China’s Labor Law

The New York Times

October 19, 2006

Letters to the Editor, page A26

China’s Labor Law

To the Editor:

Re “China Drafts Law to Empower Unions and End Labor Abuse” (front page, Oct. 13):

American companies support high labor standards in China. Indeed, we are troubled that such fundamental rights as freedom of association are forbidden under current Chinese law and not provided for in the draft law.

As a first step, current Chinese labor law needs to be enforced, which your article rightly notes is rarely done and targets supposedly deep-pocketed foreign companies when it is.

But American businesses believe that the draft law is too rigid and will lead to slower job growth. Making matters worse, ambiguities in the draft law would have to be sorted out in a judicial system that does not always operate fairly or predictably.

And since both foreign and domestic employers need a predictable investment climate, it should come as no surprise that an ambiguous and unpredictable law would give investors pause.

Adam B. Greene

New York, Oct. 13, 2006

The writer is vice president of labor and corporate responsibility for the United States Council for International Business.

 

More on USCIB’s Labor and Employment Committee

More on USCIB’s Corporate Responsibility Committee

Remarks by Ronnie L Goldberg to the Jamaica Employers Federation Forum for Executive Women

Ronnie Goldberg
Ronnie Goldberg

Remarks by Ms. Ronnie L. Goldberg

Executive Vice President and Senior Policy Officer

United States Council for International Business

Jamaica Employers’ Federation Forum for Executive Women

 

I am honored and delighted to be with you this morning at the launch of the JEF Forum for Executive Women. I am speaking to you in a dual capacity: I am Executive Vice President of the United States Council for International Business. Like you, we are a membership organization, representing some 300 corporations, firms, and associations from all sectors of the U.S. economy. And like JEF, we represent our country’s employers in the International Organization of Employers (IOE), which has a membership of some 140 countries, and which represents the views of employers on international labor and employment policy issues at the International Labor Organization (ILO) in Geneva. And that is my second hat. I am also here in my capacity as the IOE Regional Vice President for North America and the Caribbean.

Jackie [Coke-Lloyd, JEF Executive Director] has asked me to speak on the subject of Women’s Entrepreneurship. I want to begin by setting the broader context. Women’s entrepreneurship is both about women’s position in society and about the role of entrepreneurship in the same society. Each of these is a vast topic, and the latter particularly is a front burner subject for employers and their organizations around the world. The International Organization of Employers (IOE) in Geneva has produced an extensive body of work in this area. In fact, last spring at the U.N. in New York, I heard Jackie Coke-Lloyd speak eloquently on behalf of the IOE on the actions that governments must take — through economic policy measures and promoting the reform of laws, regulations, and other barriers to growth — to unleash entrepreneurship and create an enabling environment for employment creation.

Our subject this morning is a subset of these issues.

The first thing one learns in beginning to explore the world of women’s entrepreneurship is the magnitude and diversity of the phenomenon. Worldwide, women-owned businesses comprise between ¼ and 1/3 of businesses in the formal economy, and probably even more in the informal economy. Women-owned enterprises exist in all sectors of the economy and are of all sizes. The Body Shop, a U.K.-based multinational, is the product of women’s entrepreneurship. However, women are most heavily represented in small businesses, perhaps largely due to legal, social, and/or cultural factors.

These estimates are likely to be low: First, because available data does not always distinguish by gender, and secondly, because women are more likely to run businesses in the informal economy and to operate through domestic service and homework. Such activities by their very nature are less likely to be counted in official statistics.

Here are two examples from opposite ends of the development spectrum that speak to both magnitude and diversity of the subject:

— In the U.S., there were at last government count approximately 6.2 million women owned firms, employing 9.2 million people, generating $1.15 trillion in sales.

— In Zimbabwe, 97% of all businesses are micro (employing fewer than 5) and of these, 67% are run by women.

In the U.S., we are told by the U.S. Department of Labor, the issues of most importance to women entrepreneurs are access to capital, trade, affordable health care, taxes, access to government procurement, gaining media exposure, work-life balance, trends in technology, and retirement security.

