Stand-by Letters of Credit (SBLCs)& Bank Guarantees (BGs)!!

Standby Letters of Credit (SBLCs) and Bank Guarantees (BGs) are financial instruments typically used in international trade and other large scale, complex projects to ensure contractual obligations are met. Despite their distinct characteristics, both serve the crucial purpose of providing assurance to the parties involved in a transaction.

1. Standby Letters of Credit: A standby letter of credit (SBLC) is a legal document that guarantees a bank's commitment of payment to a seller in the event that the buyer–or the bank's client–defaults on the agreement. A standby letter of credit helps facilitate international trade between companies that don't know each other and have different laws and regulations.
2. Bank Guarantees: A bank guarantee is a promise from a bank or a financial institution that if a particular borrower defaults on a loan, the bank will cover the loss. The bank guarantee signifies that the lending institution ensures that the liabilities of a debtor will be met.

While these instruments are typically not intended to be traded, they can be and are sometimes used in a manner similar to a tradable security. However, trading of BGs and SBLCs is a niche activity and mostly done in secondary markets. Here's a brief overview of how the trading process typically works:

1. Origination: A BG or SBLC is issued by a bank on behalf of its client, who is providing the instrument as a guarantee for a particular transaction. The instrument specifies the terms and conditions under which the bank will make payment on behalf of its client and is sent per SWIFT MT760 to the recipient.?
2. Due Diligence: Prior to a transaction, extensive due diligence is conducted to verify the authenticity of the BG or SBLC. This includes confirmation of the instrument directly with the issuing bank.
3. Transfer Agreement: Once all due diligence has been completed, a transfer agreement is executed between the seller and buyer of the BG or SBLC. The agreement specifies the terms of the transaction, including the price and transfer process.
4. Payment and Transfer: Upon execution of the transfer agreement, the buyer makes payment as agreed, and the BG or SBLC is transferred to the buyer. The transfer is completed by the issuing bank, which updates its records to reflect the new beneficiary of the instrument.

Investment Banks, who specialize in BGs and SBLCs help facilitate transactions between parties who wish to buy and sell these instruments and will normally ask the BGs or SBLCs to be issued with an ISIN to ensure tradability in the secondary market. These banks must understand the complex nature of these instruments and the legal and compliance requirements involved in their transfer.

It's important to note that the trading of these instruments is fraught with risks, including the risk of fraud. This market is lightly regulated, and the instruments themselves are often complex and difficult to understand. As such, it's strongly recommended that any party considering engaging in such transactions seek the advice of a financial advisor or attorney who specializes in this area. Moreover, these transactions are typically large in size and only suitable for sophisticated investors or institutions. They are not suitable for small retail investors.

The trading of bank guarantees and standby letters of credit is regulated by several guidelines, including the International Standby Practices (ISP98) issued by the International Chamber of Commerce (ICC). The ISP98 reflects the accepted practices, customs, and usages of standby letters of credit and provides separate rules for these instruments, similar to the Uniform Customs and Practice for Documentary Credits (UCP) and the Uniform Rules for Demand Guarantees (URDG) for commercial letters of credit and independent bank guarantees.?

Standby letters of credit can serve various functions and can be classified descriptively based on their role in the underlying transaction. Examples include:

• Performance Standby: Supports non-monetary performance obligations, including those arising from the applicant's default in completing the underlying transactions.
• Advance Payment Standby: Supports the obligation to account for an advance payment made by the beneficiary to the applicant.
• Bid Bond/Tender Bond Standby: Supports the applicant's obligation to execute a contract if the applicant is awarded a bid.
• Counter Standby: Supports the issuance of a separate standby or other undertaking by the beneficiary of the counter standby.
• Financial Standby: Supports a monetary obligation, including an obligation to repay borrowed money.
• Direct Pay Standby: Supports payment when due of an underlying payment obligation typically in connection with a financial standby without regard to a default.
• Insurance Standby: Supports an insurance or reinsurance obligation of the applicant.
• Commercial Standby: Supports the applicant's obligations to pay for goods or services in the event of non-payment by other methods.

