30 November 2007

Doctrine of strict compliance

If the problem of interpretation of strict compliance is regarded from importer´s, exporter´s and banker´s view, it will lead to different results. The interest of the exporter can be easily determined: he wants to receive payment against the documents, even there are (relevant) mistakes.

So, an exporter will plead for the substantial compliance which offers more tolerances to him. A bank is interested to receive its charges and commissions without or with little risk. On the other hand, it must keep its reputation which can hardly been reached if every irrelevant mistake will lead to an obligation to refuse payment.

So, the interest of a bank is to make decisions on its own. For it, the literal compliance in a wider sense offers the best possibilities: obvious typographical errors do not lead to an obligation to refuse; on the other hand it can refuse payment in cases of doubt and is not obliged to examine the documents materially or finds itself as an arbitrator between applicant and beneficiary with the risk that it pays, but is not reimbursed and must lead a process.

Regarding the importer, it is not easy to say what interpretation of strict compliance he would prefer. Of course, he would not prefer the substantial compliance because it would lead to additional risks for him if his stipulations were not exactly fulfilled and the bank took up the documents in the belief that they are substantial equal. In such a case, a huge process risk would occur for him if he refused to pay the bank. But also it is not quite clear if the strict literal compliance offers more flexibility for him: the chance to give instructions to the bank if there are typographical or irrelevant errors make it possible to exploit the situation and claim new negotiations about the price with the beneficiary.

On the other side, a situation can occur when a bank has got own interests like financing the goods by credit: in such a situation, exporter and importer perhaps both want the sale contract to be fulfilled even there is an irrelevant error, but the bank refuses to pay because for example, the interest rates for a credit have been raised or because the credit-worthiness have been changed. So it is more secure for the importer if strict compliance is interpreted as wide literal compliance.

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