An article-by-article analysis of eUCP variant 2.0 and eURC version 1.0 to explain for the new guidelines.
| Definitions | UCP 600 | eUCP Version 2.0 |
|---|---|---|
| Definitions | Where not defined or amended in the eUCP, definitions given in UCP 600 will continue to apply | Where terms are also used in UCP 600, definitions are updated for application to an electronic record |
| Scope | Paper documents (and electronic records if strictly defined, although UCP 600 only provides limited protection) | Electronic records alone or in combination with paper documents |
| Application | UCP 600 | UCP 600 & eUCP Version 2.0 |
| Relationship | UCP 600 | In event of conflict, eUCP prevails |
| Presentation of only paper documents | UCP 600 | UCP 600 |
| Documents examined on their face | Review of data within a document in order to determine that a presentation complies with international standard banking practice and the principles contained in UCP | Electronic records are examined only for the data received and not the reality that such data represents |
| Document | The term suggests format in a paper medium: unless specifically allowed under the terms and conditions of a UCP 600 credit, it is expected that all presentations under such a credit be in a paper format | Adds the term ‘electronic record’ to the meaning | Place for presentation | The place where the documentary credit is available | Extends the phrase to include an electronic address | Data Processing System | Not necessarily used | A computerised or an electronic or any other automated means used to process and manipulate data, initiate an action or respond to data messages or performances in whole or in part | Electronic signature | Not specifically defined: article 3 highlights that ‘a document may be signed by handwriting, facsimile signature, perforated signature, stamp, symbol, or any other mechanical or electronic method of authentication’ | Data attached to an electronic record with the intent of identifying the signer and authenticating the record | Format | Unless specifically stated otherwise, expected to be paper | The protocol by which data is organised, the version of that format, or the shorthand name by which that protocol is recognised and described | Paper document | Unless otherwise stipulated, assumption is that all ‘documents’ are in a paper medium: however, as is often the case with UCP 600, this fundamental assumption is not stated expressly and, instead, the term ‘document’ is used | Refers to a document in a paper medium, the type of document which is expected to be presented under UCP 600 | Authentication | The process by which the validity of the representations and the paper documents containing them are ascertained: under UCP 600, the level of authentication of paper documents is facial | Identifying the person sending a message and the source of the message, and associating the person authenticating with the content of the message authenticated | Goods, Services or Performance | Banks deal with documents and not with goods, services or performance to which the documents may relate | Also addresses electronic records | Notice of completeness | Not applicable | Presentation does not take place until the presenter provides a notice of completeness to the nominated bank, confirming bank, if any, or to the issuing bank | Time for examination | Once presentation is made to an issuing or confirming bank, the time for examination commences | Electronic records may be presented separately and, even if paper documents are presented in one lot, they must be coordinated with the electronic records: the time for the examination of documents does not commence until the notice of completeness is received | Period for examination | Maximum of five banking days following the day of presentation to determine if a presentation is complying | Remains applicable | Approach by the issuing bank to the applicant in order to seek a waiver of discrepancies | UCP 600 sub-article 16 (b) (Discrepant Documents, Waiver and Notice) | Remains applicable | Notice process for discrepant documents | UCP 600 sub-article 16 (b) (Discrepant Documents, Waiver and Notice) | Remains applicable | Disposition of documents in event no instructions received subsequent to notice of refusal | Paper documents can be held or returned | Paper documents can be held or returned | Originals and copies | UCP 600 sub-articles 17 (b) and (c) | Any requirement for an original is satisfied by the presentation of one electronic record: in the event of a requirement for multiple copies, the condition will be fulfilled by presentation of one electronic record | Date of issuance | Requirement for a document to be dated is with respect to the identification of certain dates on transport and insurance documents. In addition, there are expectations that other documents, such as statements or certifications, must contain a date. ISBP 745 goes into more detail as to documentary requirements under UCP 600. Credits may also contain a specific requirement that a document be dated | Effectively dates electronic records, with the result that all such records must be dated: if there is to be any other way of determining the date of issuance then this will be for the eUCP credit itself to determine | Date of shipment or dispatch or taking in charge or a date the goods were accepted for carriage | Contains elaborate rules for determining the date of shipment or dispatch that are individualised according to the type of transport document involved | Date of shipment is the date in the electronic transport record indicating shipment or dispatch or taking in charge or the goods were accepted for carriage. If there is no date indicating shipment or dispatch or taking in charge or goods accepted for carriage, the date of shipment or dispatch is the date of issuance of the electronic transport record unless there is a notation evidencing shipment or dispatch or taking in charge or goods accepted for carriage | Data corruption | No rule for paper documents that are lost or rendered unreadable by a bank after they have been received; most banks have procedures in place that minimise the consequences of such loss and there is no perceived need for such a rule. These procedures involve refusing payment based on discrepancies in the documents that are presented, requesting a substitute document, or indemnifying the applicant for any harm that may result from the lost document | Provides a method by which corrupted data may be re- presented; based on the assumption that all electronic records are replaceable | Disclaimers | Contains several disclaimers that are also relevant to an eUCP credit | Additionally, disclaims banks’ liability for any divergence from the realities represented in authenticated electronic records | Force Majeure | States the force majeure events for which a bank assumes no liability or responsibility | Extended to cover the inability of a bank to access a data processing system, or a failure of equipment, software or communications network |
ARTICLE E3—DEFINITIONS
Embraces a number of terms used in the eUCP. Reference is made to terms that also appear in UCP 600, but have a different meaning when applied to an electronic record presented under an eUCP credit.