The ISP differs from the UCP in style and approach to accommodate a broader range of stakeholders involved in standby law and practice. This includes not just bankers and merchants but also corporate treasurers, credit managers, rating agencies, government agencies, regulators, and indenture trustees, as well as their counsel. Standbys are often intended to be available in the event of disputes or applicant insolvency, necessitating detailed scrutiny of their texts. The ISP provides guidance to lawyers and judges in interpreting standby practice and provides clear and widely accepted answers to common problems.?

To apply the ISP to a standby, the undertaking should include language such as "This undertaking is issued subject to the International Standby Practices 1998" or "Subject to ISP98." The ISP provides neutral rules acceptable in most situations and a useful starting point for negotiations in other situations. It can save parties, including banks that issue, confirm, or are beneficiaries of standbys, considerable time and expense in negotiating and drafting standby terms.?

The ISP is designed to be compatible with the United Nations Convention on Independent Guarantees and Stand-by Letters of Credit and local law, whether statutory or judicial. It embodies standby letter of credit practice under that law. If these rules conflict with mandatory law on issues such as assignment of proceeds or transfer by operation of law, applicable law will control. Nonetheless, most of these issues are rarely addressed by local law, and progressive commercial law will often look to the practice recorded in the ISP for guidance in such situations, especially with respect to cross-border undertakings.?

The ISP can also be used in arbitration as well as judicial proceedings, such as the expert-based letter of credit arbitration system developed by the International Center for Letter of Credit Arbitration (ICLOCA) Rules or general commercial ICC arbitration or with alternative methods of dispute resolution.

Differences between BGs and SBLCs

The distinction between a Bank Guarantee (BG) and a Standby Letter of Credit (SBLC) lies primarily in their purpose and the nature of the guarantee they offer, though they are both used in international trade transactions to provide security and reduce the risk of non-payment.

1. Nature of Guarantee:

• Bank Guarantee (BG): This is a broader type of financial instrument issued by a bank, providing a guarantee of performance or payment. The bank guarantees that if the applicant (the one who requests the BG) fails to fulfill their contractual obligations, the bank will cover the loss. This makes it a guarantee of performance, ensuring the completion of contractual obligations.
• Standby Letter of Credit (SBLC): An SBLC, on the other hand, is primarily a guarantee of payment. It's a document issued by a bank guaranteeing the payment of a specific amount of money to a seller if the buyer defaults on the agreement. This is typically used as a payment of last resort and is not intended to be used as a primary method of payment.

2. Usage Context:

• BGs are often used in situations where there is a need to guarantee the performance or commitment of a party. For example, in construction contracts, a BG might be used to ensure that the contractor completes the project as per the agreed terms.
• SBLCs are frequently used in international trade transactions to ensure payment, especially in cases where buyers and sellers are unfamiliar with each other or operate in different countries with different laws and regulations.

3. Parties Involved:

• In a BG, there are usually two parties involved: the applicant and the beneficiary.
• In an SBLC, there are typically three parties: the applicant, the issuing bank, and the beneficiary.

4. Payment Conditions:

• In an SBLC, payment is made only when the applicant fails to fulfil their obligations under the underlying contract.
• In a BG, payment may be made even if the applicant has not yet failed to fulfill their obligations under the contract.

5. Types: Both BG and SBLC can be categorized into different types such as Performance, Financial, Advance Payment, etc., based on their specific use in the underlying transaction.

6. Regulatory Framework:? The trading of BGs and SBLCs is regulated by several guidelines, including the International Standby Practices (ISP98) issued by the International Chamber of Commerce (ICC) for SBLCs, and the Uniform Rules for Demand Guarantees (URDG) for independent bank guarantees. Each of these instruments has its unique characteristics and is suited to specific types of financial transactions, making the choice between a BG and an SBLC dependent on the specific requirements of the transaction involved.

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