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时间: 2016-12-15 23:04:18 来源:   网友评论 0



These Uniform Rules for Demand Guarantees (ICC Publication No.458) result from the work of the ICC Joint Working Party of members representing the Commission on International Commercial Practice and the Commission on Banking Technique and Practice, and also from the work of the Drafting Group set up to finalize the text. The Rules are intended to apply worldwide to the use of demand guarantees, that is, guarantees, bonds and other payment undertakings under which the duty of the guarantor or issuer to make payment arises on" the presentation of a written demand and any other documents specified in the guarantee and is not conditional on actual default by the principal in the underlying transaction.


Demand guarantees differ from documentary credits in that they are properly invoked only if the principal has made default. However, the guarantor, like the issuer of a documentary credit, is concerned not with the fact of default, but only with documents.

Standby credits are already governed by the Uniform Customs and Practice for Documentary Credits (UCP) (1983 Revision NO. 400). They have developed into all-purpose financial support instruments which are used in a much wider range of financial and commercial activity than demand guarantees, and regularly involve practices and procedures (e. g. confirmation, issue for a bank's own account, presentation of documents to a party other than the issuer) that are in frequently encountered in relation to demand guarantees and that ally standby credits more closely with documentary credits. Accordingly, while standby credits are technically within the definition of a demand guarantee, it is expected that issuers of standby credits will continue to use the UCP, which are both more detailed and more appropriate to the particular requirements of standby credits.


These Rules do not apply to suretyship or conditional bonds or guarantees or other accessory undertaking under which the guarantor's duty to pay arises only on actual default by the principal. Such instruments are widely used but are different in character from demand guarantees and are outside the scope and purpose of these Rules.


These new Uniform Rules have been introduced because the 1978 ICC Uniform Rules for Contract Guarantees (Publication No. 325) did not gain general acceptance. The new Rules reflect more closely the different interests of the parties involved in a demand guarantee transaction. However, since Publication No. 325 continues to be used to some extent, it will be retained in force for the time being so as to be available for those who may wish to use it in preference to the new Rules. The future of Publication No. 325 will be reviewed at a later date in the light of experience.


The Beneficiary受益人

The beneficiary wishes to be secured against the risk of the principal's not fulfilling his obligations towards the beneficiary in respect of the underlying transaction for which the demand guarantee is given. The guarantee accomplishes this by providing the beneficiary with quick access to a sum of money if these obligations are not fulfilled.

The Principal被担保人

Whilst recognizing the needs of the beneficiary, the principal can expect on the grounds of equity and good faith to be informed in writing that, and in what respect, it is claimed he is in breach of his obligations. This should help to eliminate a certain level of abuse of guarantees through unfair demands by beneficiaries.


The Guarantor担保人

For these Rules to apply, the guarantee should not stipulate any condition for payment other than the presentation of a written demand and other specified documents. In particular, the terms of the guarantee should not require the guarantor to decide whether the beneficiary and principal have or have not fulfilled their obligations under the underlying transaction, with which the guarantor is not concerned. The wording of the guarantee should be clear and unambiguous.


The Instructing Party指示方

The new Rules recognize the existing widespread practice whereby an instructing party may forward to the guarantor instructions received from or on behalf of the principal and counter-guarantee such instructions.



The ICC wishes to encourage good demand-guarantee practice which is equitable to all concerned, and believes that these Rules will result in a fair balance of interests, recognizing the rights and obligations of all parties. Compared with the ICC Rules published in 1978, these Rules incorporate a major change in favor of beneficiaries in that they are no longer confined to guarantees which require the presentation of an arbitration award or other independent documentary evidence in support of any demand. However, guarantees which do require such evidence are still within the scope of these Rules. These new Rules also incorporate provisions relating to counter-guarantees.

国际商会希望鼓励对所涉各方都公平的良好的见索即付保函惯例,并且相信本规则通过认可各方的权利和义务,将会较好地平衡各方利益。与1978年出版的国际商会规则相比,本规则有利于受益人的一项主要变化是,不再要求所有保函项下受益人索偿时必须提交支持其要求的仲裁裁决或者其他独立的证明单据。但是, 如果保函要求提交此类证明,这也仍然在本规则的适用范围内。本新规则还加入了有关反担保函的规定。

It is a characteristic of all guarantees subject to these Rules that they are payable on presentation of one or more documents. The documentary requirements specified in demand guarantees vary widely. At one end is the guarantee which is payable on simple written demand, without a statement of default or other documentary requirements. At the other end is the guarantee which requires presentation of a judgment or arbitral award.


