The Quarterly Journal of Judicial Law Views

The Quarterly Journal of Judicial Law Views

The Manner of Determining the Law Governing the Letters of Credit Contracts According to the Rome 1 Regulation 2008 and The Uniform Commercial Code (UCC) 1995 with Emphasis on Iran's Law

Document Type : p

Authors
University of Judicial Sciences and Administrative Services
Abstract
Letters of credit are commonly used in business transactions to ensure payments, especially, when the parties reside in different locations. While the determination of the law governing the letter of credit is very important for the parties, in many cases, it is ignored by the parties, and it is not mentioned in their contract. The silence of the parties leaves the duty for the courts to determine what law should govern the letter of credit agreement. This article examines and evaluates each of the contractual relationships between the parties of the letter of credit, and the law governing each legal relationship is examined independently and separately so that due to the independence of the legal relationships of the multiple parties of the letter of credit, the law governing each One of the contractual obligations should be determined precisely.In this regard, after reviewing relevant international regulations, including the Rome I Regulation and the Uniform American Trade Act, Iran's legal position is examined. The main question of the article is which law governs the contractual relations of the letter of credit parties? In line with the procedures and developments governing international trade law and international contracts , it is suggested that Iran's legislator, in line with the laws of other countries , move towards accepting the principle of the sovereignty of the will, and Article 968 of the Civil Code, which is currently is not in line with the requirements of trade law,  The international and broad global trends regarding the acceptance of the principle of the rule of will should be adjusted in line with Article 27 of the International Commercial Arbitration Act and to move in the direction of influencing the will of the parties and the effectiveness of international contracts. This article concludes that in the absence of uniform provisions of letters of credit as the governing rules of letters of credit and if the credit does not have a choice of governing law, the governing law is the legal system that has the closest and most real relationship with the credit. In the relationship between The law of the applicant and the credit opening bank , the closest connection is to the law of the country where the credit opening bank is located. In the case of the beneficiary and the notifying bank, the closest connection is to the law of the country where the notifying bank operates.
Keywords

  • Appanna, T. (2009), “The Two Important Doctrines Underlying Documentary Letters of Credit and the Fraud Exception”, Pretoria University Law Press,3.
  • Chantayan, F. (1999), “Choice of Law Under Revised Article 5 of the Uniform Commercial Code”, Journal of Civil Rights and Economic Development, Vol.14.
  • Dolan, J. F. (2019), The Law of Letters of Credit, Commercial and Standby Credits, Vol.1: an A.S Pratt Publication
  • Fama, A. Jr. )1985(, “Letters of Credit: The Role of Issuer Discretion in Determining Documentary Compliance”, Fordham Law Review, Vol. 53.
  • Gewolb, R.G. (1966), “The Law Applicable to International Letters of Credit”, Villanova Law Review, Vol. 11.
  • Grassi, S. P. (1995), “Letter of Credit Transactions: The Bank’s Position in Determining Documentary Compliance –a Comparative Evaluation Under U.S, Swiss and German Law”, Pace International Law Review, Vol. 7.
  • Hahn, J. (2007), “Governing Laws on Letters of Credit Under Uniform Commercial Code”, Journal of Korea Trade, November 2007, 11(3).
  • Hugo, Ch. F. (1996), “The Law Relating to Documentary Credits from a South African Perspective with Special Refrence to the Legal Position of the Issuing and Confirming Banks Dissertation”, University of Stellenbosch.
  • Karl, A. (2004), “Letters of Credit and the Doctrine of Strict Compliance”, university of Uppsala, Presented on January 7th.
  • King, R. (2001), Gutteridge and Megrah's Law of Bankers' Commercial Credits: Published by Routledge, 8th edition.
  • Kozolchyk, B. (1979), “Legal Aspects of Letters of Credit and Related Secured Transactions”, University of Miami Law School Institutional Repository, Vol. 11.
  • Lawrence, M. F. (2019), “Relationship Between a Banker and His Customer Under a Letter of Credit: A Legal Reflection”, International Journal of Research and Innovation in Social Science(IJRISS), Vol. III.
  • Markstein, A. (2010), “The Law Governing Letters of Credit”, 16 Auckland University Law Review, No. 138
  • Monaghan, Ch. (2012), “Letters of Credit and Disputes About Jurisdiction and Choice of Law: [2012] Petrologic Capital SA v Banque de Genève & Another [2012] EWHC 454 (Comm)”, BPP University Research Paper .
  • Philip Teoh Oon Teong, (2009), “Letters of Credit: A Conflict of Laws Perspective”, Singapore Academy of Law Journal.

  • Receive Date 15 August 2023
  • Revise Date 27 April 2024
  • Accept Date 26 August 2024