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This book is the first to provide an extensive analysis of the range of defences to payment under letters of credit and demand guarantees. It considers the extent to which different defences undermine the abstraction of these instruments. This is a fundamental issue, since letters of credit and demand guarantees are designed to be abstract, or autonomous, from the underlying contract that called for their use. The purpose of that abstraction is to provide certainty of payment, but the various defences diminish that certainty. The book examines the spectrum of defences that are frequently litigated and debated in international practice: fraud in the documents, nullity, fraud affecting deferred payment letters of credit, fraud as no honest belief, unconscionable conduct and illegality. Vitally, the book provides analysis of the relevant judicial decisions and offers clear practical guidance on which defences are most suitable for each instrument. As the instruments are heavily used in international trade, this work is particularly suited to financial and commercial law practitioners who draft agreements, as well as those who advise on disputes concerning these instruments. Accessible and engaging, the book is also relevant for academics and students.
This book looks at the historical use of allegations of unconscionable conduct within the context of independent trade finance instruments, such as letters of credit and demand guarantees. It makes a detailed survey of the law of unconscionable conduct, the complexities of the doctrine of independence, and the circumstances where the former prevails to provide relief from abuse. It also completes a wide–ranging, sequential audit of the relevant case law in both Singapore and Australia where unconscionable conduct was alleged in independent instrument matters. The audit examines every case along the lines of precedent and details the contribution each makes to the law. Focussing on the jurisdictions of Singapore, Australia, and Malaysia, the book lays out the case for the broad adoption of unconscionable conduct in this domain. With its premises founded in precedent and statute, it describes the elements of independent instrument unconscionability as already laid down in law and links it to international banking practice.
John McGreal's three new books – It’s Abstraction, Concretely, It’s Figuration, Groundly and It’s Representation, Really – continue the ‘It’ Series published by Matador since 2010. They constitute another stage in an artistic journey exploring the visual and audial dialectic of mark, word and image that began over 25 years ago. Emerging out of the first books on the Bibliograph published in 2016, initiated with It’s Nothing, Seriously, these new texts retain some of the same structural features. The Bibliographs contain the same focus on repetition and variation in meaning of their dominant motifs of representation, abstraction and figuration which have framed philosophical discourse on epistemology and ontology in aesthetics; their chance placement in each Bibliograph interspersed with one another displaying and enhancing similarities and differences. At the same time these works constitute a development in the aesthetic form of the Bibliograph. In earlier works on Nothing, Absence and Silence, it was just a question of finding and transferring given textual references from their source to construct their Bibliographs, with the focus being on the strategic position of the latter within each book. In these new works, the concern has been with working on the line and shape of the references themselves, with their enhanced spacial form as well as that of each Bibliograph as a whole. In shaping and spacing the referential images, the place of words and letters became as important as their semantic & syntactical role. Expansion and contraction of whole words was used to enhance this process. Under such detailed attention their breakdown into particles of language, into part-words and single letters was a result. The recombination of elements produced new words in a process of restrangement with new sequences of letters having visual rather than semantic value. The play on prefixes of dominant motifs yielded new words as did tmesis. This concern with the form of referential images does not preclude an equal commitment to their content. The aleatory character of textual entries in each Bibliograph encourage the reader to let his or her mind go; to read in a new way on diverse contemporary issues across conventional boundaries in the arts and sciences at several levels of physical, psychical and social reproduction.
The question of what constitutes ‘fraud in the transaction’ with respect to international letters of credit varies considerably among jurisdictions. In proving allegations of fraud, it is crucial for the practitioner to know the relevant jurisdiction’s case law, especially if wider defences such as inducement, unconscionable conduct or bad faith must be invoked. In this book, the author argues that, whereas ‘fraud in the documents’ is generally sufficient in cases involving commercial letters of credit, standby letters of credit demand a wider fraud exception. The central issue – how wide that fraud exception should be – is what this book explores in depth.This author compares and critically examines the application of the fraud exception in four major trade jurisdictions – the United States, England, Canada, and Australia. With an overall focus on how each jurisdiction’s fraud tests treat the autonomy of standby letters of credit, she builds her arguments on such relevant sources and concepts as the following: when it can be shown that the beneficiary has ‘no bona fide belief’ in the validity of its claim demand guarantees; international initiatives (ICC Rules and the UN Convention on Independent Guarantee and Standby Letters of Credit); the Sztejn Rule; parameters of the ‘fraud in the transaction’ defence ‘materiality’ standard; prerequisites for injunctive relief; arguing ‘fraud in the formation of the contract’; performance bond cases; applying the ‘breach of good faith’ defence; ‘negative stipulation’ in the underlying contract; and equitable versus statutory/broader notion of unconscionability. The presentation includes detailed summaries and analyses of leading cases in all four jurisdictions. Lawyers and corporate counsel responsible for arguing claims or defences in letter of credit transactions will welcome the way the author's research and insight define the range of options in each case they handle. Academics also will appreciate the systematic way the book frames a complex area of international trade law.