Between these two extremes lie various intermediate forms of guarantee, such as guarantees requiring a statement of default by the beneficiary, with or without an indication of the nature of the default, or the presentation of a certificate by an engineer or surveyor. All these fall within the scope of the new Rules.


However, the interests of the beneficiary must be balanced against the need to protect the principal against an unfair claim on the guarantee. The ICC considers it reasonable to provide that in accordance with principles of equity and fair dealing a demand should be in writing and should at least be accompanied by a statement by the beneficiary that, and in what respect, the principal is in default, and Article 20 so provides. A party who wishes to avoid or alter even this requirement is free to do so but must take the deliberate step of excluding or modifying Article 20 by the terms of the guarantee. However, Article 20, when read with Articles 2 (b) and (c), 9 and 11, also makes it clear that guarantors are not concerned with the adequacy of any statement of breach. The documents must, of course, appear to conform to the guarantee, so that where a non-conformity is apparent on the face of the documents the beneficiary is not entitled to payment. Moreover, these Rules do not affect principles or rules of national law concerning the fraudulent or manifest abuse or unfair calling of guarantees.


Like the UCP, these new Uniform Rules for Demand Guarantees apply where expressly incorporated into the guarantee and depend for their success upon their use by the international business community. The ICC, through its National Committees and international fora, will strongly encourage industrial and financial circles to adhere to these Rules, which will help to secure uniformity of practice in the requirements for demand guarantees.



Article 1第一条

These Rules apply to any demand guarantee and amendment thereto which a Guarantor (as hereinafter described) has been instructed to issue and which states that it is subject to the Uniform Rules for Demand Guarantees of the International Chamber of Commerce (Publication No. 458) and are binding on all parties thereto except as otherwise expressly stated in the Guarantee or any amendment thereto.


Article 2第二条

a) For the purpose of these Rules, a demand guarantee (hereinafter referred to as "Guarantee") means any guarantee, bond or other payment undertaking, however named or described, by a bank, insurance company or other body or person (hereinafter called "the Guarantor") given in writing for the payment of money on presentation in conformity with the terms of the undertaking of a written demand for payment and such other document(s) (for example, a certificate by an architect or engineer, a judgment or an arbitral award) as may be specified in the Guarantee, such undertaking being given:


1) at the request or on the instructions and under the liability of a party (hereinafter called "the principal" ) ; or


2) at the request or on the instructions and under the liability of a bank, insurance company or any other body or person ( hereinafter "the Instructing Party") acting on the instructions of a Principal to another party (hereinafter the "Beneficiary").

II) 应根据被担保人指示行事的银行、保险公司或者其他机构向另外一方(以下称“受益人”)作出。

b) Guarantees by their nature are separate transactions from the contract(s) or tender conditions on which they may be based, and Guarantors are in no way concerned with or bound by such contract(s), or tender conditions, despite the inclusion of a reference to them in the Guarantee. The duty of a Guarantor under a Guarantee is to pay the sum or sums therein stated on the presentation of a written demand for payment and other documents specified in the Guarantee which appear on their face to be in accordance with the terms of the Guarantee.

b) 就其性质而言,保函与可能作为其基础的合同或者投标条件是相互独立的交易,即使保函中有对此类合同或者投标条件的援引,担保人也与该合同或者投标条件无关,且不受其约束。保函项下担保人的义务是在收到表面上与保函条款相一致的书面付款要求及保函所规定的其他文件后支付保函所规定的金额。

c) For the purpose of these Rules, "Counter-Guarantee" means any guarantee, bond or other payment undertaking of the Instructing Party, however named or described, given in writing for the payment of money to the Guarantor on presentation in conformity with the terms of the undertaking of a written demand for payment and other documents specified in the Counter-Guarantee which appear on their face to be in accordance with the terms of the Counter Guarantee. Counter-Guarantees are by their nature separate trans actions from the Guarantees to which they relate and from any underlying contract (s) or tender conditions, and Instructing Parties are in no way concerned with or bound by such Guarantees, contract(s) or tender conditions, despite the inclusion of a reference to them in the Counter-guarantee.

