Fraud in the Underlying Transaction, Unconscionability, Good Faith: A Sword Instead of a Shield?
3.16
Although, as noted above, the applicant may originally have a legitimate reason for including a soft clause in the letter of credit, its refusal to produce a document required for payment, such as a signed certificate of receipt or countersigned certificate of inspection, may ultimately be driven by a desire to avoid its obligation to pay under the underlying transaction, perhaps because that transaction no longer provides at the time of performance the benefits that it appeared to promise at the time the contract was made, such as when the market price falls before payment is due in a contract for the sale of goods.
This is one of the principal underlying fears in relation to soft clauses, namely that they can be used as vehicles for fraud by an unscrupulous applicant.[273] To apply the fraud exception in cases such as this would be to extend it far beyond its traditional operation as a shield restraining payment by the bank to make it into a sword requiring payment by the bank. Such a development is admittedly very unlikely, but the possibility nevertheless warrants consideration.3.17
The autonomy principle enshrined in UCP 600, arts 4(a) and 5 requires banks to pay against conforming documents regardless of what may be going on in the underlying transaction, because, as art 5 puts it: ‘Banks deal with documents and not with goods, services or performance to which the documents may relate.' Although UCP 600 makes no mention of an exception in cases of fraud, most countries have as part of their national law a fraud exception that allows a defrauded applicant to restrain payment by the issuing, confirming, or nominated bank in the event of fraud by the beneficiary.[274]
3.18 In many countries, the fraud exception extends only to documents that have been fraudulently produced, which is generally referred to as ‘fraud on the documents’.
That is the position in the UKNew Roman">[275] and other common law countries that have historically followed UK law, such as Australia[276] and Singapore.[277] In countries such as these, the fraud exception would be of no assistance in the reverse situation under consideration here, in which the beneficiary is unable to present conforming documents because of the applicant's refusal to provide some of the documents stipulated in the soft clause of the letter of credit, such as a signed certificate of receipt. The document has not been fraudulently produced to secure payment; it is merely non-conforming or absent altogether.3.19 In other countries, by contrast, the fraud exception extends to ‘fraud in the underlying transaction’, which requires the court to look at whether the presentation of documents under the letter of credit is being used to effect fraud in the underlying transaction, even if the documents themselves are not fraudulently produced. This broader version of the fraud exception forms part of the law in the United States,[278] Canada,[279] and China,[280] among others. In countries such as these, an extended version of the fraud exception could conceivably be of assistance to a beneficiary who is unable to present conforming documents because of the applicant's deliberate inaction or positive misconduct in relation to the production of documents required by the soft clause.
3.20 For example, if the soft clause in the letter of credit requires signature by a representative of the applicant that matches a specimen sent to the issuing and/ or confirming bank, the applicant may get the required representative to sign if the market has gone up since the contract was made, but may get another person to sign if the market has gone down.[281] In the latter situation, the applicant would be well aware that the doctrine of strict compliance should, and most probably would, lead to the result that the issuing, confirming, or nominated bank
would quite properly reject the document as non-conforming and so would withhold payment.
Such conduct could, if proven, amount to fraud in the underlying transaction: the applicant would be acting deliberately to ensure that the beneficiary would not get paid.3.21
Even if a fraud of this kind in the underlying transaction could be proved (which is, in itself, a very big if), the fact remains that even this broader version of the fraud exception has traditionally been a vehicle for restraining payment, rather than a means of demanding payment. In the United States, the doctrine of fraud in the underlying transaction has a statutory basis in § 5-109 of the Uniform Commercial Code, which by its terms refers only to circumstances in which the issuing bank may refuse to honour a presentation, or may be enjoined from doing so by a court.[282] In other words, the statutory ‘fraud in the underlying transaction' doctrine in the United States is a shield, not a sword. In contrast, the ‘fraud in the underlying transaction' doctrine in Canada is based on common law principles rather than the provisions of a statute and so could conceivably be argued to be of general application whenever fraudulent conduct is to be found in the underlying transaction. Nevertheless, the question arises in both countries (and in any others, like China, with a ‘fraud in the underlying transaction' exception): what can be done if it is the applicant who is guilty of fraud in the underlying transaction, rather than the beneficiary? Can the doctrine be turned into a sword requiring payment to a beneficiary, rather than a shield preventing payment at the applicant's request?
3.22
The short answer to that question seems to be ‘No, but the idea that unfair conduct unravels the banks' obligations under the letter of credit does seem to be gaining some ground in recent years. Several countries, including Singapore[283] and Australia,[284] have expanded the grounds for restraining payment to include unconscionability, ie the situation where the beneficiary is acting unconscionably, rather than fraudulently, in drawing on a letter of credit or performance guarantee.[285] This development has been aptly described as fairness at the expense of commercial certainty,[286] and it is significant that it has occurred in countries that confine the fraud exception to fraud on the documents.
