Insurance and (apparently) original signature
The recent issue of the LCUpdate from IIBLP (14 October) discuss ICC Opinion TA792, which is part of the bundle of Draft Opinions to be discussed at the meeting in the ICC Banking Commission next week in Vienna.
LCUpdate states that:
Draft Opinion 792 deals with insurance documents marked "original" and that "appear to bear apparently original signatures". The Draft Opinion concludes that "the insurance documents appear to be originals as stated in UCP 600 (Article 17(b)) and ISBP 745 (A27)."
The view has been advanced that ICC Draft Opinion 792 is unsatisfactory because it is incomplete since it does not explain why the documents contain apparently original signatures. Notwithstanding ISBP 745 paragraphs A27 and A35(a), proponents of this view contend that the criteria to apply in deciding if a document bears an apparently original signature, where the credit or the UCP requires the document to be signed, remains unclear.
The relevant ISBP 745 paragraphs reads:
A document bearing an apparently original signature, mark, stamp or label of the issuer will be considered to be an original unless it states that it is a copy. Banks do not determine whether such a signature, mark, stamp or label of the issuer has been applied in a manual or facsimile form and, as such, any document bearing such method of authentication will satisfy the requirements of UCP 600 article 17.
A signature, as referred to in paragraph A31 (a), need not be handwritten. Documents may also be signed with a facsimile signature (for example, a pre-printed or scanned signature), perforated signature, stamp, symbol (for example, a chop) or any mechanical or electronic method of authentication.
I cannot show you the two documents in question. They are however made exclusively in “black on white.” I.e. no colours – but many signatures which in fact is impossible to tell (from the PDF file) if they are added by hand, scanned or copied etc.
So there is no doubt that IIBLP have a valid point. It simply is impossible from the documents being part of the query to tell if they have an “apparently original signature, mark, stamp or label of the issuer.”
This is yet another example showing that the issue or “originality” becomes more and more difficult to handle. In this case you would need to see the document presented – and even with that it might be hard to determine if this is in fact an original ….
In fact the ISBP Drafting Group did anticipate such cases …. and did at one time suggest (as part of 3 options) to add the following paragraph to an ISBP draft: “A document will be considered to be an original unless it states that it is a copy.”
The ICC National Committees did however not choose this text. Instead they chose the text quoted above from paragraph A27. Which I guess is not very helpful in this case.
I am aware that the issue has been raised if it is time to revise the UCP 600. I am not sure I personally think, that this is the right time for that. However the issue of original versus copy documents in documentary credits somehow really need to be addressed – and that ideally in the UCP 600, because the UCP 600 has a totally black and white approach to this issue: A document is either an “original” or it is a “copy.”
The definition of “original” simply should be “broader” more generic – and should be drafted in such a way that it takes in future ways by which documents are made original. Easier said than done – I know.
Fortunately (I guess) both of the insurance documents attached to ICC Opinion TA792 is dated in 2010 …. So I guess the case has an educational nature to it, and the actual cases has long been settled.
In any case – I really look forward to this discussion next week. Can hardly wait in fact.
Take care of each other and the LC.
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