Статья 28Унифицированные правила ICC для платежных гарантий (Унифицированные правила для гарантий по первому требованию 1992 года) (URDG) [рус., англ.]

Если только в гарантии либо в контр-гарантии не предусмотрено иное, любые споры между гарантом и бенефициаром по поводу гарантии или между инструктирующей стороной и гарантом по поводу контр-гарантии должны улаживаться исключительно компетентными судебными органами страны местонахождения гаранта либо инструктирующей стороны (в зависимости от случая), или, если гарант либо инструктирующая сторона имеют несколько местонахождений, то компетентными судебными органами страны нахождения того филиала, который выдал гарантию либо контр-гарантию.

FOR DEMAND GUARANTEES

(ICC Publication No. 458)

It is nearly 30 years since the ICC first became interested in the use of bank demand guarantees in international trade and set up a Joint Working Party of the Commission on International Commercial Practice and the Commission on Banking Technique and Practice to formulate rules designed to provide safeguards against unfair calling and a fair balance of competing interests. The subject proved more intractable than had been thought and some thirteen years elapsed before the publication of the ICC Uniform Rules for Contract Guarantees (ICC Publication № 325). Those Rules sought to deal with the problem of unfair calling by requiring the production of a judgment or arbitral award as a condition of the beneficiary's right to payment. Though Publication № 325 was used, and continues to be used, to some extent, the requirements proved too removed from prevailing banking and commercial practice to gain general acceptance.

The new ICC Uniform Rules for Demand Guarantees (ICC Publication № 458) reflect more closely international practice in the use of demand guarantees whilst at the same time preserving the goal of the original rules to balance the interests of the different parties and to curb abuse in the calling of guarantees. The new Rules are the product of the extensive work and consultation carried out by a Joint Working Party of the two Commissions under the chairmanship of Dr. Rudolf von Graffenried, and completed by a smaller Drafting Group under the chairmanship of Professor Roy Goode.

The Uniform Rules for Demand Guarantees, which cover not only relations between guarantor and beneficiary but also those arising under counter-guarantees, represent a major contribution to the adoption of uniform practice in this important field of international trade finance. They embody the collective knowledge and experience of ICC National Committees, professional and commercial associations and individual specialists accross the world, and provide a natural complement to The ICC's hugely successful Uniform Customs and Practice for Documentary Credits, a new revision of which will shorlty be completed. The Uniform Rules for Demand Guarantees fulfil an important need and I have no doubt that they will be widely adopted.Meanwhile ICC Publication № 325 will continue to be available for the time being for those who wish to use it and its future will be reviewed at a later date in the light of experience of the new Rules.

The ICC would like to express its indebtedness to the chairman of the Commission on International Commercial Practice, Mr. Victor Uckmar, and the chairman of the Commission on Banking Technique and Practice Mr. Charles del Busto; and to all the members of these two Commissions who contributed to the preparation of the new rules. The ICC also greatly appreciates the work accomplished by the members of the Joint Working Party and of the Drafting Group who elaborated the Rules, and to the efforts of the respective secretaries to the two Commissions, Guillermo Jimenez and Stefan Draszczyk, and the former Head of Division, Carol Xueref, who was involved in the earlier stages of the work.

These Uniform Rules for Demand Guarantees (ICC Publication № 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 finalise 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 № 400). They have developed into allpurpose 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 infrequently 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 undertakings 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 № 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 № 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 № 325 will be reviewed at a later date in the light of experience.

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 wich 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.

Whilst recognising 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 centain level of abuse of guarantees through unfair demands by beneficiares.

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 transactions, with which the guarantor is not concerned. The wording of the guarantee should be clear and unambiguous.

The new Rules recognise 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, recognising the rights and obligations of all parties. Compared with the ICC Rules published in 1978, these Rules incorporate a major change in favour 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.

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 tha 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 tor demand guarantees.

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 № 458) and are binding on all parties thereto except as otherwise expressly stated in the Guarantee or any amendment thereto.

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

i) at the request or on the instructions and under the liability of a party (hereinafter called «the Principal»); or

ii) 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»).

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.

c) For the purpose of these Rules, «Counter-Guarantee» means any guarantee bond or other payment under taking 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 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-Guarantee are by their nature separate transactions 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.

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

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 the 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.

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.

All Guarantees and Counter-Guarantees are irrevocable unless otherwise indicated.

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.

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 fulfil 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 hot 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.

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.

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.

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 expeditions means. Any documents presented under the Guarantee shall be held at the disposal of the Beneficiary.

Guarantors and Instructing Parties assume no fiability or responsibility for the form, sufficiency, accuracy, genuineness, falsification, or legal effect of any document 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.

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.

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 commotions, insurrections, wars or any other causes beyond their control or by strikes, lock-outs or industrial actions of whatever nature.

a) Guarantors and Instructing Parties utilising the services of another party for the purpose of giving effect to the instructions of a Principal do so for the account and at the risk of that Principal.

b) Guarantors and Instructing Parties assume no liability or responsibility should the instructions they transmit not be carried out even if they have themselves taken the initiative in the choice of such other party.

c) The Principal shall be liable to indemnify the Guarantor or the Instructing Party, as the case may be, against all obligations and responsibilities imposed by foreign laws and usages.