Both the unconscionability doctrine and the ‘fraud in the underlying transaction' doctrine recognise that unfair behaviour (to put it deliberately broadly) in the underlying transaction is a reason for breaking through the wall that traditionally separates the letter of credit transaction from the underlying transaction. An applicant’s deliberate refusal to provide the documents required by a soft clause seems just as unfair or unconscionable as, for example, a beneficiary’s attempt to draw on a standby letter of credit when it knows that there is a genuine dispute about its entitlement to draw the claimed amount.[287]3.23 The problem, of course, lies in the fact that there is no real mechanism for treating fraud in the underlying transaction or unconscionable behaviour as a sword rather than a shield. Two possible solutions suggest themselves. The first would be for the court to order the bank to disregard the absence or non-conformity of the document required by the soft clause if the court were sufficiently persuaded that the applicant was acting fraudulently (or unconscionably) in making sure that the beneficiary did not have a conforming document to present. In the context of the ‘regular’ fraud exception, courts in both the UK[288] and Canada[289] have held that a beneficiary should not be prevented from receiving payment when it presents a document fraudulently prepared by someone else without the beneficiary’s knowledge. An extension (admittedly, a very large extension) of this principle would say that a beneficiary should not be prevented from receiving payment when it either fails to present a document, or presents a non-conforming document, because of fraudulent (or unconscionable) conduct on the part of someone else (the applicant or someone in the applicant’s country acting at the applicant’s behest), over whom it has no control.
3.24 The second possibility would be for the court to order the applicant to sign (or countersign) the missing or discrepant document.
That was done in The Messiniaki Tolmi litigation,[290] where the High Court ordered the applicant to countersign the notice of readiness, and then ordered that a Supreme Court master should countersign it when the applicant ignored the court’s order; the House of Lords later confirmed that the High Court had jurisdiction to make such orders.[291] This expedient would work if the fraudulent or unconscionable withholding were being done by the applicant itself, but not if it were being done by a third party. The beneficiary in The Messiniaki Tolmi ultimately failed to recover under the letter of credit, despite the countersignature that was eventually put on the notice of readiness, because the Taiwanese authorities did not indicate their approval of the gas-free certificate.[292]3.25 Another possible sword for the beneficiary might be the development of a doctrine of good faith, which might preclude a bank from relying on the doctrine of strict compliance if it would not be acting in good faith when doing so. That was the result in the Nareerux case, described above.[293] Sam’s Club began to refuse to take delivery of the shrimp from Thailand, so the American wholesaler (the first buyer) began to sell the shrimp to other customers. When it deposited the proceeds of sale into its bank—the issuing bank under the letter of credit—the bank applied the balance to reducing the wholesaler’s line of credit, rather than paying it to the Thai seller/beneficiary under the letter of credit. The Ontario Court of
Appeal ultimately held that although the documents presented by the Thai seller/benefi- ciary did not conform strictly to the terms of the credit, the bank was precluded by the doctrine of good faith from relying on the doctrine of strict compliance. The court held that the bank had ‘knowingly contributed to, or acquiesced in, the circumstances that undermined the prospect of strict compliance’.[294]
3.26
The Nareerux decision has been roundly criticised in Canada,[295] and it seems that it has never yet been followed by another Canadian court.
John Dolan suggested that the new Canadian principle of good faith should be confined to the situation where the issuer’s own actions render compliance impossible.[296] If confined in such a way, the principle would be of no assistance to a beneficiary when the issuing bank is merely aware that the applicant is withholding crucial documentation, but does nothing to inform the beneficiary. In any event, there are several conceptual difficulties with the imposition of a duty of good faith on an issuing bank. The Ontario Court of Appeal held that the duty was implied in the contract between issuing bank and beneficiary,[297] but it is questionable in many common law countries whether the relationship between those two is, indeed, contractual.[298] Even in the United States, where a duty of good faith is imposed on issuing banks by section 1-304 (formerly § 1-203) of the Uniform Commercial Code (‘UCC’), it is not settled whether the duty is an implied contractual term,[299] or an extra-contractual duty imposed as a result of the contractual relationship.[300] A detailed consideration of these issues goes beyond the scope of this chapter: it is sufficient for present purposes simply to note that any development of a general doctrine of good faith on the part of an issuing bank might not be sufficient to solve the beneficiary’s problems in relation to soft clauses, and would inevitably raise difficult questions of choice of law. The actions of the issuing bank under scrutiny would usually take place in a country different from that where their effect is felt: should the relevant law be that of the issuing bank’s country, on the basis that that was where the conduct occurred, or that of the beneficiary’s country, on the basis that that was where the bank’s conduct had its effect?3.27
At the end of the day, it seems very unlikely that any of these legal devices—the ‘fraud in the underlying transaction’ doctrine, the unconscionability doctrine, or a good faith doctrine—can be pressed into service to rescue a beneficiary who has difficulty in complying with a soft clause because of difficulty in presenting documents to be produced by the applicant or in the applicant’s country. In this context, it is worth recalling that in the context of sale of goods, at least, a refusal by the bank to make payment under a letter of credit does not relieve the buyer of its contractual obligation to make payment for the goods in question.[301] The seller's cause of action for breach of the sale contract by the buyer may be much less secure than its hoped-for right to collect on the letter of credit provided on the buyer's application, but it does still have a cause of action for non-payment against the buyer. For example, in The Messiniaki Tolmi,[302] the Panamanian shipowner obtained a large arbitration award in its favour for breach of the sale contract by the Taiwanese buyer, but it still continued to try to enforce payment by the confirming bank under the letter of credit because the award could not be enforced effectively against the Taiwanese buyer.[303] Similarly, the seller/beneficiary might have a cause of action against the buyer/beneficiary under the sale contract for the latter's refusal to issue or sign a document required for presentation by the soft clause, either because the parties so stipulate in the sale contract, or because of an implied obligation of good faith and fair dealing in the sale contract.[304]
IV.