The documentary letters of credit transaction is the most common method of payment for goods in international trade. Its use has been considered so important that it is referred to as the �lifeblood� of international commerce. The purpose of this thesis is, through analysing the present regime of documentary credit established under the The Uniform Customs and Practice for Documentary Credits, 1993 Revision (�UCP�), to identify the rights and duties of all parties in such transactions and the reasons for the frequent occurrence of fraudulent activities associated with the documents required under the credits. It identifies that the present system fails to either encourage or implement substantial realisation of �reasonable care� or �good faith� on the part of the banks, or realisation of the requirement of �good faith� from beneficiaries. As a result, the independence principle has been left without substance, with resulting huge opportunities for fraudsters to cheat on the documents and obtain payment without the need to actually perform their duties to banks and buyers. Such issues have become more acute against the background of an underlying shift in the allocation of risk between the respective parties to letters of credit. There has been a depreciation in the value of the primary document of title and security held by the issue, the bill of lading, with the advent of container shipping. As the letter of credit system is wholly dependent on the integrity of the documents, it is being undermined by these developments. This has represented a shift in the traditional scheme of risk allocation from the seller to the bank. In practice, banks have taken countermeasures by insisting that applicants provide other types of collateral, and by subjecting applicants to rigorous credit checks. Thus, applicants ultimately have had to bear the brunt of costs associated with this reallocation of risk. It will be demonstrated that the UCP does not incorporate adequate or clear enough duties to be exercised on the part of issuers toward applicants, and severely restricts the applicant�s right to sue if the issuer has wrongfully honoured. Ultimately, a balance must be struck between the desirability of protecting the applicant from the beneficiary�s fraud against the benefits gained by maintaining the letter of credit as a commercial instrument and business device. Obviously, there is public interest in protecting both of these commercial values. This thesis advocates that a mechanism in addition to the fraud exception must be introduced to safeguard the system against the ramifications of these changes � increased fraud. The thesis is structured into five chapters. Chapter 1 sets out to demonstrate the circumstances under which the respective risks are borne by each participant in the letter of credit transaction, and how developments in trade practice have caused the burden of certain of these risks among the parties to a letter of credit transaction to shift. Chapter 2, after briefly visiting the historical origins of the letter of credit and the birth of the UCP, explores the implications of the dominance of banking interests over the drafting and interpretation of the UCP, how the UCP has in practice excluded the intrusion of other sources of law and the general reluctance of courts to intervene by applying non-letter of credit principles, the implication of the UCP�s assumption of the law in practice, the resulting marginalisation of local laws, and the inequality in bargaining power between banks and applicants that precludes a choice of law other than the UCP. Chapter 3 explores the independence principle and question of documentary compliance, why the system is ridden with non-compliant documents and the lack of incentive and meaningful duty for the banks to check for �red flags� that may indicate fraud on the documents or in the transaction. It will be emphasised that documentary validity, rather than mere documentary compliance, should be the focus under the letter of credit. Chapter 4 examines the fraud exception to the independence principle, the typical high thresholds of proof that applicants had to overcome to estopp payment, and explores recent trends towards the gradual lowering of such thresholds. Finally, Chapter 5 considers practical measures and proposals for reform that would help to redress the imbalance in the allocation of risk identified in the thesis.

The documentary letters of credit transaction is the most common method of payment for goods in international trade. Its use has been considered so important that it is referred to as the �lifeblood� of international commerce. The purpose of this thesis is, through analysing the present regime of documentary credit established under the The Uniform Customs and Practice for Documentary Credits, 1993 Revision (�UCP�), to identify the rights and duties of all parties in such transactions and the reasons for the frequent occurrence of fraudulent activities associated with the documents required under the credits. It identifies that the present system fails to either encourage or implement substantial realisation of �reasonable care� or �good faith� on the part of the banks, or realisation of the requirement of �good faith� from beneficiaries. As a result, the independence principle has been left without substance, with resulting huge opportunities for fraudsters to cheat on the documents and obtain payment without the need to actually perform their duties to banks and buyers. Such issues have become more acute against the background of an underlying shift in the allocation of risk between the respective parties to letters of credit. There has been a depreciation in the value of the primary document of title and security held by the issue, the bill of lading, with the advent of container shipping. As the letter of credit system is wholly dependent on the integrity of the documents, it is being undermined by these developments. This has represented a shift in the traditional scheme of risk allocation from the seller to the bank. In practice, banks have taken countermeasures by insisting that applicants provide other types of collateral, and by subjecting applicants to rigorous credit checks. Thus, applicants ultimately have had to bear the brunt of costs associated with this reallocation of risk. It will be demonstrated that the UCP does not incorporate adequate or clear enough duties to be exercised on the part of issuers toward applicants, and severely restricts the applicant�s right to sue if the issuer has wrongfully honoured. Ultimately, a balance must be struck between the desirability of protecting the applicant from the beneficiary�s fraud against the benefits gained by maintaining the letter of credit as a commercial instrument and business device. Obviously, there is public interest in protecting both of these commercial values. This thesis advocates that a mechanism in addition to the fraud exception must be introduced to safeguard the system against the ramifications of these changes � increased fraud. The thesis is structured into five chapters. Chapter 1 sets out to demonstrate the circumstances under which the respective risks are borne by each participant in the letter of credit transaction, and how developments in trade practice have caused the burden of certain of these risks among the parties to a letter of credit transaction to shift. Chapter 2, after briefly visiting the historical origins of the letter of credit and the birth of the UCP, explores the implications of the dominance of banking interests over the drafting and interpretation of the UCP, how the UCP has in practice excluded the intrusion of other sources of law and the general reluctance of courts to intervene by applying non-letter of credit principles, the implication of the UCP�s assumption of the law in practice, the resulting marginalisation of local laws, and the inequality in bargaining power between banks and applicants that precludes a choice of law other than the UCP. Chapter 3 explores the independence principle and question of documentary compliance, why the system is ridden with non-compliant documents and the lack of incentive and meaningful duty for the banks to check for �red flags� that may indicate fraud on the documents or in the transaction. It will be emphasised that documentary validity, rather than mere documentary compliance, should be the focus under the letter of credit. Chapter 4 examines the fraud exception to the independence principle, the typical high thresholds of proof that applicants had to overcome to estopp payment, and explores recent trends towards the gradual lowering of such thresholds. Finally, Chapter 5 considers practical measures and proposals for reform that would help to redress the imbalance in the allocation of risk identified in the thesis.

