law McGill University Gernot F

2、ohler Abstract The letter of credit continues to play an indispensable role in the financing and securing of international commercial transactions. Its usefulness and efficacy derives primarily from the fact that it is independent from the underlying relationship between buyer and seller. In a consi

3、derable number of cases, however, the independence of the letter of credit has been challenged as a result of fraud in the underlying transaction. After analyzing recent reforms of the regulatory framework governing letters of credit, this fraud exception to the independence principle will be reappr

4、aised in the light of current developments in Canada and the United States. Finally, the author argues that arbitration can and indeed should play an increasingly important role in the resolution of international letter of credit disputes involving fraud in the transaction. 1 About L/C fraud The L/C

5、 cycle operates in the following way: after a buyer and a seller have entered into a sales contract, the buyer applies for a L/C from an issuing bank. Upon receiving the L/C, the seller would check its authenticity with an advising bank. Having confirmed the L/C is correct, the seller exports the go

6、ods and prepares a series of documents such as Inspection Certificate, Bill of Lading etc., proving to its negotiating bank that the goods shipped are in accordance with the buyers standard. Before the negotiating bank releases money to the seller, it will check on face value that the submitted docu

7、ments tally with the buyers instruction. Thereafter, the negotiating bank will forward the documents to the buyer through its issuing bank. In order to obtain these documents from the issuing bank, the buyer will have to either complete its payment or enter into mutual agreement with the issuing ban

8、k on a payment date. 2 With the documents at hand, the buyer could get the goods at the port and thus the L/C cycle completes. The entire L/C cycle is governed by the internationally recognized regulation UCP 600, which is issued by the International Chamber of Commerce. The L/C cycle is comparable

9、to credit card transactions, in which a bank promises to pay on behalf of the buyer (.Independence Principle).This payment method is independent from the underlying business transaction. The bank is complied to honor the L/C as long as the submitted documents, on its face, is correct. (Compliance Pr

10、inciple) Despite the availability of regulations and scrutiny of the banks, there is inevitably weakness in the L/C system. It is not uncommon for the fraudsters to exploit the Independence Principle and the Compliance Principle. After all, the bank only examines the document, but not physically exa

11、mines the goods at the port. It is common for sellers to cheat the L/C cycle. As in a typical L/C fraud scenario, a seller ships out substandard goods ( short shipment). In other cases, the shipment in fact may not exist ( false shipment) where the seller defrauds the bank by presenting false Bill o

12、f Lading to support the existence of the shipment. If the bank fails to timely discover the scam, it will release money to the seller and then, the case will not surface until the buyer physically receives the goods at a later stage. Although it is not prevalent, a buyer sometimes cheats the L/C cyc

13、le. The typical trick is that a buyer places an order to a seller and requests the payment be settled by L/C. The buyer also requests to arrange transportation for the goods. Then, the buyer appoints a third party for the application of L/C. A legitimate L/C will be sent to the seller. After the sel

14、ler checks correct the L/C, the goods will be handed over to the transportation company as denoted by the buyer. However, the transportation company is in fact a party to the buyer, which provides incorrect information to the shipping company on the Bill of Lading. Although the goods finally reach t

15、he destination country, the seller fails to honor the L/C because of the incorrect Bill of Lading. Another common type of L/C fraud is known as L/C Kiting. Some merchants may think of obtaining cash flow by using their existing credit facility at their bank, such as L/C, without there being a genuine underlying transaction. By honoring an L/C, the fraudster could improve cash flow of the company at a comparatively low interest rate. Because the