The determination of an "Original" document in the context of UCP 500 sub-Article 20(b

Commission on Banking Technique and Practice, 12 July 1999 This Decision emphasizes the need to correctly interpret and apply sub-Article 20(b) of UCP 00! Conse"uently# $CC national committees and associated or%anizations are stron%ly ur%ed to distribute this Decision as &idely as possible to help ensure the correct interpretation in the e'aluation of documents issued under letters of credit! This Decision does not amend sub-Article 20(b) of UCP 00 in any &ay# but merely indicates the correct interpretation thereof &hich has been adopted unanimously by the $CC Commission on (an)in% Techni"ue and Practice on *2 +uly *,,,! !" #ac$ground -'er a period of se'eral years there ha'e been a number of "ueries raised &ith the $CC (an)in% Commission as to the determination# by ban)s# of &hat is an .ori%inal. document under a letter of credit and the necessity# if any# for such a document to be so mar)ed! /or ease of reference the te0t of sub-Article 20(b) reads1.Unless other&ise stipulated in the Credit# ban)s &ill also accept as an ori%inal document(s)# a document(s) produced or appearin% to ha'e been produced1 by repro%raphic# automated or computerized systems2 as carbon copies2 pro'ided that it is mar)ed as ori%inal and# &here necessary# appears to be si%ned! A document may be si%ned by hand&ritin%# by facsimile si%nature# by perforated si%nature# by stamp# by symbol# or by any other mechanical or electronic method of authentication!. 2" %etermination of Originalit& $n documentary credit operations# the document chec)er is faced &ith a number of issues pertainin% to ori%inality includin%1 Apparent ori%inality (an)s underta)e to determine &hether a document appears on its face to be an ori%inal document# as distin%uished from a copy! 30cept as e0pressly re"uired by a letter of credit includin% an incorporated term - such as UCP 00 sub-Articles 24(a)(i') or 45(b) - ban)s do not underta)e to determine &hether an apparent ori%inal is the sole ori%inal! (an)s rely on the apparent intent of the issuer of the document that it be treated as an ori%inal rather than a copy! $n this re%ard# a person sendin% a telefa0 or ma)in% a photocopy on plain paper or pressin% throu%h carbon paper presumably intends to produce a copy! -n the other hand# a person printin% a document on plain paper from a te0t that that person created and electronically stored presumably intends to produce an ori%inal! Accordin%ly# documents bearin% facsimile si%natures or printed in their entirety (e'en includin% the issuer6s letterhead and7or si%nature) from electronically stored te0t are presumably intended by the document issuer to be ori%inal and in practice are accepted by ban)s as ori%inal! Documents that appear to be ori%inal but are not (an)s do not underta)e to determine &hether a document is ori%inal in fact! Under UCP 00 Article * # ban)s are not responsible for the %enuineness or falsification of any document! $f a document appears to be ori%inal or to ha'e been mar)ed as ori%inal but is in fact not ori%inal# then its presentation may %i'e rise to e0ceptional defences# ri%hts# or obli%ations under the la& applicable to for%ed or fraudulent presentations and is beyond the scope of UCP 00! UCP 00 re"uirements1 (*) The UCP neither re"uires nor permits an e0amination beyond the face of a document to determine ho& the document &as in fact produced# unless the document &as produced by the ban)# e!%! on a telefa0# tele0# e-mail# or other system that prints out messa%es recei'ed by the ban)! The .produced