Bank demand guarantees have become an established part of international trade. Demand guarantees, standby letters of credit and commercial letters of credit are all treated as autonomous contracts whose operation will not be interfered with by courts on grounds immaterial to the guarantee or credit itself. The idea in the documentary credit transaction/demand guarantee transaction is that if the documents (where applicable) presented are in line with the terms of the credit/guarantee the bank has to pay, and if the documents do not correspond to the requirements, the bank must not pay. However, over the years a limited number of exceptions to the autonomy principle of demand guarantees and letters of credit have come to be acknowledged and accepted in practice. In certain circumstances, the autonomy of demand guarantees and letters of credit may be ignored by the bank and regard may be had to the terms and conditions of the underlying contract. The main exceptions concern fraud and illegality in the underlying contract. In this thesis a great deal of consideration has been given to fraud and illegality as possible grounds on which payment under demand guarantees and letters of credit have been attacked (and sometimes even prevented) in the English, American and South African courts. It will be shown that the prospect of success depends on the law applicable to the demand guarantee and letter of credit, and the approach a court in a specific jurisdiction takes. At present, South Africa has limited literature on demand guarantees, and the case law regarding the grounds upon which payment under a demand guarantee might be prevented is scarce and often non-existent. In South Africa one finds guidance by looking at similar South African case law dealing with commercial and standby letters of credit and applying these similar principles to demand guarantees. The courts, furthermore, find guidance by looking at how other jurisdictions, in particular the English courts, deal with these issues. Therefore, how the South African courts currently deal/should be dealing/probably will be dealing with the unfair and fraudulent calling of demand guarantees/letters of credit is discussed in this thesis. / Jurisprudence / LL.D

Bank demand guarantees have become an established part of international trade. Demand guarantees, standby letters of credit and commercial letters of credit are all treated as autonomous contracts whose operation will not be interfered with by courts on grounds immaterial to the guarantee or credit itself. The idea in the documentary credit transaction/demand guarantee transaction is that if the documents (where applicable) presented are in line with the terms of the credit/guarantee the bank has to pay, and if the documents do not correspond to the requirements, the bank must not pay. However, over the years a limited number of exceptions to the autonomy principle of demand guarantees and letters of credit have come to be acknowledged and accepted in practice. In certain circumstances, the autonomy of demand guarantees and letters of credit may be ignored by the bank and regard may be had to the terms and conditions of the underlying contract. The main exceptions concern fraud and illegality in the underlying contract. In this thesis a great deal of consideration has been given to fraud and illegality as possible grounds on which payment under demand guarantees and letters of credit have been attacked (and sometimes even prevented) in the English, American and South African courts. It will be shown that the prospect of success depends on the law applicable to the demand guarantee and letter of credit, and the approach a court in a specific jurisdiction takes. At present, South Africa has limited literature on demand guarantees, and the case law regarding the grounds upon which payment under a demand guarantee might be prevented is scarce and often non-existent. In South Africa one finds guidance by looking at similar South African case law dealing with commercial and standby letters of credit and applying these similar principles to demand guarantees. The courts, furthermore, find guidance by looking at how other jurisdictions, in particular the English courts, deal with these issues. Therefore, how the South African courts currently deal/should be dealing/probably will be dealing with the unfair and fraudulent calling of demand guarantees/letters of credit is discussed in this thesis. / Jurisprudence / LL.D