A critical assessment of the requirements for documentary compliance in the law of letters of credit
- Authors: Chigerwe, Evelyn
- Date: 2016
- Subjects: Letters of credit , Bills of lading , International trade , Negotiable instruments , Warehouse receipts
- Language: English
- Type: Masters (Thesis)
- Identifier: http://ujcontent.uj.ac.za8080/10210/370793 , http://hdl.handle.net/10210/87749 , uj:19621
- Description: Abstract: Please refer to full text to view abstract , LL.M. (Banking Law)
- Full Text:
A critical assessment of the requirements for documentary compliance in the law of letters of credit
- Authors: Chigerwe, Evelyn
- Date: 2016
- Subjects: Letters of credit , Bills of lading , International trade , Negotiable instruments , Warehouse receipts
- Language: English
- Type: Masters (Thesis)
- Identifier: http://ujcontent.uj.ac.za8080/10210/370793 , http://hdl.handle.net/10210/87749 , uj:19621
- Description: Abstract: Please refer to full text to view abstract , LL.M. (Banking Law)
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A legal analysis of article 16 of the UCP 600
- Authors: Teo, Lorato
- Date: 2016
- Subjects: Documentary credit - Law and legislation , Letters of credit , International trade , International Chamber of Commerce. Uniform customs and practice for documentary credits (2007) , Banks and banking, International
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/237038 , uj:24281
- Description: LL.M. (Banking Law) , Abstract: Please refer to full text to view abstract
- Full Text:
- Authors: Teo, Lorato
- Date: 2016
- Subjects: Documentary credit - Law and legislation , Letters of credit , International trade , International Chamber of Commerce. Uniform customs and practice for documentary credits (2007) , Banks and banking, International
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/237038 , uj:24281
- Description: LL.M. (Banking Law) , Abstract: Please refer to full text to view abstract
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Beyond fraud : a critical analysis of illegality as potential exception to the autonomy principle in the law of demand guarantees and letters of credit
- Authors: Olowolafe, Omotola Afolabi
- Date: 2017
- Subjects: Letters of credit , Documentary credit - Law and legislation , Fraud
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236910 , uj:24263
- Description: LL.M. (Banking Law) , Abstract: The debates and questions surrounding illegality as an exception to the seemingly immaculate autonomy doctrine of documentary letters of credit and demand guarantees are not few. Fraud on the part of the beneficiary of these abstract instruments of payment is the established, and recognized exception in law to this doctrine in most jurisdictions around the globe. However, over the years, legal trends have suggested that fraud might not necessarily and totally be able to cover the many loopholes that this doctrine has been or might be exposed to. For this reason, amongst others, different exceptions have cropped up in many jurisdictions around the world. The illegality exception is just one of the few alternatives to the entrenched fraud exception. The illegality exception is not without its troubles. Since it has not really been entrenched in most jurisdictions, including here in South Africa, many questions as well as debates regarding its potency in law and the rules governing it, is understandably on the lips of many. For instance, some have argued that the illegality exception is more beneficial in the view of a larger public interest than the fraud exception. In the Mahonia case, an English case, the court remarked that “if a beneficiary should as a matter of public policy (ex turpi causa) be precluded from utilising a letter of credit to benefit from his own fraud, it is hard to see why he should be permitted to use the courts to enforce part of an underlying transaction which would have been unenforceable on the grounds of illegality if no letters of credit had been involved, however serious the illegality involved.” On the other hand in the well-known United City Merchant case the court was reluctant to admit to the possibility of an illegality exception when it had the opportunity to do so. It simply remarked that instead of “illegal” such contracts will simply be “unenforceable”. The logical question therefore is: unenforceable based on which grounds? The court in the Group Josi case dealt with the position the United City Merchant case had earlier adopted. Staughton J in Group Josi accepted that illegality is a separate defence from the fraud but fell just short of settling this position in law. Central to this paper, therefore, is the critical discussion and evaluation of the different sides to the debates surrounding the recognition, scope of application as well as the effects of the illegality exception. The author will look at different cases from a number of jurisdictions, but basically focusing on the English law, in his critical analysis of this exception. In addition, the opinions and positions of academic writers and experts in the field of letters of credit and...