These include ‘appear on their face’, ‘document’, ‘place for presentation’, ‘presenter’, ‘sign’, and ‘superimposed, notation
or stamped’. Owing to the interdependence between UCP 600 and eUCP, it was clear that these UCP 600 terms required
‘re-definition’ under the eUCP in order to remain applicable. In addition, reference is made to terms used solely in the eUCP. These include ‘data corruption’, ‘data processing system’, ‘electronic record’, ‘electronic signature’, ‘format’, ‘paper document’, ‘received’, and ‘re-present or re- presented’.
Impact of Electronic Commerce law.
Not only are many of the terms that are defined in eUCP article e3 used in electronic commerce, they have also come
to be used and even defined in the law relating to it. With respect to the law, as well as electronic commerce generally, there has been no intention to develop new doctrine or concepts. Any innovations in the definitions in the eUCP derive from the unique nature of the documentary credit. The eUCP definitions are modeled on the United Nations Commission on International Trade Law Model Law on Electronic Commerce (UNCITRAL MLEC). In most cases, the law of electronic commerce reflects modern commercial law in permitting private rules to utilize particular definitions internally.
Where the same term has different meanings or where the same concept is given two different names—one in the law and a different one in a private rule—there is more likely to be confused than conflict in applying local law.
The confusion would result where local law embraces one definition but defers to the eUCP and permits the use of a different definition internally in applying that practice.
For example, the term ‘document’ may have a different meaning under local electronic commerce law than in the eUCP. When applying local electronic commerce law, its own definition must be used, whereas in interpreting and applying
the eUCP, the eUCP definition must be used. The only area identified to date as one for possible confusion regarding
the conflict between the eUCP and local electronic commerce law relates to the degree of authenticity required for electronic records and the meaning to be attached to a requirement for an electronic signature.
Where there is a mandatory requirement under local electronic commerce law for a higher degree of authenticity than would be required under the eUCP, local electronic commerce law may impose additional requirements on an electronic presentation.
“APPEAR ON THEIR FACE”
As with paper documents, electronic records are examined only for the data received and not the reality that such data represents. Although the eUCP allows banks to examine electronic records accessible via an external system, such examination is still limited to the data provided at that site or system and not of the underlying reality represented. Examination of data is related to the content that is required in order to determine compliance with the terms and conditions of the credit. The format of a computerized program used to view an electronic record may hide certain data and only display the data that it is programmed to reveal. It is possible that elements of this suppressed data may necessitate examination for some purposes and not others. As an example, it may be expected that certain header
and footer tags will be reviewed in the process of authenticating the transmission or in ascertaining the data sent or received. In order to avoid difficulties, a bank should give careful thought to the format in which the data is required
to be presented and what data will be displayed by processing systems which will be sufficient to assure it that an examiner has all of the data that is relevant to an examination of the electronic record.
“DOCUMENT”.
The eUCP adds the term ‘electronic record’ to the meaning of ‘document’ as used in UCP 600. It is important that the impact of applicable local electronic commerce law always be taken into account. However, as mentioned above, based upon the fact that the eUCP definitions are modelled on the UNCITRAL MLEC, it is understood that there will be no particular conflict with the eUCP definition of ‘document’. In the preparation of the MLEC, consideration was given to the possibility of dealing with impediments to the use of electronic commerce posed by such requirements in national laws by way of an extension of the scope of such notions as ‘writing’, ‘signature’ and ‘original’, with a view to encompassing computer-based techniques.