or appearin% to ha'e been produced. lan%ua%e in sub-Article 20(b) does not o'erride UCP 00 subArticles *4(a)# *4(c)# or *5(b)# or other practice and la& that prohibit issuers and confirmers from determinin% compliance on the basis of e0trinsic facts! (2) As indicated by inclusion of the &ord .also. (. !!! ban)s &ill also accept as ori%inal(s) !!!.)# subArticle 20(b) is neither comprehensi'e nor e0clusi'e in its pro'isions that distin%uish ori%inals from copies! /or e0ample# a document printed on plain paper from electronically stored te0t is acceptable# &ithout re%ard to 20(b)# if it appears to be an ori%inal! (4) 8ub-Article 20(b) does not apply to documents that appear to be only partially produced by repro%raphic# automated# or computerized systems or as carbon copies! $n this re%ard# a photocopy ceases to be .repro%raphically produced. &ithin the meanin% of sub-Article 20(b) &hen it is also manually stamped# dated# completed# or si%ned by the issuer of the document! (5) The .mar)ed as ori%inal. pro'iso in sub-Article 20(b) is satisfied by any mar)in% on a document or any recital in the te0t of a document that indicates that the issuer of the document intends it to be treated as an ori%inal rather than a copy! Accordin%ly# a document that appears to ha'e been printed on plain paper from electronically stored te0t is .mar)ed as ori%inal. under sub-Article 20(b) if it also states that it is ori%inal or includes letterhead or is hand mar)ed! 8ub-Article *4(a) of UCP 00 refers to compliance of the presented documents bein% determined by international standard ban)in% practice as defined in the articles of UCP! $nternational standard ban)in% practice in relation to determination of .ori%inal. documents could be described as follo&s1 '" Correct (nter)retation of *ub-Article 20(b 4!* 9eneral approach! (an)s e0amine documents presented under a letter of credit to determine# amon% other thin%s# &hether on their face they appear to be ori%inal! (an)s treat as ori%inal any document bearin% an apparently ori%inal si%nature# mar)# stamp# or label of the issuer of the document# unless the document itself indicates that it is not ori%inal! Accordin%ly# unless a document indicates other&ise# it is treated as ori%inal if it1 (A) a (B) a ears to !e "ritten, ty ed, er#orated, or stam ed !y the document issuer$s hand% or ears to !e on the document issuer$s original stationery% or

(C) states that it is original, unless the statement a ears not to a ly to the document resented (e&g& !ecause it a ears to !e a hotoco y o# another document and the statement o# originality a ears to a ly to that other document)& 4!2 :and si%ned documents! Consistent &ith sub-para%raph (A) abo'e# ban)s treat as ori%inal any document that appears to be hand si%ned by the issuer of the document! /or e0ample# a hand si%ned draft or commercial in'oice is treated as an ori%inal document# &hether or not some or all other constituents of the document are preprinted# carbon copied# or produced by repro%raphic# automated# or computerized systems! 4!4 /acsimile si%ned documents (an)s treat a facsimile si%nature as the e"ui'alent of a hand si%nature! Accordin%ly# a document that appears to bear the document issuer6s facsimile si%nature is also treated as an ori%inal document! 4!5 Photocopies (an)s treat as non-ori%inal any document that appears to be a photocopy of another document! $f# ho&e'er# a photocopy appears to ha'e been completed by the document issuer6s hand mar)in% the photocopy# then# consistent &ith sub-para%raph (A) abo'e# the resultin% document is treated as an ori%inal document unless it indicates other&ise! $f a document appears to ha'e been produced by

photocopyin% te0t onto ori%inal stationery rather than onto blan) paper# then# consistent &ith subpara%raph (() abo'e# it is treated as an ori%inal document unless it indicates other&ise! 4! Telefa0ed presentation of documents (an)s treat as non-ori%inal any document that is produced at the ban)6s telefa0 machine! A letter of credit that permits presentation by telefa0 &ai'es any re"uirement for presentation of an ori%inal of any document presented by telefa0! 4!; 8tatements indicatin% ori%inality Consistent &ith either or both of sub-para%raphs (A) and (C) abo'e# a document on &hich the &ord .ori%inal. has been stamped is treated as an ori%inal document! A statement in a document that it is a .duplicate ori%inal. or the .third of three. also indicates that it is ori%inal! -ri%inality is also indicated by a statement in a document that it is 'oid if another document of the same tenor and date is used! 4!< 8tatements indicatin% non-ori%inality A statement in a document that it is a true copy of another document or that another document is the sole ori%inal indicates that it is not ori%inal! A statement in a document that it is the .customer6s copy. or .shipper6s copy. neither disclaims nor affirms its ori%inality! +" ,hat is not an "Original"A document indicates that it is not an ori%inal if it a ears to !e roduced on a tele#a' machine%

a ears to !e a hotoco y o# another document "hich has not other"ise !een com leted !y hand marking the hotoco y or !y hotoco ying it on "hat a ears to !e original stationery% or states in the document that it is a true co y o# another document or that another document is the sole original& 5" Conclusion (ased upon the comments recei'ed from $CC national committees# members of the $CC (an)in% Commission and other interested parties# the statements in clauses 4 and 5 abo'e reflect international standard ban)in% practice in the correct interpretation of UCP 00 sub-Article 20(b)!