If You Love Somebody Set Them Free
“Human beings, who are almost unique in having the ability to learn from the experience of others, are also remarkable for their apparent disinclination to do so.”
The opening of this blog post is a quote from Douglas Adams. This quote has been puzzling in my brain during the weekend. Of course my angle is the LC instrument – accepting fully that this is not a major concern for Douglas Adams.
As such the LC and I have been close – very close – during more than 20 years. After these 20+ years I am so sad to conclude, that it is the exact (e x a c t) same issues and problems that we struggle with today, that we did when the LC and I had our first date.
Let me offer a few examples:
1: The rate of discrepant presentations is still far far too high. I wonder if it has lowered at all. It seems impossible for beneficiaries to make and present the documents that will guarantee payment. A guarantee for which they have paid dearly.
2: We still discuss what is meant by “negotiation.” I must admit that no one so far have been able to present arguments that I fully understand explaining why we really need negotiation. To me negotiation is a ghost. Some people can see it. Some people cannot. T The people that can see it cannot agree on what it looks like. And surely cannot explain it in any way that others can understand it.
3: Drafts (bills of exchange) are still being called for in LCs. In most cases for no purpose at all (or for the not-convincing argument that “we use to”) – and not at all based on a request from the commercial parties (more on drafts in my previous blog post: “Drafts …. my worst LC nightmare!”)
4: LCs are still filled with downright absurd – impossible to understand – requirements. I cannot count the number of questions that arrive in my mailbox regarding LC clauses that you would need to be psychic to answer in any comprehensive way.
I do not understand this. Simply do not. Have we learned nothing? Are we totally unable to improve the LC instrument? Is the only way out, to change it to something else, something new, something more “modern,” something with a more “fresh” name and reputation … something like the BPO? Have we finally murdered the LC? Is the King finally dead, after having struggled with extremely bad health for far too long – and far too may doctors unable to agree on the diagnosis?
And that is not all: There is another element part of the equation: The LC has a reputation of being very troublesome. It is a niche. Something exotic, that only few nerds (I guess that include me) fully understand.
This reputation makes me sad: Nothing is simpler than the LC. I would rather issue 10 LCs than help my mother when her Windows PC has crashed. THAT is troublesome.
The LC: Simple! A bank issues an LC (which is a guarantee), and the beneficiary presents the documents required by the LC and is paid!
Just try to explain a crashed Windows PC as simple as that!
So what is the problem?
My answer: we love the LC too much! We need to let go. We must set free the LC.
Let me try to explain.
The LC world is overpopulated with people like me who simply LOVE the LC. We can discuss it from here to eternity. And we do. Endlessly. We enjoy the discussions for the sake of the discussions. The argument for the sake of the argument. It seems to me that every argument is “right.” No fixed or right answers. And perhaps the best of all: The complexity! The LC sources are scatters all over: UCP, ISBP, Opinions, Decisions, DOCDEX’s …. And the LC is a not “stand alone” …. so other industries and areas and rules must also be taken into account: the bill of exchange act, the hauge visby rules, Sale of Goods Act, Institute cargo clauses … and of course also the Incoterms. You need to know ALL of this – and apply it smoothly together.
When you think about this, it is not hard to understand why the LC has a reputation of being very troublesome; a niche; something exotic: It is an instrument which purpose is simply to support a payment … but it ends out being very complex – and very abstract. Not a good combination!
So what need to be done? My take on this is that the LC must be re-born in its simplest form, e.g.:
1: Call ONLY for the very necessary documents. AND do whatever possible to avoid drafts!
The LC is grown up – it does not need an additional instrument to function. The LC is a reliable payment instrument, and the obligation given by the bank(s) can easily rely on the LC and the UCP 600 alone.
2: Describe the required documents in simple (and few) words.
For example do NOT say
“Full set marked clean on board ocean bills of lading issued by the carrier in the capacity of a carrier, showing the beneficiary as consignor and the full goods description, trade terms and container number. UCP 600 article 20(c)(ii) and UCP 600 article 14(l) is not applicable, and the wording "however named" is ^Delete^d from articles 19, 20 and 22 of the UCP 600.”
Such requirement is not helpful – rather: it is destructive! Why not say: “Bill of Lading” or perhaps even better: “Non-negotiable sea waybill?”
3: Do not issue LCs available by negotiation. It over complicates things, because of the universal confusion of what it is. Instead issue LC in a simple way, e.g.:
“Available with bank xx by payment” or “available with bank xx by deferred payment.” “Bank xx” can be the issuing bank – or another bank, who may be the confirming bank. In any case: It must be clear 1) with which bank(s) the LC is available, and 2) their roles and obligations. I.e. the beneficiary must be able to understand from the LC when and where (s)he will get paid.
4: And for the applicants and beneficiaries consider the following: The LC is a good and strong payment instrument, but its use requires that you know what you do. The better you understand it, the better the chance that the deal will work well. Consider also, that training customer in LC issues is far from the preferred activity of the LC banks. They want to do the deals. So if you do not get the appropriate help from your bank, demand it – or consider other sources. For example LC consultants. It may cost – yes. But at the end of the day, it may prove that the business case is solid, if the alternative is payment delays, losses and disputes.
If we like the LC instrument, we must set it free. We must relieve it of all our old-fashioned and out-dated views. We must re-invent it in a stronger, better – and above all – simpler form. For the benefit of all the parties to the LC. This is my quest. I hope that you will follow me!
Take care of each other and the LC!
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