Deutsche Bank AG, London Branch v CIMB Bank Berhad

Under UCP 600, the 21-day presentation period applies unless the credit expressly provides a different effect. No particular formula or reference to the relevant article is required. An express term is sufficient where it is irreconcilably inconsistent with the UCP rule.

A term stating that documents must be presented within the validity of the credit can replace the 21-day period and allow presentation up to expiry. In construing documentary credits, the court must identify the effect of the language actually used. Field conventions and alleged banking practice do not displace clear wording. A company stamp may constitute a signature where, on the face of the document, it operates as an authenticating mark.

Deutsche Bank, as confirming bank, claimed reimbursement from CIMB, as issuing bank, under documentary letters of credit financing Indian cotton transactions. The parties agreed that 23 claims could be determined by reference to one representative documentary tender.

CIMB alleged two discrepancies: first, that document 7 was not a copy of a signed original; and secondly, that the documents were presented more than 21 days after shipment. The issues depended principally on construction of the credit terms, including the incorporated UCP 600, and on the effect of the wording in Field 48 of the SWIFT message: documents to be presented within letter of credit validity.

1. Document 7. The document appeared on its face to be the type of registration certificate required by the credit. Under UCP 600 article 3, a stamp, symbol or other mechanical method of authentication may constitute a signature. The AQSIQ company stamp appeared to have been applied as an authenticating mark. CIMB therefore failed to establish that the document was unsigned.

2. The alleged international banking practice that a stamp must contain handwritten or embossed initials was unsupported. The relevant ISBP 745 provisions and ICC Banking Commission opinion R718 supported the conclusion that a stamp used as an authenticating mark could suffice. Opinion R599 did not establish a universal rule to the contrary; its statement had to be understood in the context of corrections and alterations.

3. Late presentation. Article 14(c) of UCP 600 requires presentation within 21 calendar days after shipment and, in any event, before expiry, unless the credit provides a different effect. Article 1 does not require a particular form of words or an express reference to article 14(c). Following Forestal Mimosa Ltd v Oriental Credit Ltd and Fortis Bank SA/NV & Anor v Indian Overseas Bank, the question was whether the express term was irreconcilably inconsistent with the UCP rule.

   Field 48 defined the presentation period as running from shipment until expiry. That was distinctly different from the default 21-day rule and was therefore effective to modify it. The tender was within time. The SWIFT field designation, the absence of a numerical day period, the earlier amendment concerning document dates and the expiry date itself did not alter that conclusion.

4. The claims succeeded. Judgment was entered for US$9,959,452.57 before interest. Interest, costs and consequential matters were left for further determination.