URDG758中英对照.docx

1、URDG758中英对照URDG 758 The URDG 758 are the Uniform Rules for Demand Guarantees - effective 01 July 2010. Foreword This revision of ICCs Uniform Rules for Demand Guarantees (URDG) is the first since the rules were developed by ICC in 1991. The original rules, URDG 458, gained broad international accept

2、ance in recent years following their incorporation by the World Bank in its guarantee forms and their endorsement by UNCITRAL and leading industry associations, such as FIDIC. This first revision of the rules was meticulously prepared over a period of two and a half years, and is the result of a col

3、lective effort by a number of ICC constituent groups. It was developed as a joint project by two ICC commissions - the Banking Commission and the Commission on Commercial Law and Practice - therefore taking into account the legitimate expectations of all relevant sectors. ICC national committees con

4、tributed substantially to the final product: some 52 national committees submitted several hundred pages of valuable suggestions on successive drafts, a number of which were incorporated into the final text. The ICC Task Force on Guarantees, which consisted of 40 members from 26 countries, reviewed

5、the various drafts and added their own suggestions. The URDG Drafting Group, ably chaired by Dr Georges Affaki, met on a number of occasions, carefully reviewed all comments submitted by national committees and the Task Force and developed the final draft. This collective effort has borne fruit; it

6、has produced rules that reflect a broad consensus among bankers, users and all members of the guarantee community. In fact, the present revision of the URDG does not merely update the existing rules. It is the result of an ambitious project to create a new set of rules for the twenty-first century t

7、hat is clearer, more precise and more comprehensive. As such, URDG 758 is destined to become the standard text for demand guarantees worldwide. Jean Rozwadowski Secretary General International Chamber of Commerce January 2010 Introduction The new URDG 758 succeed URDG 458. Over 17 years of practice

8、(1992 - 2009), URDG 458 proved to be both successful and reliable. They were used by banks and businesses across continents and industry sectors. URDG 458 were endorsed by international organizations, multilateral financial institutions, bank regulators, lawmakers and professional federations. In co

9、ntrast to the failed Uniform Rules for Contract Guarantees (URCG 325), URDG 458 reflected the reality of the international demand guarantee market and struck the most reasonable balance between the interests of all the parties involved. By choosing to instruct a guarantor to issue a demand guarantee

10、 subject to URDG, applicants renounced their ability to obstruct payment for reasons derived from their relationship with the beneficiary. In turn, beneficiaries were expected to state in general terms - but not to justify, establish or prove - the nature of the applicants breach in the performance

11、of the underlying relationship. Finally, because a demand guarantee is an independent undertaking, guarantors were assured that their commitment was subject to its own terms. They were insulated from the performance contingencies of the underlying relationship. Their incremental use, backed by the s

12、upport of ICC, enabled URDG 458 to make a critical contribution towards levelling the playing field among demand guarantee issuers and users regardless of the legal, economic or social system in which they operate. Yet, URDG 458 formed the first attempt by ICC to codify independent guarantee practic

13、e. Over the years, the application of their provisions shed light on the need for drafting adjustments, clarifications, expansion of scope or clear corrections of the adopted standard. Views reported to the ICC Task Force on Guarantees from URDG users worldwide provided the necessary material to lau

14、nch a revision of URDG 458 that both the lapse of time and the evolution of practice made necessary. The revision was launched in 2007 and was conducted under the aegis of both the ICC Banking Commission and the Commission on Commercial Law and Practice (CLP). The ICC Task Force on Guarantees, the s

15、tanding expert body created by ICC in 2003 to monitor international guarantee practice, acted as a consultative body to a Drafting Group that produced five comprehensive drafts during the two and a half year revision process. Each draft was submitted for review and comments to ICC national committee

16、s. Over 600 sets of comments were received from a total of 52 countries and were thoroughly examined. These comments were instrumental in shaping the new rules. Regular progress reports were presented to meetings of each of the ICC commissions considering the rules and were comprehensively debated.

