Interpretative Paper on the correct interpretation of the first paragraph of UCP 600 article 35

To provide further clarity, the ICC Banking Commission issued the following interpretative paper linked to the “Guidance paper on the impact of COVID-19 on trade finance transactions subject to ICC rules”.

29 May 2020

The ICC Banking Commission refers to the “Guidance paper on the impact of COVID-19 on trade finance transactions subject to ICC rules” that it released on 6 April 2020 and, in particular, to sections B (iii)-(v) and C (iii)-(v).

That Guidance paper is not an official publication of the ICC Banking Commission. It is a paper that the Banking Commission released in relation to the application of its rules consistent with its tradition of clarifying their proper interpretation and application when it determines that there is a need to do so.

Practitioners globally have generally indicated their agreement to the content of the above sections in the Guidance paper. Nevertheless, some doubts have been raised from a legal perspective as to whether the inability of a bank to transmit or send letters or documents in paper form between a nominated bank, confirming bank and issuing bank, in the manner required by a documentary credit, due to events such as (but not limited to) those experienced during the COVID-19 pandemic, would prevent an application of the principles set out in those sections applying a literal reading of UCP 600 article 35 which, when applicable, qualifies the requirements to forward documents set out in UCP 600 sub-articles 7 (c), 8 (c), 15 (b) and/or 15 (c).

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