Of course the specifics on such a list will vary enormously among countries with different levels of development, but I would venture to guess that to the extent that these concerns are fundamentally about accessing the capital and markets needed to grow a profitable and sustainable business, and about securing essential social protections, women entrepreneurs in many countries face the same issues. At first glance, the striking thing about these issues is that they are small business issues, not particularly women’s issues.

Indeed, there is a certain “so what” to everything I have said so far. After all, women comprise approximately half the human race. That their enterprises should be numerous and diverse, that they should have an impact on their economies, and that they share the problems of all small business owners could be considered obvious.

So why does the subject of women’s entrepreneurship deserve separate consideration? Indeed, why does it, as I will argue this morning, deserve separate and specific policy responses, both from governments and from organizations such as our own? The answer may be obvious to those of us in this room, but it bears articulating.

The OECD has concluded that the concerns and needs of women entrepreneurs are distinct and need to be studied separately for two reasons:

— Women’s entrepreneurship constitutes an important untapped source of economic growth, and

— The topic has been largely neglected. Mainstream research, polices and programs often do not take into account the specific needs of women entrepreneurs and potential entrepreneurs.

These points are obviously interconnected and they are worth considering in turn.

The Secretary General of the OECD observed recently that “half the brainpower on earth is in the hands of women,” and it only makes economic sense to harness it. Let’s leave aside the question of whether the SG has wildly underestimated. The point is that countries that do not capitalize on the full potential of one-half of their society are grossly misallocating their human resources and compromising their ability to compete in the global economy.

A recent lead article in The Economist put it this way: “Forget China, India, and the Internet. Economic growth is driven by women.” The article goes on to observe that an increase in female employment, in both the developed and developing world, has arguably been the biggest engine of global growth in recent decades.

There is more. There is clear evidence that enabling women to develop their skills and qualifications and to join the labor market boosts incomes and well being throughout the society in question. In particular – as those in this room well know, given Jamaica’s enviable record in education – educating girls boosts prosperity. Not only are better-educated women more productive, they raise healthier, better-educated children. Putting more resources in the hands of women has a multiplier effect, raising the welfare of the entire family.

Yet, despite their gains and despite these demonstrable impacts, women remain perhaps the world’s most underutilized resource. In short, not only is equal opportunity in the area of economic empowerment not a reality. Its absence is a drag on growth, development and poverty alleviation.

Which brings us to the second point: what are the gender specific entrepreneurship issues and what are appropriate policy responses? And here I beg your indulgence once again as I state what may be obvious to us, but what often needs to be better reflected in our programs and policies.

Many differences occur because women’s life experiences contrast with those of men in terms of the education they receive, their involvement with their families, the social spaces they occupy and the circles in which they mix. As a result of these differences, women may lack the confidence, skills and resources to successfully start and run a business. There are a variety of reasons for this. Perhaps the most important is societal or cultural resistance to women in business. Others include women’s traditionally more significant role relative to men in balancing work and home responsibilities and also women’s overlapping productive and reproductive roles. Let me say a word about each of these

— Socio-cultural resistance to women in business

Such resistance may be well engrained in societies and the effects may begin from childhood. Limited or inadequate access to education may limit a women’s business potential, as may the notion that certain fields of endeavor are inappropriate or off-limits.

These negative attitudes towards women in business may have a number of potential consequences. Firstly, women may not consider business as a career option or lack the confidence to start up and run a business. Secondly, if a woman does start up a business these attitudes may impact on her choice of sector and her investment behavior. The evidence indicates women’s enterprises tend to be smaller both in terms of workers employed and in terms of the presence and value of fixed assets. Women’s enterprises also tend to be concentrated in low investment, less remunerative sub-sectors which build on traditional skills, while men tend to be concentrated in more dynamic sub-sectors. Lastly, women engaged in economic activities may not perceive themselves as “business women” and therefore not register their business, restricting access to business development services.

— Balancing home and work responsibilities

Women’s potential in business is often limited by their traditionally more significant role relative to men in balancing work and home responsibilities. The division of labor between men and women members of the household may reduce the amount of time, energy and concentration women have to expend on their business.