17、This method ensured that the revision takes into account views received from a broad cross-sector of concerned parties. The resulting URDG 758 were adopted by the ICC Executive Board on 3 December 2009, following endorsement by the members of the two sponsoring commissions. They will come into force

18、 on July 1, 2010. The new rules apply to any demand guarantee or counter-guarantee where incorporated by reference in the text. They can also apply as trade usage or by implication from a consistent course of dealing between the parties to the demand guarantee or counter-guarantee where so provided

19、by the applicable law. The new URDG 758 do not merely update URDG 458; they are the result of an ambitious process that seeks to bring a new set of rules for demand guarantees into the 21st century, rules that are clearer, more precise and more comprehensive. Clearer URDG. The new URDG 758 aim for c

20、larity. They adopt the drafting style of ICCs universally accepted Uniform Rules for Documentary Credits (UCP 600) by bringing together the definitions of terms in one article. They also bring a much needed clarification of the process according to which a presentation will be checked for conformity

21、. More precise URDG. A number of the standards contained in URDG 458 left a margin for interpretation that varied according to the particular facts of the case. This was particularly true for the terms reasonable time and reasonable care. The new URDG have excluded all imprecise standards with an ai

22、m to foster certainty and predictability. Examples are time durations for the examination of a demand, the extension of a guarantee in the case of force majeure, and the suspension of the guarantee in the case of an extend or pay demand. More comprehensive URDG. Important practices were left out of

23、URDG 458. This was particularly the case for the advice of a guarantee, amendments, standards for examination of presentations, partial, multiple and incomplete demands, linkage of documents, and transfer of guarantees. In addition, there was only fragmentary treatment of counter-guarantees. What wa

24、s understandable at the time of the first attempt to codify demand guarantee practice can no longer be accepted 17 years later. The new URDG 758 now cover all of these practices and make clear that provisions governing guarantees apply equally to counter-guarantees. Balanced URDG. The new URDG 758 e

25、ndorse and build on the balanced approach that characterized URDG 458. For example: - The beneficiary is entitled to payment upon presentation of a complying demand without the need for the guarantor to seek the applicants approval. The new URDG also correct an unfair situation that would have left

26、the beneficiary without recourse to the guarantee in the case of force majeure if its expiry coincided with the interruption of the guarantors business. - The guarantors independent role is expressed in stronger and clearer terms and, more importantly, it is now expressed in exclusively documentary

27、terms. The new URDG expect the guarantor to act diligently. For instance, a guarantor is expected to reject a non-complying demand within five business days by sending a rejection notice that lists all of the discrepancies; otherwise, the guarantor will be precluded from claiming that the demand is

28、non-complying and will be compelled to pay. Largely accepted in documentary credit practice under the UCP, the preclusion sanction is necessary to discipline unfair practices that work to the detriment of the beneficiary. - The applicants right to be informed of the occurrence of the key stages in t

29、he lifecycle of the guarantee is acknowledged in the new rules. However, this information should not be a prerequisite for payment when a complying demand is presented. Innovative URDG. The new URDG 758 feature a number of innovations dictated by the development of practice and the need to avoid dis

30、putes. An example is the new rule that proposes a substitution of currencies when payment in the currency specified in the guarantee becomes impossible. Another example is the new termination mechanism for guarantees that state neither an expiry date nor an expiry event. This solution is expected to

31、 reduce the number of open-ended guarantees that severely penalize applicants and are incompatible with the banks capital requirements. The Guide. The rationale, preparatory work and interpretation of each article of the new URDG 758 can be found in a separately released Guide to the rules (ICC Publ

32、ication No. 702). The new URDG 758 package. The new rules are accompanied by a model guarantee and counter-guarantee form featured at the end of this publication. They are destined to evolve into an indispensable companion to the new URDG 758 and their users. Experience shows that a comprehensive re

33、ady-to-use package that combines both the rules and model forms is more attractive to users than the previously separate ICC publications Nos. 458 and 503. It should also be conducive to more harmonized a practice. In drafting the new URDG 758 model guarantee form, a unitary approach was preferred to one that would have consis