국제상업회의소(ICC)의 독립적보증에 관한 통일규칙(URDG) 개정안 제3차 초안의 주요 내용

Abstract

At present, the use of independent bank guarantee is widespread and the total volume has expanded dramatically. One may safely assume that major transactions today do not take place without some kind of guarantee support. The growth is partly due to the fact that bank guarantees can be employed to back up all kinds of transactions, both non-financial (such as contracts of sale, leases and construction contracts), and financial transactions (such as loans and overdraft facilities, participation in joint ventures, bond issues, reinsurance and other financial commitments) As an effort to create a uniform rule concerning the independent bank guarantees, Uniform Rules for Demand Guarantees, ICC Publication no. 458 ("URDG458"), were published and effective in April 1992. Regrettably, at this stage the URDG458 has not yet gained wide acceptance. The precise reasons for this rather luke-warm reception remain somewhat obscure. One motive appears to be the fear that the URDG458 might conflict with the standard guarantee texts which banks employ or the particular provisions which banks and beneficiaries wish to include or exclude. This fear is unfounded since the URDG458 themselves do not contain guarantee texts or specific provisions. Certain banks in some countries raise the objection that the prototype of payment condition is a written demand for payment supported by a specific statement of default, Art. 20(a) of the URDG458, whereas these banks are used to issue 'simple demand' guarantees not requiring such a statement. A third reason for the luke-warm reception of the URDG458 by banks appears to be that, according to them, the market - i.e. account parties and especially beneficiaries - does not ask for the incorporation of the Rules. In any event, it would be unfortunate that the URDG458 were not to become widely accepted. Thus, ICC launched the task of revision for the URDG458 last year, and now the 4th draft of the revision went out for final approval by the Banking Commission in November of 2009. This article is written to introduce the 3rd comprehensive draft of the revision. Even if a final revised draft is not yet released, the 3rd draft can show how the final revision will look like and what the direction of the revision is. The most important feature of the 3rd draft is that there are many articles which are most similar to them of UCP600 and/or ISP98. It appears that the working group has borrowed the many relevant articles of UCP600 and ISP98 because of the hope that if the revised URDG and UCP600 (or ISP98) are consistent and similar each other, the market will ask for the incorporation of the revised URDG. The success of the revised URDG will ultimately depend on the extent to which the international business community is prepared to adopt them in practice. That is why the working group has referred to the UCP600 and ISP98 in the course of revision of the URDG458. Before introducing new features and other characteristics in the 3rd draft, this article also provides: (1) a reconsideration of the meaning of "guarantee" and the function in the independent bank guarantee; (2) the background history surrounding the revision; and (3) relation with other existing convention and rules, which are the Convention on Independent Guarantees and Standby Letters of Credit, and International Standby Practice 1998.