— Overlapping productive and reproductive roles of women

The overlapping of productive and reproductive roles influences women’s entrepreneurial behavior. This may have implications as to women’s choice of economic activity and investment behavior. Women may prefer businesses that maintain close links between the personal and business. Women may invest less in their business and more in their family than men.

These gender-specific constraints to entrepreneurship require specific policy responses. Frequently, however, business laws, policies and services do not adequately consider the needs of women entrepreneurs and sometimes further exacerbate gender-specific constraints to entrepreneurship.

Here is where we – JEF, USCIB, and IOE – come in. Our organizations exist to inform and advise governments and international bodies such as the ILO on appropriate policies, and to provide useful services to our business members.

Let’s take policies first. Laws that discriminate on the basis of sex – directly or indirectly – can be constraints to entrepreneurship. For example, in some countries women lack the legal status to establish a contract, represent themselves in legal cases and/or hold property in their own name. [I understand that here in Jamaica recent legislation on Property Rights of Spouses and on Maintenance has addressed such concerns] On the other hand, a legal framework that does not provide for the overlapping productive and reproductive roles of women may indirectly discriminate against women. Thus, we need to lobby for laws that increase the ability of women to participate in the labor force by ensuring equal treatment (and safety) in the workplace, but also those that address concerns such as the availability of affordable day care.

We need to encourage our governments to listen to the voices of women entrepreneurs, and to incorporate a women’s entrepreneurial dimension in the formation of all SME-related policies. And to do this effectively, they and the international organizations they support (such as OECD and ILO) need to improve the factual and analytic underpinnings of our understanding of the role of women entrepreneurs in the economy. The ILO, for example, has a program on Women’s Entrepreneurship Development and Gender Equality (WEDGE) within its Small Enterprise Development program. WEDGE seeks to develop a knowledge base on, innovative support services and products, and an advocacy voice for women entrepreneurs. This area deserves more engagement and support from both governments and the private sector.

Equally, it is important that the services that we employers’ organizations provide to our members consider the needs of both women and men entrepreneurs. For example, women entrepreneurs may require specific services to increase their business confidence and/or specific mechanisms for increasing their access to credit. Women’s entrepreneur networks (such as the one you are launching today) are major sources of knowledge and valuable tools for the development and promotion of women-owned businesses. Clearly, I am preaching to the converted here in Kingston.

Valuable networks can also be established internationally. I referred earlier to the extensive work done by IOE in Geneva on enabling environments for entrepreneurship. In preparing my remarks this morning I relied on an excellent IOE draft paper on “Promoting Women Entrepreneurs and Women-Owned Businesses Through Employers’ Organizations.” This compendium of case studies and practices from around the world is a rich resource of best practices and ideas, and I look forward to working with Jackie and our IOE colleagues to complete this work and ensure that it is widely disseminated.

Let me conclude with another quotation from the Economist:

“Despite the increased economic importance of women, they could become more important still. More of them could join the labor market and more could make full use of their skills and qualifications. This would provide a sounder base for long-term growth. It would help to finance rich countries’ welfare states as populations age and it would boost incomes in the developing world… There is a saying that women must do twice as well as men to be thought half as good. Luckily that is not so difficult.“

Thank you very much for your attention. I look forward to working with you both at home and in Geneva.

 

More on USCIB’s Labor and Employment Policy Committee

International Organization of Employers website

Jamaica Employers’ Federation website

Remarks by USCIB President Peter M Robinson to the OECDs Ministerial Bureau

Peter M. Robinson
Peter M. Robinson

Remarks by Peter M. Robinson

President, United States Council For International Business

At BIAC’s Consultations With the OECD’s Ministerial Bureau

Paris, May 22, 2006

 

I am pleased to have this opportunity to offer BIAC’s perspectives on the important trade and investment issues facing OECD governments.

First, on trade, the international business community continues to support an ambitious, comprehensive, and balanced result in the Doha Round negotiations. As our statement makes clear, we see this Round as a once-in-a-lifetime opportunity to promote major trade liberalization that will benefit and create prosperity for both
developed and developing countries. For OECD companies, this Round is critical as their growth prospects depend on improved access to industrial markets around the world.