“DOCUMENT”—‘FUNCTIONAL EQUIVALENT’.
The MLEC thus relies on a new approach, sometimes referred to as the ‘functional equivalent approach’, which is based on an analysis of the purposes and functions of the traditional paper-based requirement with a view to determining how those purposes or functions could be fulfilled through electronic commerce techniques. For example, among the functions served by a paper document are the following: to provide that a document would be legible by all; to provide that a document would remain unaltered over time; to allow for the reproduction of a document so that each party would hold a copy of the same data; to allow for the authentication of data by means of a signature, and to provide that a document would be in a form acceptable to public authorities and courts. It should be noted that in respect of all of the above-mentioned functions of paper, electronic records can provide the same level of security as paper and,
in most cases, a much higher degree of reliability and speed, especially with respect to the identification of the source
and content of the data, provided that a number of technical and legal requirements are met. However, the adoption of the functional-equivalent approach should not result in imposing on users of electronic commerce more stringent standards of security (and any related costs) than in a paper-based environment. A data message, in and of itself, cannot be regarded as an equivalent of a paper document in that it is of a different nature and does not necessarily perform all conceivable functions of a paper document. That is why the MLEC adopted a flexible standard, taking into account
the various layers of existing requirements in a paper-based environment: when adopting the ‘functional-equivalent’ approach, attention was given to the existing hierarchy of form requirements, which provides distinct levels of reliability, traceability and unalterability with respect to paper-based documents. For example, the requirement that data be presented in written form (which constitutes a ‘threshold requirement’) is not to be confused with more stringent requirements such as ‘signed writing’, ‘signed original’, or ‘authenticated legal act’. The MLEC does not attempt to define a computer-based equivalent to any kind of paper document. Instead, it singles out basic functions of paper-based form requirements, with a view to providing criteria that, once they are met by data messages, enable such data messages to enjoy the same level of legal recognition as corresponding paper documents performing the same function.
“PLACE FOR PRESENTATION”.
The eUCP extends the phrase ‘place for presentation’ in UCP 600 to include an electronic address when referring to
the place of presentation of an electronic record under an eUCP credit. For purposes of transparency and clarity, as well as certainty, the UCP expressly refers to an electronic address. Where the credit requires or permits presentation of electronic records, their place of presentation will typically be to an electronic address and not a physical one.
However, the credit may require that the electronic record be contained on a portable storage medium, in which
case the electronic record may be presented to a physical address. Although there is no specific definition within the eUCP, the term ‘electronic address’ signifies the precise electronic location or proprietary system to which an electronic record can be sent. It could include, inter alia, a URL, an email address, or an address on a dedicated system.
“PLACE FOR PRESENTATION”—ELECTRONIC ADDRESS.
While, at this stage, there are no recommended minimum standards surrounding ‘electronic address’, the below should be taken into account:
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> Needs to identify the precise electronic location or a proprietary system to which an electronic record can be presented. This can include but is not restricted to, a URL, an email address, or an address on a dedicated system.
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> Should be stated in the terms of the eUCP credit.
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> A bank may be open for business but is unable to receive an electronic presentation. To lessen the impact of such electronic closure, banks should have backup systems in place and may wish to indicate alternative electronic addresses for specific transactions.
“PRESENTER”.
As stated in the ‘Commentary on UCP 600’ (ICC Publication No. 680), the term ‘presenter’
was introduced into UCP 600 to better define the party that actually makes a presentation of documents to
the bank and to reference the party that presents the documents. This is equally applicable to the eUCP.
“SIGN”.
The eUCP adds ‘electronic signature’ to the meaning of the term ‘sign’ or its variants as used in UCP 600 or in the credit in connection with an electronic record presented under the eUCP. A signature identifies the person assuming responsibility for the document and indicates some form of assent to its content. Signatures are regarded as adding assurance of authenticity to a document and of the veracity of the representations contained in it.
By signing a document, the person signing is personally engaged to some extent in a moral, if not a legal, sense,
in what the document represents. It is expected that certain documents will be signed notwithstanding the absence of
a specific requirement in the credit. While UCP 600 does not specifically define the meaning of a signature, UCP 600 article 3 (Interpretations) highlights that ‘a document may be signed by handwriting, facsimile signature, perforated signature, stamp, symbol, or any other mechanical or electronic method of authentication.’
In contrast, the eUCP does define an electronic signature as ‘a data process attached to or logically associated
with an electronic record and executed or adopted by a person in order to identify that person and to indicate
that person’s authentication of the electronic record.’ In order to have validity under local law, it is often necessary
for certain paper documents to be signed. Some laws also define terms such as ‘sign’ and ‘signature’.