c) 就本规则而言,“反担保函”系指由指示方以书面形式出具的任何担保函、保证书或者其他付款承诺,无论其名称或描述如何,规定在收到符合承诺条款的书面付款要求以及反担保函可能规定的、表面上与反担保函条款相一致的其他文件后予以付款。反担保函在性质上与和其相关联的保函以及任何基础合同或者投标条件是相互独立的交易,即使反担保函中有对此类保函、合同或者投标条件的援引,指示方也与该保函、合同或者投标条件无关,且不受其约束。

d) The e­xpressions "writing" and "written" shall include an authenticated teletransmission or tested electronic data interchange ("EDI") message equivalent thereto.


Article 3第三条
All instructions for the issue of Guarantees and amendments thereto and Guarantees and amendments themselves should be clear and precise and should avoid excessive detail. Accordingly, all Guarantees should stipulate:


a) the Principal;


b) the Beneficiary;


c) the Guarantor;


d) the underlying transaction requiring the issue of the Guarantee;


e) the maximum amount payable and currency in which it is payable;
f) the Expiry Date and/or Expiry Event of the Guarantee;
g) the terms for demanding payment;
h) any provision for reduction of the guarantee amount.

Article 4第四条
The Beneficiary's right to make a demand under a Guarantee is not assignable unless expressly stated in the Guarantee or in an amendment thereto.


This Article shall not, however, affect the Beneficiary's right to assign any proceeds to which he may be, or may become, entitled under the Guarantee.

Article 5第五条
All Guarantees and counter-guarantees are irrevocable unless otherwise indicated.


Article 6第六条
A Guarantee enters into effect as from the date of its issue unless its terms expressly provide that such entry into effect is to be at a later date or is to be subject to conditions specified in the Guarantee and determinable by the Guarantor on the basis of any documents therein specified.


Article 7第七条
a) Where a Guarantor has been given instructions for the issue of a Guarantee but the instructions are such that, if they were to be carried out, the Guarantor would by reason of law or regulation in the country of issue be unable to fulfill the terms of the Guarantee, the instructions shall not be executed and the Guarantor shall immediately inform the party who gave the Guarantor his instructions by telecommunication, or, if that is not possible, by other expeditious means, of the reasons for such inability and request appropriate instructions from that party.


b) Nothing in this Article shall oblige the Guarantor to issue a Guarantee where the Guarantor has not agreed to do so.


Article 8第八条
A guarantee may contain express provision for reduction by a specified or determinable amount or amounts on a specified date or dates or upon presentation to the Guarantor of the document(s) specified for this purpose in the Guarantee.


Article 9第九条

All documents specified and presented under a Guarantee, including the demand, shall be examined by the Guarantor with reasonable care to ascertain whether or not they appear on their face to conform with the terms of the guarantee. Where such documents do not appear so to conform or appear on their face to be inconsistent with one another, they shall be refused.


Article 10第十条
a) A guarantor shall have a reasonable time within which to examine a demand under a Guarantee and to decide whether to pay or to refuse the demand.


b) If the Guarantor decides to refuse a demand, he shall immediately give notice thereof to the Beneficiary by teletransmission, or, if that is not possible, by other expeditious means. Any documents presented under the Guarantee shall be held at the disposal of the Beneficiary.


Article 11第十一条
Guarantors and Instructing Parties assume no liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification, or legal effect of any documents presented to them or for the general and/or particular statements made therein, nor for the good faith or acts or omissions of any person whomsoever.


Article 12第十二条
Guarantors and Instructing Parties assume no liability or responsibility for the consequences arising out of delay and/or loss in transit of any messages, letters, demands or documents, or for delay, mutilation or other errors arising in the transmission of any telecommunication. Guarantors and Instructing Parties assume no liability for errors in translation or interpretation of technical terms and reserve the right to transmit guarantee texts or any parts thereof without translating them.


Article 13第十三条
Guarantors and Instructing Parties assume no liability or responsibility for consequences arising out of the interruption of their business by acts of God, riots, civil commotion, insurrections, wars or any other causes beyond their control or by strikes, lock-outs or industrial actions of whatever nature.



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