تقويض الاستقلال في الإعتماد المستندي (دراسة مقارنة)

Rp- Undermining the Independence of Documentary Credits (A Comparative Study) .pdf

Abstract:
The concept of undermining is based on establishing controls for the absolute independence of documentary credit relationships, clarifying its limits, and the extent to which the realities of international sales and their actual requirements affect this independence. It also examines the scope of its effectiveness in providing the necessary protection for all contracting parties in the documentary credit process without favoritism. It is noted that recently, a modern jurisprudential trend has emerged supporting the concept of undermining and providing legitimate justifications for it, relying on some recent judicial applications that deviate from the independence of documentary credits. This occurs in exceptional cases arising from the practical realities of international trade, and these cases are presented in our study as examples, not as an exhaustive list, as the practical reality of documentary credits may reveal other different situations depending on the circumstances. This necessitates setting limits to this independence, establishing a general rule governing contracts and ensuring fairness for all parties.
The judiciary justifies this position by considering documentary credit an effective banking process for settling international sales contracts. Therefore, its execution requires good faith, preventing anything that could deviate it from its primary purpose and undermine its absolute independence. Consequently, the judiciary suspends the independence of the relationship in certain cases that impede the process.
Conversely, upon reviewing the Uniform Customs and Practice for Documentary Credits (UCP 600) and comparative laws, we observe the absence of any legislative intervention to regulate the suspension of this independence or define its limits and scope. This, in our view, is a deficiency considering the developments in the legal framework governing documentary credits. However, US law stipulates that fraud in documents undermines the independence of a documentary credit. This constitutes an exceptional case where US law permits the suspension of this independence, according to the procedures of the court reviewing the matter. Undermining, in this sense, possesses several key characteristics. Firstly, it is exceptional, not applicable to documentary credit transactions where contractual relationships are established. Secondly, it is relative, aiming to restrict and limit the absolute independence of documentary credits. Undermining this independence enhances the flexibility of the process, enabling it to accommodate practical commercial realities and the various situations that arise from them.
Furthermore, undermining leads to practical applications, as it is not merely a theoretical study but a new approach addressing the aspect of absolute independence in documentary credits and the difficulties that arise from it in practice. Consequently, it has implications that grant the documentary credit process sufficient flexibility to address unforeseen circumstances and mitigate their effects.