This has advanced further in recent times with the formulation of electronic commerce laws, which now address electronic records and their method of authentication. As such, and in order to remain in line with existing law,
most electronic commerce laws include definitions for terms such as ‘sign’ and ‘signature’. It is important to note
that the eUCP takes a technology-agnostic view with respect to the type of technology that may be used in this respect.
“SUPERIMPOSED”, “NOTATION”, OR “STAMPED”.
The eUCP uses the terms ‘superimposed’, ‘notation’, and ‘stamped’ to describe the addition of information to an electronic record after it has been created. The rules highlight that the terms only have meaning when their supplementary nature is apparent in the relevant electronic record.
“DATA CORRUPTION”.
Data can be corrupted after having been received from the presenter or in transmission. As a result, there could be a degree of unease regarding the possibility of the loss of data by a bank after an electronic record has been presented. Any problem with the record prior to receipt is the responsibility of the presenter whose obligation is to present the data to the place of presentation in the format required by the credit.
“DATA PROCESSING SYSTEM”.
The term ‘Data processing system’ means a computerized or an electronic or any other automated means used to process and manipulate data, initiate an action, or respond to data messages or performances in whole or in part.
The rules do not provide guidelines on required data processing systems and focus principally on the electronic presentation of documents. As with all ICC rules, they cannot mandate which platforms/systems are acceptable; the rules must remain neutral in this respect.
DATA PROCESSING SYSTEM”—MINIMUM REQUIREMENTS.
While, at this stage, there are no recommended minimum standards surrounding data processing systems, the below may be useful as a guide:
> Any bank that engages in an eUCP transaction is responsible for maintaining a data processing system.
This responsibility is a fundamental precondition for using the eUCP in order to ensure relevance.
> Represents a computerized or an electronic or any other automated means that is used to process and manipulate data, initiate an action, or respond to data messages or performances in whole or in part.
> Capable of processing electronic records in the format agreed by all parties to a transaction.
> Capable of receiving, identifying, authenticating, and responding to electronic records.
> Capable of performing minimal functions of authentication that are considered commercially acceptable.
“ELECTRONIC RECORD”.
In electronic commerce, data is grouped together into a unit. Although these units are often provided with designations such as ‘messages’, ‘files’, and ‘documents’, the term ‘electronic record’ has emerged as a common label to identify a grouping of data in one message, file, or document and to distinguish it from a paper document. A digital record is one that exists in digitised form only, whereas an electronic record may also encompass a copy of an original document that is stored in electronic form, e.g. a scanned copy.
The eUCP definition of ‘electronic record’ does appear to include a digitized record (‘data created...by electronic means’) but is broader than that. Under an eUCP credit, documents can consist of both paper documents and electronic records but must consist of at least one electronic record. Although there is no definition of ‘electronic’ in the eUCP, such a term would, by its nature, exclude paper documents. It is essential to also note that by using the generic term ‘electronic’, the rules avoid linkage with any specific technology or platform, thereby ensuring that the rules remain technology-agnostic.
The term ‘electronic’ has generally been distinguished from imaging, which involves a different process. However, in modern times, the distinctions have become blurred. It was once thought that scanned images could not be electronic records both for technological reasons and because there was an original paper document that generated the scanned image. With technological advances, it is possible to generate a scanned image on a computer and send it to another computer as an image. As a result, it is impossible to categorically determine whether or not a scanned image is an electronic record. If the issuing bank specifies the format of required or permitted electronic records, the problem will be avoided.
Such a specification is especially important when document examination is automated since it would be difficult to use a system to determine all of the required data elements from an image. If it does not do so, the presenter would probably be justified in presenting required electronic records by means of scanned images and it would remain with the issuing bank to convince a court that they were not electronic records. Provided a document is presented in the format stipulated in the eUCP credit, such document constitutes an electronic record.
If the issuing bank states a specific format for a document to be presented under an eUCP credit and it is not a paper document, the document should be regarded as an electronic record for purposes of interpreting the eUCP.
“ELECTRONIC RECORD”—CAPABLE OF BEING EXAMINED.
The eUCP requires that, in order to qualify as an electronic record for purposes of the eUCP, data must be capable of being examined. This requirement is intrinsically linked with the requirement in eUCP article e5 (Format) that the issuing bank specify the required format. If it does so, then data sent in that particular format is automatically assumed to be capable of being examined. Accordingly, the requirement that data be capable of being examined is only relevant when the issuing bank does not actually specify a format. In such circumstance, the presenter may send the data in any format, but must still ensure that it be capable of being examined. The presenter would not be able to claim that the presentation was effective if what was sent could not be read.