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- Authors: Olowolafe, Omotola Afolabi
- Date: 2017
- Subjects: Letters of credit , Documentary credit - Law and legislation , Fraud
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236910 , uj:24263
- Description: LL.M. (Banking Law) , Abstract: The debates and questions surrounding illegality as an exception to the seemingly immaculate autonomy doctrine of documentary letters of credit and demand guarantees are not few. Fraud on the part of the beneficiary of these abstract instruments of payment is the established, and recognized exception in law to this doctrine in most jurisdictions around the globe. However, over the years, legal trends have suggested that fraud might not necessarily and totally be able to cover the many loopholes that this doctrine has been or might be exposed to. For this reason, amongst others, different exceptions have cropped up in many jurisdictions around the world. The illegality exception is just one of the few alternatives to the entrenched fraud exception. The illegality exception is not without its troubles. Since it has not really been entrenched in most jurisdictions, including here in South Africa, many questions as well as debates regarding its potency in law and the rules governing it, is understandably on the lips of many. For instance, some have argued that the illegality exception is more beneficial in the view of a larger public interest than the fraud exception. In the Mahonia case, an English case, the court remarked that “if a beneficiary should as a matter of public policy (ex turpi causa) be precluded from utilising a letter of credit to benefit from his own fraud, it is hard to see why he should be permitted to use the courts to enforce part of an underlying transaction which would have been unenforceable on the grounds of illegality if no letters of credit had been involved, however serious the illegality involved.” On the other hand in the well-known United City Merchant case the court was reluctant to admit to the possibility of an illegality exception when it had the opportunity to do so. It simply remarked that instead of “illegal” such contracts will simply be “unenforceable”. The logical question therefore is: unenforceable based on which grounds? The court in the Group Josi case dealt with the position the United City Merchant case had earlier adopted. Staughton J in Group Josi accepted that illegality is a separate defence from the fraud but fell just short of settling this position in law. Central to this paper, therefore, is the critical discussion and evaluation of the different sides to the debates surrounding the recognition, scope of application as well as the effects of the illegality exception. The author will look at different cases from a number of jurisdictions, but basically focusing on the English law, in his critical analysis of this exception. In addition, the opinions and positions of academic writers and experts in the field of letters of credit and...
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Deficiencies in the law of letters of credit : inconsistent approaches to the doctrine of strict compliance and the fraud exception to the independence principle
- Authors: Chimeramombe, Kudakwashe
- Date: 2017
- Subjects: Conflict of laws - Letters of credit , Letters of credit , Fraud
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236816 , uj:24251
- Description: LL.M. (Banking Law) , Abstract: The aim of this dissertation is to investigate the inconsistencies surrounding the application of the doctrine of strict compliance and the fundamental impact of the fraud exception in letters of credit transactions. It attempts to find out what could reduce the inconsistent interpretations of the doctrine of strict compliance focusing on discrepancies in letters of credit in case law and other determinations made by quasi – judicial bodies. Furthermore, the aim is to enhance the stability of letters of credit in international trade. The case law concerning the doctrine of strict compliance and exception to fraud over the past decade has been somewhat inconsistent owing to varied interpretation of the doctrine. Furthermore, the dissertation investigates whether there is a need to improve the rules regarding of the Uniform Customs and Practice for Documentary Credits (UCP),1 and the International Standard Banking Practice (ISBP) concerning discrepancies in the document,2 given the fact that these two instruments act merely as guidelines which parties may adopt or modify in their contracts. This second part of this dissertation aims to examine the extent of the application of the fraud exception to the independence principle that governs the letters of credit, considering the South African position compared against the approach in England in an overall attempt at determining whether the approach of the South African courts in this regard can be improved. Certain questions such as when is the fraud exception evoked, or which party must be in default to trigger the application of the fraud exception will be addressed in this dissertation.
