Speaker: Dr Sanam Saidova
Documentary credits, often referred to as the “lifeblood of international commerce”, are one of the most widely used payment mechanisms in international trade. The success of the credits is premised on the principle of autonomy, which insulates the credit from the issues arising from the underlying commercial transaction.
At the same time, the credit’s autonomy can render a beneficiary, presenting an apparently complying but a forged and null document, eligible for payment where this beneficiary would not have been entitled to it had the document stated the truth.
This seminar examines whether English law should recognise a nullity exception to the autonomy principle in documentary credits. It will assess policies in favour of and against this exception and propose and construct the nullity exception based on the optimum balance between them.
The proposed exception is based on the objectively determinable criteria conducive to a precise legal analysis, certainty and speedy decision-making. The focus of the proposed test is on whether objectively a problem in a document renders it null and void or, in other words, destroys its essence or whole. The proposed exception is applicable where banks have clear knowledge of the nullity, imposing no duty on them to investigate facts/matters outside the documents.
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