استقلال ضمانت نامه بانكي و آثار آن در حقوق تجارت بين الملل

The Independence of Bank Guarantees and its Implications in International Trade Law

Independent bank guarantees and their American equivalent, standby letters of credit, are a relatively new legal phenomenon. Their paramount function is the furnishing of security for contractual obligations. The chief characteristic feature of the modem multi-party gurantee is their independence (or autonomy) from the principal contract which comprises two aspects: firstly the payment obligations of the bank and the beneficiaryʹs rights to payment are to be determined by reference to the terms and conditions as stated in the guarantee and not by reference to the underlying relationship. Secondly, the relationship between bank and beneficiary is not affected by the (mandate) relationship between bank and account party: Accordingly the bank must pay and only pay if the terms of the guarantee have been met and it cannot raise defences which emanate from the underlying relationship in a way a surety (accessory guarantor) could. In order to be entitled to payment by way of compensation, the beneficiary merely has to present documents as specified in the guarantee (documentary nature of payment conditions) and need not show default in any other way. The principle of independence is limited by exeption of fraud. The duty of - the bank is the examination of formal compliance of these documents with conditions of the guarantee.