دفاتر السياسة والقانون
Volume 10, Numéro 19, Pages 01-22
2018-06-01

الغش كاستثناء على مبدأ استقلال خطاب الضمان الدولي وفقا لاتفاقية الأمم المتحدة للكفالات المستقلة وخطابات الاعتماد الضامنة لسنة 1995

الكاتب : عكوش سيهام سيهام .

الملخص

The Convention of the United Nations on Guarantees and letters of credit has addressed the effects of fraud on bank commitments through rules enacted. Indeed, this convention and especially Article 19 titled '' Exceptions to the payment obligation '' considered the risks of falsification or bad faith implying non-respect of commitments. However, this convention has not clearly defined the notion of fraud which led to interpretations more or less relevant. There are two conditions for reporting proven fraud: The first is mentioned in Article 19 of the said Convention. The second is a doctrinal interpretation. Verification of fraud evidence is more difficult to highlight than the fraud itself. This is more difficult to the principal to prove his existence. The confirmation of falsification must be established by tangible evidence without recourse to the basic contract terms or any other correlation. Confirmation of the fraud situation is reported to the competent legal authorities. This reporting must distinguish between fraud before the beneficiary claiming, the amount of the secured credit and subsequently to that amount. The convention also addressed the issue of confirmation of the counter guarantor on the fraud of the primary bank (domiciliary) or any other malicious association of it with the beneficiary. This is more difficult if the bank is located abroad. In such a case, the counter-guarantor can not convict the violator in the event of proven evidence of fraud from the domiciliary bank. Article 19 also addressed the cases where it is permitted to the domiciliary bank to block payment to the beneficiary. Doctrine and especially French and Anglo-Saxon jurisprudence , recommended the principle of independence of the bank as for the letter of credit of any other contractual relationship. This exception of independence is without force when it comes to proven fraud or collusion between the bank and the beneficiary in accordance with the rule that provides for "any fraud cancels any commitment ''. This principle governs all legal instruments in the field of international trade.

الكلمات المفتاحية

Fraud, exception, principle of independence, United Nations Convention, standby letters of credit, 1995