The authors, respectively chairmen of the URDG and the URDG drafting Guarantees and is the author of “Guide to the ICC Uniform Rules for. URDG sets out the liabilities and responsibilities of the parties, the nature of a demand, the expiry circumstances and the governing law jurisdiction for the. This is a more precise and more comprehensive than the URDG they replaced. ICC publication (URDG N ) resolved all unsolved issues (for example.
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The URDG are the Uniform Rules for Demand Guarantees. It is nearly 30 years since the ICC first became interested in the use of bank demand. URDG The URDG are the Uniform Rules for Demand Guarantees. The new ICC Uniform Ru/es for Demand Guarantees (ICC. I have been asked to comment on the ICC's Uniform Rules for Demand Guarantees (ICC Publication no. ). (the "URDG" or "Rules") from the point of view of.
It became effective on July 1, Clear, precise and comprehensive new rules aim to maintain legal risk control through the high level of certainty and predictability that they foster. The interest of financial stability of business entities and the desire to quickly collect receivables need a legal instrument for security payments which provide safety to business partners to the fullest extent and will minimize the effect of risk factors. From the number of these instruments, the bank guarantee is the most important security instrument for contemporary circulation of commodities in the world. In this work, the object and purpose of the study is to analyze the legal aspects and results when using the international banking guarantees and are based on the theoretical methodology of scientific research. Keywords: Uniform Rules for Demand Guarantees URDG , demand guarantees, bank guarantees, beneficiary, applicant Introduction: The bank guarantee is the financial instrument and gives an opportunity to the party of the agreement to be sure in getting due amount of money in cases when the other party of the agreement fails or does not pay the amount determined by the agreement. As it is shown by business practice, even an agreement that is made without any legal defects is not the best protection mechanism when contracting party fails to fulfill obligations of payment determined by the agreement.
The first, - ensured contractual obligations of guarantees, and the second - regulated Demand guarantees. This simplified the procedures of issue of international guarantees.
The parties also understood the main essence of a guarantee-preservation of a fair balance between the counteragents. Publication N and N assumed the same function for Publication N  which also contained written samples of bank guarantee, but the sample of counter agent was also added. Publication N  failed to gain relevant support in trade, at the same time, publication N  was very successful; in , it coped well with the set objective.
It contained 28 articles and was very innovatory. Uniform Rules for Demand Guarantees URDG comprise 35 articles; the new URDG also comes with embedded model guarantee and counter-guarantee forms and a set of optional clauses in a ready-to-use package.
This is a more precise and more comprehensive than the URDG they replaced. It united all kinds of guarantees and was collectively named Demand guarantee, because guarantees of all kinds had equal results: the guarantor had to pay the amount indicated in the guarantee according to the demand of beneficiary.
URDG N introduced into already effective guarantees the issue of change of currency, introduced the mechanisms of termination of guarantees, unless the guarantee contained the date of the expiration of its validity and the phenomena which would determine the expiration of the validity of the guarantee .
According to the opinion of ICC commission, this must resolve the issue of the so- called lifetime guarantees which put the applicants in an uncertain position and caused problems to the banks according to the requirements related to the capital. It is also important that URDG N contains the packages of samples of written formats of guarantees and counter guarantees without separate publications .
The essence of the guarantee: The second Article of URDG defines the guarantee in the following way: Demand guarantee or guarantee means any signed undertaking, however, named or described, providing for payment on presentation of a complying demand . The simplest legal-financial scheme with the application of guarantee is: the applicant and beneficiary are the parties to the agreement; at the same time, the applicant is the customer of the bank. In order to resolve the problem, the applicant applies to the bank asking to act as its guarantor before the beneficiary.
The guarantee will say that unless the applicant pays to the beneficiary the amount, stipulated by the agreement, this amount will be repaid to the beneficiary by the Bank guarantor. As a result of such relation, the beneficiary is sure to receive amount from the guarantor and so sends the goods to the applicant.
The applicant is sure first, to receive goods and then make payment. He pays the bank commission, but it is cheaper than if he took credit for this advance payment.
The bank is satisfied that it did not disburse credit, but it received commission for disbursement of the guarantee. Finally, the applicant and the beneficiary fulfilled the contractual obligations and the beneficiary returned the bank guarantee to the bank because the latter did not need it any more.
This scheme is complicated if companies of several countries and several banks are involved in it, but the essence of such bank guarantee will not change. Until the recent times, the scientist lawyers agree that the concept guarantees terminologically and conceptually were vague and unclear and actually, the unified definition of guarantees did not exist , .
The reason of this is the circumstance that the civil law of different countries is founded on different concepts and different terms are used for guarantees guarantee, standby letter of credit, performance bond. According to the opinion of several scientists, the circumstances became even vaguer after taking over the Anglo-American terminology of continental law and bank practice. URDG N made a step towards settlement of the problem and future practice shows how well the definition offered by him works.
