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BANK GUARANTEES
              &

STAND BY LETTERS OF CREDIT




       www.thebenche.com
WHEN A GUARANTEE OR A STAND BY LETTER OF
         CREDIT IS AN ALTERNATIVE




Instead of cash collateral

When there is a need for an
additional security

When the financial strength
of the counter party is
uncertain



                   www.thebenche.com
HOW GUARANTEES &
STANDBYS CORRELATE TO THE
   COMMERCIAL EVENTS

Commercial event

Invitation for tender


          Tender        Contract              Partial delivery   Installation   Take over     Warranty period
                                   Advance
                                   Payment


                                                                                                            Time
Type of
Guarantee
                                             Performance guarantee

            Bid guarantee     Advance payment guarantee               Retention guarantee   Warranty guarantee

Validity period
& amount




                                        www.thebenche.com
ADDITIONAL TYPES OF
     GUARANTEES AND STANDBYS

Payment guarantee

Transfer guarantee

Loan/Credit guarantee

Customs guarantee

Duty exempt guarantee

Judicial guarantee

Guarantees in favor of governmental
entities

Rental guarantees


                             www.thebenche.com
THE PARTIES INVOLVED IN A
     GUARANTEE OR STANDBY


                         The underlying contract

     Principal                                        Beneficiary




Letter of indemnity
                             Direct Guarantee      Local Guarantee


                                   or

                            Counter Guarantee




BANK– Guarantor/                                      Guarantor
 Instructing Party


                      www.thebenche.com
THE TWO MAIN PRINCIPLES

Suretyship guarantee - ”as for a
debt of our own”

or

Demand guarantee - ”we hereby
irrevocably undertake to pay
you any sums or sums not
exceeding ......upon receipt by
the BANK of your first demand
in writing and your written
statement stating .....”


                      www.thebenche.com
SURETYSHIP GUARANTEES

  The underlying transaction or contract must be presented
  to your bank before issuance of the guarantee

  Suretyship guarantees are dependent on the underlying
  legal obligation or the contract

  The Guarantor is entitled to make the same objections
  against a claim as the Principal

Consequently the Guarantor can wait for a legally binding
arbitration award or judgement or written agreement between the
Principal and the Beneficiary

                       www.thebenche.com
DEMAND GUARANTEES
By their nature a separate transactions from the underlying
contract

The Guarantor’s duty is to pay on Beneficiary’s first written
demand and statement

The Guarantor must pay without any objections if the
Beneficiary claims in accordance with the terms & conditions of
the guarantee.

A Demand Guarantee could be enhanced with documentary
support, e.g. a court decision, an arbitration award etc. (see
article 2a URDG 458).

                      www.thebenche.com
STANDBYS

  The Standby is essentially the same as a Demand
  Guarantee

  Its appearance is different from a typical Demand
  Guarantee issued by banks outside of the US

  The essence of a Standby is that the issuer (the Bank)
  promises to pay the Beneficiary upon presentation of
  documents as stipulated in the Standby

ICC, however, applies a set of different rules for Standbys
(ISP98).

                      www.thebenche.com
CLEAN STANDBYS IN FAVOR OF
THE INSURANCE COMMUNITIES


Silent to the underlying
reference/contract

Evergreen clause

Only one single draft

More than one beneficiary

Often governed by UCP


                   www.thebenche.com
MULTI PARTY GUARANTEES
    AND STANDBYS


Issued for the account of two or more Principals/
Applicants

Issued by two or more Issuers

Issued in favor of two or more Beneficiaries




                 www.thebenche.com
TO TAKE INTO CONSIDERATION
 BEFORE ISSUING A STANDBY


Commercial Letter of Credit vs. Standby Letter of
Credit

Expiry date

Confirmation vs. Counter-Guarantee

Law & Jurisdiction

Rules UCP600 vs. ISP98


                 www.thebenche.com
RULES OF PRACTICE FOR
GUARANTEES AND STANDBYS



International Standby Practices - ISP98

Uniform Rules for Demand Guarantees - URDG 458

Uniform Customs and Practice for Documentary
Credits - UCP500 (600)




                  www.thebenche.com
PAYMENT UPON PRESENTATION OF
    THIRD PARTY DOCUMENTS



               Demand +
                                      Demand +                    Demand +
            Judgement or
                                     Independent                 Beneficiary’s
           Arbitration Award
                                     Assessment                   Statement




                 •  •                       •        •                   • 
  Max                                                                              Mini
Security                                                                         Security




                                                Demand +
           Suretyship Guarantee             Architect/Engineer
                                               Certificate




                                  www.thebenche.com
TO TAKE IN TO CONSIDERATION
   BEFORE SIGNING THE CONTRACT


Type of guarantee                      Max amount

Reference to the                       Reduction clause
underlying contract
                                       Foreign bank’s charges
Rules - URDG458, ISP98
or UCP600                              Templates and language