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- Authors: Chimeramombe, Kudakwashe
- Date: 2017
- Subjects: Conflict of laws - Letters of credit , Letters of credit , Fraud
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236816 , uj:24251
- Description: LL.M. (Banking Law) , Abstract: The aim of this dissertation is to investigate the inconsistencies surrounding the application of the doctrine of strict compliance and the fundamental impact of the fraud exception in letters of credit transactions. It attempts to find out what could reduce the inconsistent interpretations of the doctrine of strict compliance focusing on discrepancies in letters of credit in case law and other determinations made by quasi – judicial bodies. Furthermore, the aim is to enhance the stability of letters of credit in international trade. The case law concerning the doctrine of strict compliance and exception to fraud over the past decade has been somewhat inconsistent owing to varied interpretation of the doctrine. Furthermore, the dissertation investigates whether there is a need to improve the rules regarding of the Uniform Customs and Practice for Documentary Credits (UCP),1 and the International Standard Banking Practice (ISBP) concerning discrepancies in the document,2 given the fact that these two instruments act merely as guidelines which parties may adopt or modify in their contracts. This second part of this dissertation aims to examine the extent of the application of the fraud exception to the independence principle that governs the letters of credit, considering the South African position compared against the approach in England in an overall attempt at determining whether the approach of the South African courts in this regard can be improved. Certain questions such as when is the fraud exception evoked, or which party must be in default to trigger the application of the fraud exception will be addressed in this dissertation.
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Erosion of the independence principle in letters of credit : lessons from precedent
- Authors: Tsotetsi, Tshepang
- Date: 2018
- Subjects: Letters of credit , Conflict of laws - Letters of credit , Conflict of laws - Contracts
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/270704 , uj:28779
- Description: LL.M. (Commercial Law) , Abstract: Courts globally have grappled with the notion of recognising exceptions to the independence principle. The trickling effect of recognising exceptions to the independence principle is that it results in the erosion of the independence principle. Currently there exists scattered authority on the exceptions which may be used to interdict or block payment under a letter of credit. Consequently, it is only in those jurisdictions that acknowledge and accept nullity, illegality or fraud into their legal system that the exception(s) becomes applicable. Circumvention of the independence principle leads to its corrosion, therefore the trust, certainty and security of letters of credit is compromised. This view is supported by the fact that where the security, certainty and trust of letters is rattled, traders will not want to trade internationally for fear of not being paid as a result of the employment of either one of the exceptions. This brings back the risks faced by the buyer, seller and financier into light, which is the chief purpose that the independence principle aims to overcome. In light of this, the aim of this dissertation is to consider the emergence of the exceptions (fraud, illegality and nullity) through the lens of case law. Moreover, to determine how the independence principle has been eroded by acknowledgement of these exceptions. Furthermore, it touches on the implications of recognising exceptions to the independence principle. However before delving into this analysis due consideration will be given to letters of credit, along with the rationale behind their employment, purpose and role in international trade. Furthermore, examining the two principles underlying letters of credit, namely the independence principle and the doctrine of strict compliance.
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- Authors: Tsotetsi, Tshepang
- Date: 2018
- Subjects: Letters of credit , Conflict of laws - Letters of credit , Conflict of laws - Contracts
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/270704 , uj:28779
- Description: LL.M. (Commercial Law) , Abstract: Courts globally have grappled with the notion of recognising exceptions to the independence principle. The trickling effect of recognising exceptions to the independence principle is that it results in the erosion of the independence principle. Currently there exists scattered authority on the exceptions which may be used to interdict or block payment under a letter of credit. Consequently, it is only in those jurisdictions that acknowledge and accept nullity, illegality or fraud into their legal system that the exception(s) becomes applicable. Circumvention of the independence principle leads to its corrosion, therefore the trust, certainty and security of letters of credit is compromised. This view is supported by the fact that where the security, certainty and trust of letters is rattled, traders will not want to trade internationally for fear of not being paid as a result of the employment of either one of the exceptions. This brings back the risks faced by the buyer, seller and financier into light, which is the chief purpose that the independence principle aims to overcome. In light of this, the aim of this dissertation is to consider the emergence of the exceptions (fraud, illegality and nullity) through the lens of case law. Moreover, to determine how the independence principle has been eroded by acknowledgement of these exceptions. Furthermore, it touches on the implications of recognising exceptions to the independence principle. However before delving into this analysis due consideration will be given to letters of credit, along with the rationale behind their employment, purpose and role in international trade. Furthermore, examining the two principles underlying letters of credit, namely the independence principle and the doctrine of strict compliance.
