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:
Quote
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.
Unquote
The
relevant ISBP 745 paragraphs reads:
Paragraph
A27
Quote
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.
Unquote
Paragraph
A35(a)
Quote
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.
Unquote
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.
Best
regards
Kim