Comments on ICC DOCDEX Rules
Based on Draft of 1 Feb 1996

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21 March, 1996

Mr. Winfried Holzwarth, Counsel
Head of Legal Department, Deutsche Bank AG
Frankfurt,
Germany


Dear Mr. Holzwarth,

ICC Documentary Credit Dispute Expertise Rules

We have contributed to the drafting of the ICC Banking Rules URC 522 and URR 525 and are actively involved in other ICC activities such as CCB, IMB under Mr. Eric Ellen.

We received this week from Mr. Carlos Velez-Rodriguez a copy of the ICC Documentary Credit Dispute Expertise Rules, draft dated 01.02.1996, and would like to feed back our comments as follows:

Article 1.2 First line

To add "independent and" in front of "...impartial dispute resolution service...".

According to the Code of Ethics of the Academy of Experts, London, of which I am a Practising Member, an Expert should always act in accordance with the two "i"s, namely being "i"ndependent (no conflict of interests with the parties) and "i"mpartial (a duty to the Tribunal or to the Court to tell the whole truth).

This echoes with the word "independence" in the fifth line of Article 5.1 of these Rules.

Article 6.3 Second line

Add "and documents" after "...have received all information..."

Because "information" may not necessarily mean "documents".

The UCP 500 Article 4 stipulates that "In Credit operations all parties concerned deal with documents, and not with goods, services and/or other performances to which the documents may relate."

Experts have to adhere to the international standard banking practice in examination of the documents to decide whether or not the documents are discrepant. That means they have to make their decisions solely based on the face of the documents, particularly when the ADR is to be performed in "documents only" format, which is most popular in maritime arbitration. Hence the key word "documents" is too important to be missed.

Article 7.3.3 First line

Add "The Advocate or" in front of "...any other person designated..."

Because the Rules have borrowed the term "Respondent" from arbitration, they can also borrow another term "Advocate" from it. The term "Initiator" is different from the term "Claimant" in arbitration and hence this can differentiate ICC Documentary Credit Dispute Resolution from ICC Arbitration to avoid the sensitivities.

Article 10.2 Last line

Add "without delay" after "...by other expeditious means..."

This is to echo with Article 7.2 and 7.3 of these Rules, where the term "without delay" has been incorporated. This makes the meaning of "written" or "in writing" more clear, adding also the time element to it.

It also echoes with the UCP 500 Article 14 (d) (i) stipulating the duty of the Issuing bank and the Confirming Bank to give notification of rejection of documents "without delay".

Article 6.3 (twenty days)
Article 7.5 (75 days)
Article 9.1.3 (70 days)

"Twenty days" in Article 6.3 should be expressed numerically as "20 days" to make it consistent with "75 days" in Article 7.5 and "70 days" in Article 9.1.3.

"Days" should be better expressed as "running days" or "consecutive days" to avoid the confusion of whether "days" means "working days" or "consecutive days".

By "days" I believe the Drafting Committee means "consecutive days" to avoid the argument of:

  1. Whether Saturday is a full day or a half day, and

  2. Definition of the working day varies from

    1. The place(s) of the three individual Experts who may be working in different countries

    2. The Head Office of the ICC Banking Commission.

Kindly feed back the opinions from the Drafting Committee and put our name in your mailing list for distribution of other information concerning the ICC Documentary Credit Dispute Resolution Service, particularly the approved Rules.

I am a member of the Editorial Committee of the ICC Documentary Credit Insight, a Practising Member of the Academy of Experts (Letter of Credit) of London and an Associate of the Chartered Institute of Arbitration. I have great interest to participate in the ICC Documentary Credit Dispute Resolution as an Expert. In fact we have been performing these duties in Hong Kong, Macau and China since 1993 and have gained some experience in this area of service. I hope that you can consider my proposal favourably.

Yours faithfully,
T. O. LEE CONSULTANTS LTD.


T. O. Lee
Managing Director

C.C. Mr. Carlos Velez-Rodriguez

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