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Nullity as an exception to independence in the law of letters of credit
- Authors: Mayat, Muhammed Ahmed
- Date: 2016
- Subjects: Letters of credit , Documentary credit - Law and legislation , International Chamber of Commerce. Uniform customs and practice for documentary credits (2007)
- Language: English
- Type: Masters (Thesis)
- Identifier: http://ujcontent.uj.ac.za8080/10210/366058 , http://hdl.handle.net/10210/236421 , uj:24202
- Description: LL.M. (Banking Law) , Abstract: Please refer to full text to view abstract
- Full Text:
- Authors: Mayat, Muhammed Ahmed
- Date: 2016
- Subjects: Letters of credit , Documentary credit - Law and legislation , International Chamber of Commerce. Uniform customs and practice for documentary credits (2007)
- Language: English
- Type: Masters (Thesis)
- Identifier: http://ujcontent.uj.ac.za8080/10210/366058 , http://hdl.handle.net/10210/236421 , uj:24202
- Description: LL.M. (Banking Law) , Abstract: Please refer to full text to view abstract
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The conflict of laws in respect of documentary letters of credit in international trade financing
- Authors: Fredericks, Eesa Allie
- Date: 2009-01-08T13:06:12Z
- Subjects: Conflict of laws , Letters of credit
- Type: Thesis
- Identifier: uj:14764 , http://hdl.handle.net/10210/1843
- Description: LL.M. , The objective of this study is to identify the legal systems that should be applied in terms of South African private international law to the different contractual relationships in respect of a documentary letter of credit. In South Africa no legislation or (binding) case law in point exists. A comparative study is therefore made of the relevant legal rules and principles in the following countries: the United Kingdom; Germany; the Netherlands; Canada; Australia; and the United States of America. It is submitted that, in the absence of either an express or a tacit choice of a legal system by the parties, the proper law of a documentary letter of credit transaction in South African private international law should be – 1) in respect of the contractual relationship between the applicant and the issuing bank: the law of the country where the issuing bank is situated; 2) in respect of the contractual relationship between the issuing bank and the correspondent bank (whether confirming or merely advising): the law of the country where the correspondent bank is situated; 3) in respect of the contractual relationship between the confirming bank and the beneficiary: the law of the country where the confirming bank is situated; 4) in respect of the contractual relationship between the issuing bank and the beneficiary – a) where a correspondent bank (whether confirming or merely advising) is involved: the law of the country where the correspondent bank is situated; b) where no correspondent bank is involved: the law of the country where the issuing bank is situated.
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- Authors: Fredericks, Eesa Allie
- Date: 2009-01-08T13:06:12Z
- Subjects: Conflict of laws , Letters of credit
- Type: Thesis
- Identifier: uj:14764 , http://hdl.handle.net/10210/1843
- Description: LL.M. , The objective of this study is to identify the legal systems that should be applied in terms of South African private international law to the different contractual relationships in respect of a documentary letter of credit. In South Africa no legislation or (binding) case law in point exists. A comparative study is therefore made of the relevant legal rules and principles in the following countries: the United Kingdom; Germany; the Netherlands; Canada; Australia; and the United States of America. It is submitted that, in the absence of either an express or a tacit choice of a legal system by the parties, the proper law of a documentary letter of credit transaction in South African private international law should be – 1) in respect of the contractual relationship between the applicant and the issuing bank: the law of the country where the issuing bank is situated; 2) in respect of the contractual relationship between the issuing bank and the correspondent bank (whether confirming or merely advising): the law of the country where the correspondent bank is situated; 3) in respect of the contractual relationship between the confirming bank and the beneficiary: the law of the country where the confirming bank is situated; 4) in respect of the contractual relationship between the issuing bank and the beneficiary – a) where a correspondent bank (whether confirming or merely advising) is involved: the law of the country where the correspondent bank is situated; b) where no correspondent bank is involved: the law of the country where the issuing bank is situated.
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