“ELECTRONIC RECORD”—DATA PROCESSING SYSTEM.
Although banks are not obligated to issue or act on credits subject to the eUCP, they are required to maintain a data processing system for the receipt, authentication, and identification of electronic records. Such a system need not be state of the art, but it should be capable of performing those minimal functions of authentication considered commercially acceptable. Given the rapid pace of technological development, maintaining such standard will require regular review, analysis, and investment as techniques evolve. In any event, it is assumed that this is a natural process for any bank involved in international trade.
UNIVERSAL TIME COORDINATED.
During the course of the drafting of the rules, it was considered whether or not the eUCP should incorporate the concept of UTC, as referred to in the Uniform Rules for Bank Payment Obligations (URBPO), in order to define the latest time that electronic records could be presented to a bank. However, there was no definitive majority response. As such, an issuer would be well advised to state the time for the ‘close of business’ in an eUCP credit. In view of the fact that practice is still evolving in this field, it was recommended that the UTC concept would not, at this stage, be included within the eUCP rules. Should it be deemed necessary, the concept could be included in a future version of eUCP.
“ELECTRONIC SIGNATURE”.
The eUCP defines ‘electronic signature’ as data attached to an electronic record with the intent of identifying the signer and authenticating the record. As provided in the rules, signatures on required documents perform two separate functions in documentary credit practice: indicating the identity of the person signing and authenticating the document itself and the information contained in it. An electronic signature in an electronic record can take place by indication of the name of the signer, a code, key, or acceptable digital signatures, and public key cryptography given in a manner that appears to be intended to authenticate.
While the method of authenticating the document differs when it is electronic, ‘signing’ an electronic message serves
the same functions as does signing a paper document. Current and evolving technology allows for numerous commercially reasonable techniques for digital signatures.
The eUCP does not contain any substantive requirement that an electronic record contain an electronic signature.
The only reference to ‘electronic signature’ is contained in the explanation of ‘sign’ in eUCP sub-article e3 (a) (v), which indicates that the term as it appears in UCP 600 also includes an electronic signature. UCP 600 article 3 highlights that
‘a document may be signed by handwriting, facsimile signature, perforated signature, stamp, symbol, or any other mechanical or electronic method of authentication’; this also applies to the eUCP. The reference to ‘electronic signature’ will impact those documents that require signing under UCP 600, documentary credit practice, or the terms of the credit. The eUCP requires that the data consisting of the electronic signature be attached to the electronic record or closely associated with it. In most cases the electronic signature is enclosed in the envelope of the message or embedded within the electronic record itself.
It must be associated with the message in such a manner as to indicate the identity of the signer. The reference in eUCP to the association or connection of the data with the electronic record in order to identify the signer and authenticate the record and its content goes only to the appearance of connectedness that can be implied from examining the electronic record on its face and not to the actual intention of the signer.
“ELECTRONIC SIGNATURE”—LOCAL LAW.
Local law may contain requirements that certain documents be signed in order to be effective. Such law often defines the terms ‘sign’ or ‘signature’. One facet of the evolution of electronic commerce has been the extension of such laws to embrace electronic documents and to permit such documents to be authenticated in a manner that links with the nature of the document.
As a result, many electronic commerce laws contain a definition of these terms. Caution should be exercised in references to electronic signatures in law and practice to distinguish between a relatively simple ‘electronic signature’ and one with added precautions. The latter has commonly been called a ‘digital signature’ for purposes of differentiation. When local law adopts the more restrictive notion of a digital signature, it may impose a requirement on an electronic signature not definitively contained in UCP 600, eUCP Version 2,0, or the credit itself. Where the law is not that of the issuing bank, UCP 600 sub-article 37 (d) (Disclaimer for Acts of an Instructed Party) shifts any risk to the applicant. Unless the credit specifically provides, the use of the term ‘electronic signature’ in the eUCP does not signify the requirement that any signature be by means of digital signature.
“ELECTRONIC SIGNATURE”—MINIMUM REQUIREMENTS.
While, at this stage, there are no recommended minimum standards surrounding electronic signatures, the below may be useful as a guide:
> Capable of identifying the sender of an electronic record and indicating that person’s authentication of the electronic record.
> Capable of associating the sender of an electronic record with the content of the electronic record.