A reference in the guarantee to the underlying relationship for the purpose of identifying it does not change the independent nature of the guarantee. How should this extract be evaluated legally? To our opinion this very extract defines the independent legal nature of the guarantee and means the following: if the guarantee ensures payment of monetary obligations, undertaken by the agreement, which were made between the customer and the counteragent of the guarantor, and then it appeared that this transaction is void, this shall neither suspend not terminate the obligation of the guarantor.
The guarantor still remains obliged to pay the amount, indicated in the guarantee if the beneficiary demands the payment. As a rule, the guarantee textually contains an indication on the agreement which it secures, but this indication has only identification function and does not bear any other legal burden.
Their incremental use, backed by the support of ICC, enabled URDG 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.
For that, the ICC members who foresaw the need for a separate set of rules for independent guarantees in the early s and had the leadership and the vision to steer URDG towards successful finalisation and implementation deserve credit.
The need for a change. Over the years, the application of their provisions shed light on the need for various drafting adjustments, clarifications, expansion of scope or corrections of the adopted standard. The ICC Task Force on Guarantees, the standing expert body created by ICC in to monitor international guarantee practice, acted as a consultative body to the Drafting Group that produced five comprehensive drafts during the two-and-a-halfyear revision process.
Each draft was submitted for review and comments to ICC national committees. Over sets of comments were received from a total of 52 different 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. This method ensured that views would be received from a broad cross-sector of concerned parties.
They came into force on 1 July , whereupon a considerable number of demand guarantees and counterguarantees started being issued all over the world subject to the new URDG The percentage of guarantees subject to URDG compared to those subject to URDG , or to no rules at all, is increasing by the day and at a very satisfactory rate.
The new URDG do not merely update URDG ; 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. This Guide.
Users and issuers of demand guarantees and counter-guarantees, as well as their advisers, will find in this Guide an indispensable companion to URDG With the rules and the model forms, this Guide forms the triptych on which a successful guarantee practice can be built. In its pages, we have put the essence of our experience in researching, practising and teaching the law and practice of demand guarantees over a period of twenty years.
However, the demand guarantee is similar to the Standby Letter of Credit, as the payment obligations are alike but differing only in structure. The actual structure would however depend on the complexity and other features of the transaction.
There are many reasons why a Nigerian bank should adopt the URDG in their demand guarantees, some of which are highlighted below: Independence from underlying contracts Article 5 of the URDG expressly provides that the obligations of a guarantor and counter-guarantor is independent of any issues in the underlying contract.
This provision is rather favorable to the banks because guarantor and counter-guarantor banks are not usually parties to such underlying contracts, hence, it is unreasonable to have them entangled in issues emanating from such contracts. Role The URDG limits the guarantor's responsibility and role in the agreement to dealing with,11 and examining presented documents on their facial appearance of conformity only, without any need to verify the authenticity.
The guarantor thus has a discretion on whether or not to accept an instruction to amend a guarantee. Entire Agreement Article 12 of the URDG limits the liability of the guarantor to only the terms contained in the agreement, hence further alienating and protecting the guarantor bank from liabilities emanating from other agreements entered into by the other parties to the contract of which it may or may not even be aware. Demand Article 15 of the URDG provides that where a beneficiary makes a demand on a guarantor, the demand shall be accompanied by the documents specified in the guarantee and also by a supporting statement which indicates in what respect the applicant is in breach of its obligations under the underlying contractual relationship.
This rule undoubtedly stands in favour of the guarantor bank because it provides an opportunity or a basis upon which the guarantor may challenge a demand in court by claiming that an accompanying statement is false. Currency Payment default Article 21 of the URDG ensures that a guarantor bank is not held in default in the event that it is unable to pay the beneficiary in the currency specified in the demand guarantee, due to an impediment beyond its control or because it is illegal under the law of the place for payment, by providing that the guarantor may make payment in the currency of the place for payment, which need not be the same as the place where the presentation was made.
This provision also works in favour of the beneficiary, as it can rest assured that irrespective of unforeseen disruptions, payment can be made in a different currency that is, the currency of the place of payment according to the applicable rate of exchange prevailing there when payment or reimbursement is due. In a country beset by unpredictable currency fluctuations, the ability to pay in a currency other than the currency stipulated in the guarantee must have considerable advantages.
Hopefully, the financier should have in place a Certificate of Capital Importation, which then entitles it to purchase foreign exchange in the official exchange market for remittance offshore.
But if the extension is granted during that time, the demand is deemed to be withdrawn,14 and the guarantee and counter-guarantee will need to be amended to effect this change. In practice, extend or pay requests which result in an extension happen far more frequently than actual payment of the guarantee.
In favour of the guarantor bank, the URDG entitles a guarantor and counter-guarantor to a discretion on whether or not to accept an extend or pay request.