Yêu cầu: Mỗi nhóm đọc để trình bày được ngắn học các case tác giả nêu

ra về bất khả kháng

The Force Majeure Rule *By Nguyen Huu Duc and Kim Christensen
A powerful 8.9 magnitude earthquake accompanied by a ten meter tsunami
hit Japan on Friday, 11 March 2011, engulfing many towns along the northern
coast of Japan. As a result of this force majeure event, thousands of businesses
including banks in the affected areas had to close their businesses.
The question is raised as to whether a bank whose business is interrupted
due to a force majeure event can exclude its liability under an LC that expired
during such an interruption of its business.
Or in other words: Is it true or false that a bank that closes its business due to
a force majeure event will not, upon resumption of its business, honour or
negotiate under an LC that expired during such interruption?
Below are three case studies for the purpose of analysing the situation and
answering the question above.
What Does Article 36 say?
Article 36 says: ‘A bank assumes no liability or responsibility for the
consequences arising out of the interruption of its business by Acts of God, riots,
civil commotions, insurrections, wars, acts of terrorism, or by any strikes or
lockouts or any other causes beyond its control. A bank will not, upon resumption
of its business, honour or negotiate under a credit that expired during such
interruption of its business.’
Reading article 36 and assuming that an issuing bank in Japan has to close
its business due to the said earthquake and tsunami, the beneficiary has good
reason to worry that the issuing bank will not, upon resumption of its business,
honour the LC. Similarly, the nominated bank that has honoured or negotiated the
LC has the same worry: that it will not be reimbursed by the issuing bank.
 Case Study I
Bank I (Sendai, Japan) issues a confirmed LC in favour of Ben B (Vietnam).
The LC is available at the counter of Bank C by payment.
Date and place of expiry: 15 March, 2011 in Vietnam.
Bank C adds its confirmation and advises the LC to Ben B.
Bank I closes its business on 11 March 2011.
Ben B effects shipment on 8 March 2011 (two days before the occurrence of
the earthquake and tsunami) and makes a complying presentation to Bank C on 12
March 2011.
Some questions arising from the situation:
(1) Can Bank C refuse to honour the presentation based on article 36 if it
learns that Bank I has closed its business due to the earthquake and tsunami?
(2) Bank C honoured and forwarded the documents to Bank I by DHL
Courier Service, but the documents can not be delivered to Bank I because Bank I
closed its business due to the force majeure event. Can Bank I, upon resumption of
its business, refuse to reimburse Bank C based on article 36?
Analysis and Conclusion Case Study I
(1) The earthquake and tsunami occurred in Japan but the LC was available
with Bank C by payment and the date and place of expiry was in Vietnam. Ben B
made a complying presentation to Bank C, which was open during the force
majeure event. Consequently Ben B must be honoured. Article 36 is not applicable
to Bank C in this situation. It must honour in accordance with UCP 600 sub-article
8(a) irrespective of whether or not it will be reimbursed by Bank I.
This is a vivid example of how a confirmed LC can help the beneficiary
avoid the risk of non-payment by the issuing bank and other risks associated with
the issuing bank’s country.
 (2) The earthquake and tsunami occurred in Japan while the LC was
available at Bank C by payment and the date and place of expiry was in Vietnam.
As the nominated bank, Bank C honoured the LC, hence, it is entitled to
reimbursement from Bank I.
Article 36 is not applicable to Bank I in this situation. Bank I, upon
resumption of its business, must reimburse Bank C even when the documents
previously forwarded to it were lost in transit. The argument for this, in this
particular case, is the nominated confirming bank’s right to reimbursement from
the issuing bank – i.e., its protection under UCP 600 sub-article 7(c) (Issuing Bank
Undertaking) and article 35 (documents lost in transit).
Case Study II
Bank I (Sendai, Japan) issues an LC in favour of Ben B (Vietnam).
The LC is available at the counter of Bank I.
Date and place of expiry: 15 March 2011 in Japan.
Bank C advises the LC to Ben B.Ben B effects shipment 8 March 2011.
Bank I closes its business on 11 March 2011.