Documents to be                        Law and Jurisdiction
presented

Time of validity/expiry
date




                          www.thebenche.com

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Guarantees & Standby Letter of Credits

  • 1. BANK GUARANTEES & STAND BY LETTERS OF CREDIT www.thebenche.com
  • 2. WHEN A GUARANTEE OR A STAND BY LETTER OF CREDIT IS AN ALTERNATIVE Instead of cash collateral When there is a need for an additional security When the financial strength of the counter party is uncertain www.thebenche.com
  • 3. HOW GUARANTEES & STANDBYS CORRELATE TO THE COMMERCIAL EVENTS Commercial event Invitation for tender Tender Contract Partial delivery Installation Take over Warranty period Advance Payment Time Type of Guarantee Performance guarantee Bid guarantee Advance payment guarantee Retention guarantee Warranty guarantee Validity period & amount www.thebenche.com
  • 4. ADDITIONAL TYPES OF GUARANTEES AND STANDBYS Payment guarantee Transfer guarantee Loan/Credit guarantee Customs guarantee Duty exempt guarantee Judicial guarantee Guarantees in favor of governmental entities Rental guarantees www.thebenche.com
  • 5. THE PARTIES INVOLVED IN A GUARANTEE OR STANDBY The underlying contract Principal Beneficiary Letter of indemnity Direct Guarantee Local Guarantee or Counter Guarantee BANK– Guarantor/ Guarantor Instructing Party www.thebenche.com
  • 6. THE TWO MAIN PRINCIPLES Suretyship guarantee - ”as for a debt of our own” or Demand guarantee - ”we hereby irrevocably undertake to pay you any sums or sums not exceeding ......upon receipt by the BANK of your first demand in writing and your written statement stating .....” www.thebenche.com
  • 7. SURETYSHIP GUARANTEES The underlying transaction or contract must be presented to your bank before issuance of the guarantee Suretyship guarantees are dependent on the underlying legal obligation or the contract The Guarantor is entitled to make the same objections against a claim as the Principal Consequently the Guarantor can wait for a legally binding arbitration award or judgement or written agreement between the Principal and the Beneficiary www.thebenche.com
  • 8. DEMAND GUARANTEES By their nature a separate transactions from the underlying contract The Guarantor’s duty is to pay on Beneficiary’s first written demand and statement The Guarantor must pay without any objections if the Beneficiary claims in accordance with the terms & conditions of the guarantee. A Demand Guarantee could be enhanced with documentary support, e.g. a court decision, an arbitration award etc. (see article 2a URDG 458). www.thebenche.com
  • 9. STANDBYS The Standby is essentially the same as a Demand Guarantee Its appearance is different from a typical Demand Guarantee issued by banks outside of the US The essence of a Standby is that the issuer (the Bank) promises to pay the Beneficiary upon presentation of documents as stipulated in the Standby ICC, however, applies a set of different rules for Standbys (ISP98). www.thebenche.com
  • 10. CLEAN STANDBYS IN FAVOR OF THE INSURANCE COMMUNITIES Silent to the underlying reference/contract Evergreen clause Only one single draft More than one beneficiary Often governed by UCP www.thebenche.com
  • 11. MULTI PARTY GUARANTEES AND STANDBYS Issued for the account of two or more Principals/ Applicants Issued by two or more Issuers Issued in favor of two or more Beneficiaries www.thebenche.com
  • 12. TO TAKE INTO CONSIDERATION BEFORE ISSUING A STANDBY Commercial Letter of Credit vs. Standby Letter of Credit Expiry date Confirmation vs. Counter-Guarantee Law & Jurisdiction Rules UCP600 vs. ISP98 www.thebenche.com
  • 13. RULES OF PRACTICE FOR GUARANTEES AND STANDBYS International Standby Practices - ISP98 Uniform Rules for Demand Guarantees - URDG 458 Uniform Customs and Practice for Documentary Credits - UCP500 (600) www.thebenche.com
  • 14. PAYMENT UPON PRESENTATION OF THIRD PARTY DOCUMENTS Demand + Demand + Demand + Judgement or Independent Beneficiary’s Arbitration Award Assessment Statement •  •  •  •  •  Max Mini Security Security Demand + Suretyship Guarantee Architect/Engineer Certificate www.thebenche.com
  • 15. TO TAKE IN TO CONSIDERATION BEFORE SIGNING THE CONTRACT Type of guarantee Max amount Reference to the Reduction clause underlying contract Foreign bank’s charges Rules - URDG458, ISP98 or UCP600 Templates and language Documents to be Law and Jurisdiction presented Time of validity/expiry date www.thebenche.com