Fraud in Letters of Credit under English Law: Issues and Cases (the Three Dimensions)

According to many cases, it has been demonstrated that sellers with bad intentions have manipulated letters of credit system in many ways, including fraud. Thus, many legal jurisdictions have recognized the fraud exception rule. In order to apply such exception, some conditions must be met. Among these conditions, the bank’s knowledge and a requirement of a clear evidence. Notably, the bank’s knowledge is crucial, meaning that the establishment of the sole exception will depend upon the status of the bank’s knowledge. Meaning that if the bank is aware of existing fraud, it is under a duty to refuse presentation. Otherwise, it should not. In turn, the establishment of clear evidence by the English courts is somewhat hard to achieve, consequently, such condition criticized often. Further, if the beneficiary himself commits the fraud, or has knowledge of the fraud, then the fraud exception rule will apply.1 This raises the question of whether the fraud exception should also bite where the fraud is committed by a third party but without the beneficiary’s knowledge. From these facts, this chapter will try to analysis the status of the bank’s knowledge and the hardship related to the clear evidence requirement in conjunction with the third-party fraud.

Legal basis for the fraud exception in letters of credit under English Law

Purpose This paper aims to analyse the status of the bank’s knowledge and the hardship related to the clear evidence requirement with regard to establish the fraud exception rule in English courts. Design/methodology/approach Traditional analysis method and critical legal thinking. Findings To trigger such an exception in England, two conditions, bank’s knowledge and clear evidence, must be met to establish the fraud rule, which will be applied only if it appears in documents. The bank’s knowledge condition, the awareness of the fraud that the bank should have before the payment, is material to determine whether if the fraud rule will trigger in most of the English cases. However, if the bank is not aware of the fraud, they must honour the credit if the documents are compliant, meaning the paying bank is protected if the documents against which it made payment are tainted with fraud, even if it is not aware of the fraud. Moreover, it is not a bank’s responsibility to investigate allegations of fraud. Nonetheless, there are some reservations regarding the bank’s knowledge and clear evidence conditions, as explained above. In short, such an approach does not lead to fairness and justice for the applicant. Originality/value English courts focus more on evidence of the fraud rather than making unnecessary distinctions pertinent to the fraud exception scope. The absence of such evidence will not trigger the exception rule. Conversely, injunctions are not easily granted in England where the requirement for heavy evidence and proof of the bank’s knowledge will be obstacles. That is to say, banks are more protected in England simply because the courts want to uphold the integrity of the banking system when affirming the autonomy principle. In a case where the applicant becomes aware of the fraud, there is no other option for the applicant except to ask for an injunction from the court, which is not easy to gain under English courts. In addition, it is unclear how the court will prove that the bank is aware if there is fraud in the presented documents. In addition, the question arises as to whether the same strict standard will be required by both the applicant and the party who notified the fraud.

The Study of Export-Import Logistics Operation Competence of Thai Employee for Asian Economic Community

This research was conducted to support the opening of the Asian Economic Community through the import-export logistic management operation of Thai employee competence. This approach is an innovative concept in Thailand with regards to the application of standard practices for occupation competency in logistic industries. This is the first time of Thai employee competency standard measurement. This can be ensured by obtaining a qualification test and certification from The Institute of Thailand Professional Qualification Standard Institute. Export-import’s competency standard collected by using focus groups from top management and expertise employees in terms of export and import operation.The research objective is to identify the standard competence of workers for export and import custom operation with the standard practice in terms of the entrepreneurial requirements. Furthermore, export and import competency standard be practiced for internationally as ISO 17024 standardization. As well as export and import operation standards with AEO international operations for the Asian Economic Community in 2016.The research scope of the study related to custom clearance and custom broker employee in term of standard of occupation competency by using the Functional Analysis, Functional Map which consists of Key Purpose, Key Role and Key Function in relation to the unit of competence which consists of Element of competency, Performance Criteria, Range Statement, Evidence Requirement and Assessment Guidance and setting the competency level form for each career.Keywords: Competency Standard, Professional Qualification, Export-Import, Logistic Operation, Competence, Custom Broker

Reconciling public opinion and WTO rules under the SPS Agreement

The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) allows Members to enact SPS measures necessary to protect health so long as they are based on scientific evidence. This scientific evidence requirement has attracted controversy among academics, policy-makers, and civil society. The argument has been advanced that the requirement inappropriately excludes the consideration of public opinion in the domestic risk regulatory decision-making process. The article addresses the question of whether it is possible to reconcile the SPS Agreement's requirement for scientific evidence with concerns regarding exclusion of the public voice in the domestic regulatory process. It responds positively to this query, subject to certain caveats to ensure that trade liberalization goals are not undermined. It argues that the scientific evidence requirement is not only the most appropriate means available for advancing the SPS Agreement's objectives, but that it provides countries with more flexibility than critics contend, including to respond to public sentiment in cases of scientific uncertainty. Recommendations are made as to how panels and the Appellate Body should proceed in disputes under the SPS Agreement, and how governments can comply with their trade obligations while remaining responsive to public concerns.