That said, we are disappointed at the snail-like pace of these negotiations. Deadlines for reaching agreements on negotiating modalities have come and gone with the perpetual promise, seldom fulfilled, of further progress sometime down the road. That approach is a recipe for failure.

Our statement underscores our strong-held view that time is running out. Procrastination and posturing must now give way to constructive consensus building. Dynamic political leadership on the part of OECD Ministers is now more important than ever.

I believe I can state with some certainty that the December 2006 deadline for concluding these negotiations is a real one. OECD governments should harbor no illusions that the U.S. Administration can readily obtain an extension of Trade Promotion Authority to accommodate these negotiations. Given the current mood in the U.S. Congress and the uncertainty about the shape of the new Congress after the mid-term elections in November, the likelihood of the President obtaining new trade negotiating authority is remote.

I believe it appropriate at this time to also address an argument that we in the business community hear all too often, namely, that world business has not vigorously supported this Round. That simply is not true. Just look at the number of Letters to the Editor and Op-ed pieces in the international press coupled with numerous policy statements issued by individual CEOs, national business groups, and international business associations, including BIAC, that have appeared in recent weeks. Witness also the strong business presence at the Seattle, Cancun, and Hong Kong Ministerials. The fact is we want an ambitious result and will continue to lobby vigorously with our governments to that end.

But business is not at the negotiating table. Trade negotiations are the sovereign responsibilities of governments, and it is they who must take the lead.

Second, on investment, the BIAC statement draws attention to the growing threat of investment protectionism, or more bluntly put, economic nationalism. In the U.S., last year’s bid by the Chinese National Oil Corporation to take over an American oil company followed by this year’s Dubai port affair have unleashed populist calls in the U.S. Congress and the media for stricter rules on the way the U.S. Government reviews foreign takeover or merger bids. While the U.S. Congress has yet to act definitively in this area, we can expect some tightening of the rules even as we in the business community work actively behind the scenes to keep the changes from impeding needed investment flows.

Investment protectionism is not limited to the U.S. Other OECD Governments are contemplating measures – or have taken them already – to block foreign investments.

BIAC calls on OECD Governments to push back against such protectionist threats and instead continue efforts to enhance investor’s rights through transparent, predictable, and non-discriminatory treatment of investment transactions across borders. Certainly, investment protectionism will do nothing to cure the massive external imbalances, which as the “Delivering Prosperity” paper notes, are the major challenges facing OECD economies.

In sum, on both the trade and investment fronts, we are at a crossroads. Our countries can move forward, as we so ardently hope—in order to create a better and more prosperous world for our children, or stand idly by and watch the steady erosion of the multilateral institutional framework that has served the world economy so well in the postwar years.

OECD Governments can – and must – do their utmost to promote continued trade liberalization through a successful conclusion of the Doha Round while resisting the siren call of investment protectionism. We recognize that such an approach carries a certain degree of political risk for many governments, but the policy alternatives are even starker.

More on how business works with the OECD

 

CAN U.S. BANKS ISSUE GUARANTEES?

This article appeared in ICC Documentary Credits Insight

Volume 8, No. 2 April-June 2002

by Vin Maulella, banking advisor to USCIB

CAN U.S. BANKS ISSUE GUARANTEES?

In answer to the often-asked question, “Can U.S. banks issue guarantees?”, most readers have probably heard the response: “No, except for Morgan Guaranty because they are grand-fathered.”   For decades, bankers around the world simply repeated that response as if it were a mantra without much thought about what it meant. Even though the statement was not 100% correct, it sounded authoritative and everyone accepted it.

In fact, the creation and growth of the standby market in the United States and globally has been attributed in some circles to a perceived U.S. regulatory prohibition against the issuance of guarantees or anything with the word “guarantee” in it.  Today the response needs to be revisited. Over the years, the market has become more sophisticated, participants more articulate, and, to the delight of all, regulators and rule-makers have largely acted in concert with the market.

WHAT’S IN A NAME?