> The definition for ‘electronic signature’ in the eUCP is intended to be technology neutral and not to endorse any specific technology: the technology is to be separately agreed by the parties involved in a specific transaction.
> Take into account the function of signature requirements in a given statutory and regulatory environment.
> Determine the sophistication of the data processing system used by each of the parties.
> Ensure compliance with trade customs and practice.
> Ensure compliance with any relevant authentication procedures set forth by intermediaries.
> The degree of acceptance or non-acceptance of the method of identification in the relevant industry or field both
at the time the method was agreed upon and at the time when the data message was communicated.
“FORMAT”.
The eUCP defines ‘format’, a concept vital to the examination of electronic records. At the time of writing, there is no uniform or standard system by which data is organised, nor does there exist a common protocol by which data can be read or identified by data processing systems. As a result, it is only readable if the data processing system is able to recognise the manner in which the data is organised, or its format. Not every data processing system can recognise every format into which data can be organised.
Moreover, with the fast pace of technological development, many systems of organisation are regularly issued in successive versions. It is typical that the later versions are able to read earlier ones but that earlier ones are not able to read later ones.
The term ‘format’ is used in several senses. It can mean the protocol by which data is organised, the version of that format, or the shorthand name by which that protocol is recognised and described. There is no precise distinction between these approaches, and the manner in which it is intended they be used can normally be identified
from the context in which they are used. Under the eUCP, the burden is on the issuing bank to indicate, with sufficient specificity, the format in which it desires data in the electronic record to be arranged.
The importance of a format lies in the ability of a data processing system to process data. If the format is not one that is recognised by the data processing system, the output is meaningless and said to be ‘unreadable’. This term implies that the data processing system cannot properly format the data in a manner that would provide meaning to a reader.
“PAPER DOCUMENT”.
The eUCP refers to a document in a paper medium, the type of document which is expected
to be presented under UCP 600. By broadening the meaning of the term ‘document’ as it is
used in UCP 600 and in eUCP, it became necessary to identify another term that permitted the distinction between paper and electronic records for the eUCP. The term ‘paper document’ was chosen because it aptly and simply describes
the traditional medium in which data was inscribed. Printout from a computer, if presented, would be a paper document, whereas the presentation of a portable storage medium would not be. Consequently, the explanation of the sense
in which the term ‘paper’ is used resorts to a reference to the ‘paper form’ in which the term was used and understood.
“RECEIVED”.
This eUCP sub-article defines ‘received’ when used with respect to an electronic record. Receipt is critical in documentary credit presentations. Documents are not presented until they are received. It is possible to speak in terms of the receipt of a particular document or of a presentation.
In respect of paper documents when they are presented in one lot, the two notions occur simultaneously.
With respect to the presentation of paper, a paper document is ‘received’ when it comes into the control of the bank.
This step can occur when it is delivered to a person or to the mailroom. Once the document comes into the bank’s control, presentation has taken place and the bank assumes the risk of loss of the document.
Delivery of an electronic record will commonly be made electronically to the bank’s data processing system, so that
the element of passing into the bank’s control is still present. There is however an additional element, namely that in order to meet the requirements of presentation, the electronic record can be authenticated.
There is an additional difference between receipt under presentation under UCP 600 and the eUCP, namely that
the receipt of a paper document required by the credit constitutes presentation under the UCP 600, whereas receipt of
a document, whether a paper document or electronic record, does not constitute presentation until the notice of completeness is received under the eUCP. Computer systems will, on occasion, automatically send out an acknowledgment to the sender that a message has entered the system. Such an acknowledgment does not necessarily imply that the electronic record has been received in the technical sense used in the eUCP since authentication may not have occurred at that time.
In the event of a dispute about whether an electronic record was received, it could be a factor for which the significance would have to be assessed under local law.
“RE-PRESENT” OR ‘RE-PRESENTED”.
The terms ‘re-present’ or ‘re-presented’ mean to substitute or replace an electronic record already presented.
eUCP article e12 (Data Corruption of an Electronic Record) uses the term ‘re- presented’. In this context, the term means to substitute or replace—at the request of a nominated bank—an electronic record already presented. The term is also used in documentary credit practice to characterise the action of the presenter in making a subsequent presentation
to cure a discrepant prior presentation. The two actions should not be confused. Under the eUCP, the re-presentation
is merely the replacement of a document already presented and its effect relates back to when it was originally presented; whereas when a non-conforming presentation is being cured by re-presentation, it takes effect as of the time of receipt of the re-presentation.
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