保函实务知识讲解.pptVIP

;;五、非融资保函外管合规操作;CASE 1. 直开保函 （三方保函）; 一、保函文本审查三方保函（直开保函）的结构 (Direct Guarantee）;一、保函文本审查 ;一、保函文本审查 保函所应具备的八大基本要素 ; TO：B （NAME AND ADDRESS ) PERFORMANCE GUARANTEE REF… DEAR SIRS, WHEREAS B （NAME AND ADDRESS ) HAS ENTERED INTO A CONTRACT WITH P （NAME AND ADDRESS ) FOR 100K FWP820 WITH ACCESSORIES, AND WHEREAS P IS REQUIRED UNDER THE CONTRACT TO PROCURE A PERFORMANCE GUARANTEE ISSUED BY AN ACCEPTABLE BANK IN FAVOUR OF B IN SUPPORT OF THE DUE AND PROPER PERFORMANCE OF THE OBLIGATIONS UNDERTAKER BY P IN RESPECT OF THE ABOVE-MENTIONED CONTRACT. THEREFORE, IN CONSIDERATION OF THE ABOVE, WE, ICBC ADDRESS…, HEREBY IRREVOCABLY AND UNCONDITIONALLY GUARANTEE AND UNDERTAKE TO PAY TO B A SUM NOT EXCEEDING USDXXX OR ANY LESSER SUM SPECIFIED BY… …;一、保函文本审查 保函所应具备的八大基本要素:;一、保函文本审查 保函所应具备的八大基本要素:;一、保函文本审查 保函所应具备的八大基本要素:;一、保函文本审查  保函所应具备的八大基本要素:;从属性保函付款承诺 3 Example EX2. …we will pay you on first written demand a sum not exceeding USD10 million in the event of P’s default in performance of its obligations under the above-mentioned contract… Because of the reference to ‘P’s default in performance of its obligations…’ There is a risk that the guarantee will be construed as a surety ship guarantee (which is outside the Rules) despite the phrase ‘on first written demand’. Such references should be avoided, because if they are literally construed they require the guarantor to satisfy itself of the fact of default, whereas in a true demand guarantee the guarantor is concerned only with presentation of documents in conformity with the terms of the guarantee. (ICC comment);从属性保函付款承诺 3 Example EX3. …we will pay on first written demand the amount of any loss you may suffer in connection with the above-mentioned contract up to a maximum of usd10 million… Though there is no reference to default by the principal, this form of guarantee