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Comments On |
Mr. Gary Collyer
Technical Adviser
ICC Commission on Banking Technique & Practice
18 January 1999
Dear Gary,Further Response to ICC Document 470/834 on "Original" Documents
It is from Mr Gisele Ziaja, the interim secretary to Ron Katz of ICC Paris, that I come to know that you have left the Midland Bank and joint the Citibank in London. Please accept my heartiest congratulations! Would you please let me have your new name card for my record?
To follow up my response to ICC Document 470/834 on "original" documents submitted to ICC (copy attached), I wish to suggest to you that "reprographic" should not include "printing" as far as UCP 500 sub Article 20 (b) is concerned. Otherwise documents printed by laser printer, which is so common now, using corporate letter heads, or filling pre-printed forms with data or information using a computer and printed out by a laser printer, may all be deemed as copies.
If we go back to 1979, we had a system called "Aligned Export Documents System" promoted by the Trade Facilitation Committees in many countries. All necessary details of the L/C transaction is typed on a "master document" (the "master"). With a copier, using different masks placed on top of the "master", blocking unwanted details from the "master", allowing wanted details to go through square holes of the masks, different documents (invoice, packing list, B/L, beneficiary's certificate) can be made from the same "master", using a copier to print out the required documents. This system is recognized and promoted by the UN Working Party on Facilitation of International Trade Procedures, UNCTAD, UNCITRAL, GATT, ISO, EEC, SITPRO, ICC, FIATA, IMCO, IATA, etc. At that time, we did not have to mark such documents made out with a copier as "original". Now, exporters are using PC software instead of paper card board "master" and masks. The principle is the same. Why should we suddenly have to change our rules? Of course, if we are talking about documents made out wholly (using blank sheets of paper rather than using corporate letter heads or pre-printed forms, such as "Form A") and exclusively (either by a laser printer or a copier without any signature or any form of authentication) by computerized or reprographic system (as in the "Glencore" case) it is a different thing. Then UCP 500 sub Article 20 (b) applies.
If the "Glencore" case is also applicable to documents made with corporate letter heads or by filling out pre-printed forms such as "Form A", this would seriously change the trade customs and practice of exporters. Like many other L/C experts, bankers, lawyers and traders I know, I also object the "Glencore" case judicial decision because it does not respect or match the trade customs and practice. In fact it re-creates it. One of the cornerstone legal principle is that law should follow practice. The law report of another UK case on "original" documents, Kredietbank Antwerp v. Midland bank Plc, Karaganda Ltd. v. Midland Bank Plc and Another published on October 31, 1997, does not recognize, or otherwise being bound by, the judicial decision of the "Glencore" case. A copy of the law report of this case is attached just to ensure you would not miss it.
We have a lot of such unpopular judicial decisions in the past about B/L, putting rigid, mechanical and inappropriate legal principles on top of trade customs and practice, such as the Albarzero, the Aliakmon, the Aramis, the Ardennes, Brandt v. Liverpool, the Delfini, Grant v. Norway and Sewell v. Burdick. In revising the UK Carriage of Goods by Sea Act (COGSA) of 1992, all these judicial decisions no longer hold. These inappropriate legal principles are made not applicable to B/L in the new COGSA. Hence we should not make the same mistake twice. I can anticipate that the "Glencore" case decision would be ultimately rectified. And ICC should take the lead, guided by the bitter experience in COGSA.
Wishing You A Happy New Year of 1999!
Yours sincerely,
T. O. Lee Consultants Ltd.T. O. Lee
Managing Director
This document is the 2nd episode of T.O. Lee's response to ICC Document 470/834
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