Guarantors and Instructing Parties shall not be excluded from liability or responsibility under the terms of Articles 11, 12, and 14 above for their failure to act in good faith and with reasonable care.

A Guarantor is liable to the Beneficiary only in accordance with the terms specified in the Guarantee and any amendment(s) thereto and in these Rules, and up to an amount not exceeding that stated in the Guarantee and any amendment(s) thereto.

Without prejudice to the terms of Article 10 in the event of a demand the Guarantor shall without delay so inform the Principal or, where applicable, his Instructing Party and in that case the Instructing Party shall so inform the Principal.

The amount payable under a Guarantee shall be reduced by the amount of any payment made by the Guarantor in satisfaction of a demand in respect thereof and, where the maximum amount payable under a Guarantee has been satisfied by payment and / or reduction, the Guarantee shall thereupon terminate whether or not the Guarantee and any amendment(s) thereto are returned.

A demand shall be made in accordance with the terms of the Guarantee before its expire, that is on or before its Expiry Date and before any Expire Event as defined in Article 22. In particular, all documents specified in the Guarantee for the purpose of the demand, and any statement required by Article 20, shall be presented to the Guarantor before its expiry at its place of issue; otherwise the demand shall be refused by the Guarantor.

a) Any demand for payment under the Guarantee shall be in writing and shall (in addition to such other documents as may be specified in the Guarantee) be supported by a written statement (whether in the demand itself or in a separate document or documents accompanying the demand and referred to in it) stating:

i) that the Principal is in breach of his obligation(s) under the underlying contract(s) or, in the case of a tender guarantee, the tender conditions, and

ii) the respect in which the Principal is in breach.

b) Any demand under the Counter-Guarantee shall be supported by a written statement that the Guarantor has received a demand for payment under the Guarantee in accordance with its terms and with this Article.

c) Paragraph «a» of this Article applies except to the extent that it is expressly excluded by the terms of the Guarantee. Paragraph «b» of this Article applies except to the extent that it is expressly excluded by the terms of the Counter-Guarantee.

d) Nothing in this Article affects the application of Articles 2 «b» and 2 «c», 9 and 11.

The Guarantor shall without delay transmit the Beneficiary's demand and any related documents to the Principal or, where applicable, to the Instructing Party for transmission to the Principal.

Expiry of the time specified in a Guarantee for the presentation of demands shall be upon a specified calendar date («Expiry Date») or upon presentation to the Guarantor of the document(s) specified for the purpose of expiry («Expiry Event»). If both an Expiry Date and an Expiry Event are specified in a Guarantee, the Guarantee shall expire on whichever of the Expiry Date or Expiry Event occurs first, whether or not the Guarantee and any amendment(s) thereto are returned.

Irrespective of any expiry provision contained therein, a Guarantee shall be cancelled on presentation to the Guarantor of the Guarantee itself or the Beneficiary's written statement of release from liability under the Guarantee, whether or not, in the latter case, the Guarantee or any amendments thereto are returned.

Where a Guarantee has terminated by payment, expiry, cancellation or otherwise, retention of the Cuarantee or of any amendments thereto shall not preserve any rights of the Beneficiary under the Guarantee.

Where to the knowledge of the Guarantor the Guarantee has terminated by payment, expiry, cancellation or otherwise, or there has been a reduction of the total amount payable thereunder, the Guarantor shall without delay so notify the Principal or, where applicable, the Instructing Party and, in that case, the Instructing Party shall so notify the Principal.

If the Beneficiary requests an extension of the validity of the Guarantee as an alternative to a demand for payment submitted in accordance with the terms and conditions of the Guarantee and these Rules, the Guarantor shall without delay so inform the party who gave the Guarantor his instruction. The Guarantor shall then suspend paymend of the demand for such time as is reasonable to permit the Principal and the Beneficiary to reach agreement on the granting of such exension and for the Principal to arrange for such extension to be issued.

Unless an extension is granted within the time provided by the preceding paragraph, the Guarantor is obliged to pay the Beneficiary's conforming demand without requiring any further action on the Beneficiary's part. The Guarantor shall incur no liability (for interest or otherwise) should any payment to the Beneficiary be delayed as a result of the above-mentioned procedure.

Even if the Principal agrees to or requests such extension, it shall not be granted unless the Guarantor and the Instructing Party or Parties also agree thereto.

Unless otherwise provided in the Guarantee or Counter-Guarantee, its governing law shall be that of the place of business of the Guarantor or Instructing Party (as the case may be), or, if the Guarantor or Instructing Party has more than one place of business, that of the branch that issued the Guarantee or Counter-Guarantee.

Unless otherwise provided in the Guarantee or Counter-Guarantee, any dispute between the Guarantor and the Beneficiary relating to the Guarantee or between the Instructing Party and the Guarantor relating to the Counter-Guarantee shall be settled exclusively by the competent court of the country of the place of business of the Guarantor or Instructing Party (as the case may be), or, if the Guarantor or Instructing Party has more than one place of business, by the competent court of the country of the branch which issued the Guarantee or Counter-Guarantee.

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