To U.S. bankers, the word “guarantee” suggests something foreign banks do; surety is something insurance companies do.  “U.S. banks do not and cannot guarantee someone else’s performance!” … “The bank is not a party to the underlying transaction and therefore cannot determine if there has been contractual compliance!” … “Banks are not empowered or permitted by their charter to do this!”  How many times have you heard these arguments? Historically, U.S. courts have restrictively interpreted statutory provisions empowering banks to engage in banking activities: if a power was not expressly granted, it was not given. As the result of a series of 19th Century cases, suretyship activities of banks were determined to be ultra vires.  Compound that with the conservative bias of bank counsel and these interpretations went unchallenged; they simply became accepted as a limitation on bank powers.  However with the growth of standbys in the 1970s, it became imperative for regulators to determine whether a bank was authorized to engage in any activity that resembled a traditional suretyship undertaking.  Standbys were seen as functionally similar to suretyship undertakings with which they competed for market share.

Suretyship v. Standbys

So, what was the regulators’ rationale for their decision? To start with, the issue had long been settled for commercial letters of credit. Perhaps that made the process easier. Do standbys more closely resemble commercial LCs or suretyship undertakings and guarantees? Given that DCI’s readership understands commercial letters of credit, let’s consider how suretyship undertakings and accessory guarantees differ from standby letters of credit.

In a suretyship undertaking or accessory guarantee, the issuer is obligated to pay or fulfill another’s obligation; defenses available to the principal are generally available to the guarantor.  As a general rule, the guarantor’s obligation is linked to the underlying transaction and only arises if and to the extent that obligation is due, often necessitating intense factual inquiry. Henry Harfield  observed that one of the primary elements distinguishing a surety from a banker issuing a standby letter of credit is the question of what types of risk are being evaluated.  The banker examines the credit-worthiness of its customer, while the surety focuses on the statistical probability of certain events occurring which would prevent his principal from performing the contract.  Granted these risks may overlap. Harfield concedes that a surety may disregard his principal’s ability to perform a commitment if he is satisfied that the principal’s financial condition is such that the principal can reimburse the surety for money demanded or for funds needed to complete the project if that is the undertaking of the guarantee.  Accordingly, it is not unusual to see standby letters of credit issued in favor of surety companies, although one must wonder if the costs for both undertakings are economical.

In a letter of credit, the bank is guaranteeing its own performance, i.e., the bank will pay (honor) upon presentation of a complying document and that document may state that there has been a default. So, the bank does not determine that a default occurred but merely determines whether it received a required document stating that a default occurred.   That reasoning leads to the logical use of the letter of credit as a substitute.

TEXT v TITLE

The 1962 Revision of the Uniform Customs and Practice for Documentary Credits (the UCP), ICC Brochure No. 222, first introduced the expression “any arrangement, however named or described” to encompass all undertakings which might be covered under the generic “documentary credit(s)” and “credit(s)”.  That same expression has continued through the 1974, 1983, and 1993 Revisions of the UCP.  The 1983 and 1993 revisions expanded the stated litany to include “standby letters of credit”.

The ICC uses the same “however named or described” expression in the Uniform Rules for Demand Guarantees (ICC Publication No. 458) to identify undertakings such as guarantees, bonds, and the like which may be included under those rules.

On the U.S. domestic scene, the revision of the U.S. Uniform Commercial Code (UCC) Article 5, simply defines letter of credit as “a definite undertaking”.   Importantly, Comment 6 to Section, 5-102(10), reinforces that “The label on a document is not conclusive; certain documents labeled “guarantee” in accordance with European (and occasionally, American) practices are ‘letters of credit.'”  To further make the point that labels are no longer the critical determinant, the 1996 Interpretive Ruling of the US Office of the Comptroller of the Currency dropped its 25-year old safety and soundness guideline that “Each letter of credit should conspicuously state that it is a letter of credit or be conspicuously entitled as such.”   The ruling itself uses the expression “letters of credit and other independent undertakings” and the OCC discussion accompanying the Federal Register notice explains that this change updates the former regulation “to reflect modern market standards and industry usage … and to cover a broader array of transactions in this area.”