A question arises from the situation:
Bank C is not nominated to act under the LC and the LC is available at the
counter of Bank I (in Japan). Bank C on behalf of Ben B forwarded the documents
to Bank I for payment, but the documents could not be delivered to Bank I within
the credit validity because Bank I closed its business due to the force majeure
event. Can Bank I, upon resumption of its business, refuse to honour based on
article 36?
Analysis and Conclusion Case Study II
The LC was available by payment at the counter of Bank I but the
documents could not be presented within the credit validity as Bank I had to close
its business due to the earthquake and tsunami that occurred in Japan. Article 36 is
applicable to Bank I in this situation, that is, Bank I, upon resumption of its
business, can refuse to honour. The LC expired during the interruption of its
business based on this article.
Reflecting on this case it is natural to also address two following variations:
(a) The presentation is made to Bank I before the force majeure event, but
the documents are not examined due to the force majeure event.
(b) A complying presentation is made to Bank I before the force majeure but not
paid because of the force majeure event. (Bank I examined the documents and
determined that they complied with the LC BUT did not pay because of the force
majeure event.)
In both cases it is assumed that UCP 600 article 36 is not applicable. Since
the presentation was made before the force majeure and within the LC validity, the
confirming bank/issuing bank, upon resumption of its business, must honour if the
documents presented constitute a complying presentation.
It may not be appropriate to use URDG 758 article 26 to support this view,
but it must be expected that if the ICC were to issue a statement on the
interpretation of UCP 600 article 36, their view would be based on the spirit of
URDG 758 article 26.
Case Study III
Bank I (Sendai, Japan) issues a confirmed LC in favour of Ben B (Vietnam).
The LC is available at the counter of Bank C by payment.
Date and place of expiry: 15 March 2011 in Vietnam.
Bank C adds its confirmation and advises the LC to Ben B.
Ben B effects shipment 8 March 2011
Bank C closes its business on 11 March 2011 due to the occurrence of an
earthquake and tsunami in Vietnam.
 On 12 March, Ben B attempts to present documents to Bank C, but in vain
because Bank C has closed its business due to the earthquake and tsunami
A question arises from the situation:
In this case the earthquake and tsunami occurred in Vietnam and Bank C had
to close its business. As a result of this, Ben B could not present the documents to
Bank C within the LC validity. Can Bank C, upon resumption of its business,
refuse to honour the LC based on article 36? Is there any situation where Ben B’s
presentation would be honoured?
Analysis and Conclusion Case Study III
The earthquake and tsunami occurred in Vietnam, the LC was available at
Bank C by payment, and the date and place of expiry was in Vietnam.
Article 36 is applicable to Bank C in this situation. Bank C, upon resumption
of its business can refuse to honour under the LC that expired during the
interruption of its business. It should be noted however that UCP 600 article 6 (a)
allows the beneficiary to make a presentation directly to the issuing bank
bypassing the nominated bank. Bank C closed its business, hence, Ben B can,
within the credit validity, make the presentation to Bank I. Bank I must honour
upon receipt of the complying documents.
Conclusion
The article opened with the question as to whether it is true or false that a bank will
not, upon resumption of its business, honour or negotiate under an LC that expires
during such interruption.
As it appears from the above, the answer is true and false! Or rather that it
depends: The key points that determine whether the confirming bank or the issuing
bank is released of its obligation to honour under an LC that expires during an
interruption of its business due to a force majeure event are the terms and
conditions of the LC and where the earthquake and tsunami occurred.
 In short, if the LC is stipulated to be available with a bank whose business is
interrupted by a force majeure event, then in accordance with article 36, that bank
will not, upon resumption of its business, honour or negotiate the LC that expired
during such interruption of business.
The force majeure question asked in this issue of the TSU Newsletter (article
35, 2nd para, versus article 36 /volume 13, issue 2, March – April 2011) and the
following discussion among the TSU editors inspired this article.
It is an area of the UCP 600 where practically no documented practice
exists, hence some of the views expressed in the article are indeed debatable and
will hopefully lead to similar debates within the industry.
Any other views, comments, and arguments are highly appreciated.
________________________________________________________________
*This article was published in Trade Services Update Volume 13, Issue 2, March –
April 2011