In the international arena, UNCITRAL has drawn up a convention entitled the UN Convention on Independent Guarantees and Standbys Letters of Credit. The title alone strongly suggests that these two types of instruments may perform the same functions. Article 2 defines “undertaking” as an independent commitment to pay upon simple demand or upon demand accompanied by other documents, in conformity with the terms and documentary conditions of the undertaking.

Finally, the most comprehensive effort to date articulating rules of practice for this class of undertakings, the International Standby Practices 1998 (ISP98), ICC Publication No. 590, states that it simply applies to “A standby letter of credit or other similar undertaking, however named or described….” The Preface to ISP98 suggests other standby names, reflecting the market characterization of standbys according to their use in the underlying transactions.  Therefore, undertakings titled “Bid Bond”, “Tender Bond”, “Advance Payment Guarantee”, “Counter Guarantee”, “Insurance Standby”, and “Performance Guarantee” may well fall under the rubric of standby letters of credit, provided the undertaking is independent and documentary.

INDEPENDENT AND DOCUMENTARY?

How do we determine whether an undertaking is independent and documentary?

Clearly, the independent character of the undertaking should be apparent from its terms.  That reference may be explicit or alternatively, the undertaking itself should “subject it to laws or rules providing for its independent character.”  Accepting this “safety and soundness” guideline from the Office of the Comptroller of the Currency, undertakings issued subject to the UN Convention, UCP, Uniform Rules on Demand Guarantees (URDG), Revised UCC, or the ISP are independent.

The various models

Let’s look at each of these models.

The UN Convention frames this independence as separate from the precedent (underlying) transaction or the subsequent (counter-guarantee) transaction.  It also enhances our appreciation of independent as something that may be within the control or sphere of operations of the issuer.

Using UCP terminology, “independent” means that the undertaking is separate from the underlying “sales or other contract(s) on which they may be based.”  UCP 500 Article 3 further refines the independent nature of the undertaking, reinforcing that separateness, “even if any reference whatsoever to such contract(s) is included in the Credit.” UCP 500 Article 3 clearly expresses that the issuer cannot avail itself of defenses otherwise available to the applicant “resulting from his relationships with the Issuing Bank or Beneficiary.” Conversely, the beneficiary cannot avail itself of “the contractual relationships existing between the Applicant and the Issuing Bank.”

These explicit references to defined relationships underscore the separateness of the

undertakings: (i) the underlying sales or other contract; (ii) the application and security agreement; and (iii) the letter of credit.  The first, the underlying sales contract which specifies that payment is to be made via letter of credit, is between the buyer (applicant) and seller (beneficiary). The bank (issuer) is not a party to that contract.  The second, the application and security agreement, between the buyer and the bank, requests the bank to issue the letter of credit but the seller (beneficiary) is not a party to that arrangement.  Finally, the actual letter of credit in which the bank obligates itself to pay the seller (beneficiary) [against the presentation of documents] is a unilateral bank obligation to the beneficiary.  The applicant is not a party to the credit.

This clearly distinguishes the letter of credit, however named or described, from a contract guarantee, accessory guarantee or other bilateral contract which would effectively make the bank a party to the underlying transaction and make the bank’s obligation dependent on the underlying arrangement to which it is not a party.

URDG Article 2(b) parallels UCP Article 3: “Guarantees by their nature are separate transactions from the contract 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.”

This principle is restated with greater specificity in the U.S. Uniform Commercial Code, the UN Convention, U.S. regulatory guidelines, and in expressions of market practice.  In each of these articulations, “independence” is expressed in terms consistent with the focus of that particular set of rules.  For example, in UCC, the focus is on the legal implications of the independence principle, that is, the rights and obligations of the parties–notably the issuer and beneficiary–and impact of that relationship on injunctive relief.  The Commentary to UCC Section 5-109, Fraud and Forgery, gives additional insight.  It justifies the setting of a high standard for injunctive relief, in part due to the independence principle.  Only where “the contract and circumstances reveal that the beneficiary’s demand for payment has ‘absolutely no basis in fact, ‘[and] where the beneficiary’s conduct has so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served,'” may a court enjoin payment.

The ISP98 Rule 1.06(c) restates the independence principle and offers insight into its practical application: “Because a standby is independent, the enforceability of an issuer’s obligations under a standby does not depend on:

      i. the issuer’s right or ability to obtain reimbursement from the applicant;

      ii. the beneficiary’s right to obtain payment from the applicant;

      iii. a reference in the standby to any reimbursement agreement or underlying transaction; or

      iv. the issuer’s knowledge of performance or breach of any reimbursement agreement or underlying transaction.”

Additionally, ISP98 Rule 1.07 provides:

“An issuer’s obligations toward the beneficiary are not affected by the issuer’s rights and obligations toward the applicant under any applicable agreement, practice, or law.”

THE DEVIL IS IN THE DETAILS!

“Documentary” means that the bank’s decision to honor is based on a determination as to whether the required document was presented, not whether the event actually occurred.  UCP 500 Article 4 states that in “credit operations, banks deal in documents, not in goods, services or other performances to which they may relate.”  UCP further states that banks are not responsible for the “form, genuineness, sufficiency, of the documents….” In addition, entwined throughout UCP is the requirement for presentation of “specified documents”.  Finally, non-documentary conditions and documents not called for in the credit are to be disregarded.

Consistent with UCP, Revised UCC Article 5 bases the validity, operation, and enforceability of the undertaking on the presentation of documents.  So central is the presentation of required documents to the letter of credit that, in addition to the admonitions in 5-102 commentary, the 5-108 commentary states explicitly that:

“Where the non-documentary conditions are central and fundamental to the issuer’s obligation (as for example a condition that would require the issuer to determine in fact whether the beneficiary had performed the underlying contract or whether the applicant had defaulted) their inclusion may remove the undertaking from the scope of Article 5 entirely.”

In the OCC’s safety and soundness guidelines, the bank is not to determine “a matter of fact or law at issue between the applicant and beneficiary.”  Under such letters of credit or other independent undertakings, the bank’s obligation to honor depends upon the presentation of specified documents and not upon non-documentary conditions or resolution of questions of fact or law at issue between the account party and the beneficiary.

The ISP simply states that the documentary nature of the standby “depends on the presentation of documents and an examination of required documents on their face.”

These two defining principles of this idiosyncratic form of engagement are clearly enunciated and repeated in UCP, UCC, UN Convention, the OCC Regulations and now the ISP.

The easiest way to insure that the subject undertaking meets these requirements is to make the bank’s undertaking subject to a set of rules which incorporate these principles.

CAUTIONS

There are other nuances of these new rules and regulations that recognize and give validity to practice.  Based on the rule-maker, there are obvious biases.  For example the U.S. Commercial Code legislates formalities, rights, responsibilities, and remedies.  The Comptroller’s promulgation focuses on the management of risk, while ISP98 reflects the better practice of the better practitioners.  Collectively, they allow issuers to intelligently and selectively respond to market demands for flexible undertakings within certain parameters.   While the standby has exemplified one of the more creative and innovative sides of banking, there have been certain grounds upon which even the most courageous standby practitioners have treaded lightly.  Obligations without stated expiry dates, amounts payable based on fluctuations in public indices and undertakings conditioned on actions involving the bank itself have always presented unique challenges for the banker trying to accommodate a customer and satisfy a market need while not violating any regulation or law.

Those bankers willing to research the rules and do the homework can find support and direction to issue standbys or guarantees (however named or described) without expiry dates, whether payable in dollars, dinars (or other currency), documents or other items of value.  For those willing to push the envelope further, the amount available may even fluctuate based on market changes, such as LIBOR, PLATTS, or other.  The availability of the obligation itself, may be conditioned on determination of events such as receipt or sending of funds or similar operations which can be determined within the bank’s “sphere of control.”

CONCLUSION

Ask that same question today: “Can U.S. banks issue guarantees?” and you will get a different answer. “What is a guarantee?” “Can you define guarantee?”  If you define guarantee as an independent undertaking to pay against documents, then developments by regulators and lawmakers would now lead us to answer: “Yes, U.S. banks can and do issue guarantees!”