URDG758

規(guī)則介紹保函定義及分類是指銀行、保險公司、擔(dān)保公司或個人應(yīng)申請人的請求，向第三方開立的一種書面信用擔(dān)保憑證，保證在申請人未能按雙方協(xié)議履行其責(zé)任或義務(wù)時，由擔(dān)保人代其履行一定金額、一定時限范圍內(nèi)的某種支付或經(jīng)濟(jì)賠償責(zé)任。L/G

is

written

undertakingissued

by

a

bank

usuallygiven

to

LG

beneficiaryat

request

ofLG

applicantclaimto

pay

stated

sum

money

to

the

LC

beneficiaryAgainstpresentation

of

documents,

usually

a

defaultprovided

the

terms

&

conditions

of

the

Standby Credit

are

complied

withSubject

to

UCP600

or

ISP98

OR

URDG758/458保函定義及分類獨立保函（見索即付）和從屬保函融資性保函付款保函、融資租賃保函、船舶融資保函、借款保函非融資性保函投標(biāo)、履約、預(yù)付款、質(zhì)量維修保函等來料加工保函、補(bǔ)償貿(mào)易保函、提貨擔(dān)保等Direct

guarantee

and

Indirect

guaranteeDirect

guaranteeApplicantIssuing

bankDirect

GuaranteeAdvising

bank1.

Underlying

transaction

Beneficiary2.Order4.

Advice

order5.

Guarantee

advice3.GuaranteeIndirect

guarantee

ApplicantInstructingIndirect

Guarantee1.

Underlying

transaction

Beneficiary2.Orderbank

3.

Order

and

counter-guGaruanrtaeneteeing

bank4.Guarantee保函業(yè)務(wù)風(fēng)險防范信用風(fēng)險操作風(fēng)險法律風(fēng)險URDG758條款概覽第1條

URDG758的適用范圍第2條 定義第3條 術(shù)語解釋第4條 保函的開立和生效第5條 保函和反擔(dān)保函的獨立性第6條 單據(jù)與貨物、服務(wù)或履約行為第7條 非單據(jù)化條件第8條 指示和保函的內(nèi)容第9條 拒絕接受申請第10條保函或保函修改的通知第11條修改URDG758條款概覽第12條 保函項下?lián)Ｈ素?zé)任的范圍第13條 保函金額的變動第14條 交單第15條 對索償要求的規(guī)定第16條 關(guān)于索償要求的告知第17條 部分索償要求和多次索償要求，索償要求的金額第18條 每一次索償要求的獨立性第19條 審核第20條 審核索償要求的時間，付款第21條 支付的貨幣第22條 相符索償要求副本的傳遞URDG758條款概覽第23條 展期或付款第24條 非相符索償要求，放棄決定和通知第25條 減額與終止第26條 不可抗力第27條 關(guān)于單據(jù)有效性的免責(zé)第28條 關(guān)于傳遞和翻譯的免責(zé)第29條 關(guān)于其他當(dāng)事方行為的免責(zé)第30條 責(zé)任豁免的限度第31條 外國法律和慣例的補(bǔ)償?shù)?2條 關(guān)于費用的責(zé)任第33條 保函的轉(zhuǎn)讓和款項讓渡第34條 管轄法律第35條 司法管轄權(quán)URDG758

Article

1

Application

of

URDGApply

to

any

demandguarantee

or

counter-guarantee

that

expresslyindicates

it

is

subject

to

them,

except

modifies

or

excludesthem.Demand

Guarantee

is

subject

to

the

URDG,Counter

Guarantee

is

also

subject

to

the

URDG.Counter

Guarantee

is

subject

to

the

URDG,Demand

Guarantee

is

also

subject

to

the

URDG?Demand

Guarantee

is

subject

to

the

URDG

excluded

article

X, Counter

Guarantee

is

subject

to

the

URDG

excluded

article

X?modifies

orexcludes?URDG758

Article

1 Application

of

URDGWhere,

at

the

request

or

with

the

agreement

of

theinstructing

party,a

demandguarantee

orcounter-guaranteeis

issued

subject

to

the

URDG,

the

instructing party

isdeemed

to

have

accepted

the

rights

andobligationsexpressly

ascribed

to

it

in

these

rules.URDG

1992

version

or

2010

version?Can

the

URDG

apply

where

not

expressly

incorporated

in

aguarantee?URDG758

Article

2DefinitionsApplicant

means

the

party

indicated

in

the

guarantee

ashaving

it

obligation

under

the

underlyingrelationshipsupported

by

the

guarantee.The

applicant

may

or

may

not

be

the

instructing

party.Instructing

party

means

the

party,

other

than

the

counter-guarantor,

who

gives

instructionsto

issue

a

guarantee

orcounter-guarantee

and

is

responsible

for

indemnifying

theguarantor

or,inthe

case

ofa

counter-guarantee,the

counter-guarantor.The

instructing

party

may

or

may

not

be

theapplicant.Party

v.

BankURDG758

Article

2DefinitionsDemand

guarantee

means

any

signed

undertaking,

howevernamedordescribed,providingforpaymentonpresentationofacomplyingdemand.Structure

of

five-party

guaranteeCanguarantorissueaguaranteeactingforitsownaccount?Instructing

party orapplicantprincipalbeneficiaryguarantorCounter

guartantorURDG758

Article

2DefinitionsPresentation

means

the

delivery

of

a

document

under

aguarantee

to

the

guarantor

or

the

document

so

delivered.

Itincludes

a

presentation

other

than

for

a

demand,

for

example,a

presentation

for

the

purpose

of

triggering

the

expiry

of

theguarantee

or

a

variation

of

itsamount.Document

means

a

signed

or

unsigned

record

ofinformation,

in

paper

or

in

electronic

form,

that

is

capable

ofbeing

reproduced

in

tangible

form

by

the

person

to

whom

itis

presented.

In

these

rules,

a

document

includes

a

demandand

a

supporting

statement.Document

includes

fax

or

e-mail?URDG758

Article

2DefinitionsComplying

presentation

under

a

guarantee

means

a

presentation

that

isin

accordance

with,first,

the

terms

and

conditions

of

thatguarantee,second,

these

rules

so

far

as

consistent

with

those

terms

and

conditions

and,third,

in

the

absence

of

a

relevant

provision

in

the

guarantee

or

theserules,international

standard

demand

guarantee

practice(ISDGP).Complying

demand

means

a

demand

that

meets

the

requirements

of

acomplying

presentation.Complying

presentation

under

UCP600?

Presentation

v.

Demand?URDG758Article

2

DefinitionsInternational

standard

demand

guarantee

practice--ISDGPThis

is

meant

as

a

first

step

to

supplementing

in

the

next

few

years

therevisedURDG

with

a

body

of

codified

standard

practices

similar

to

ISBP

when

ICCfeel

that

Opinions,

DOCDEX

decisions

and

other

position

papers

would

allowto

identify

distinctively

such

a

body

of

standards

in

the

meantime,

it

is

felt

thatthe

new

concept

of

ISDGP

so

for

as

consistent

with

the

URDG

willallowparties

judges

and

arbitrators

more

latitude

in

identifying

solutions

todisputes

while

remaining

within

the

spirit

and

general

principals

of

the

URDG.ISDGP,

a

gap-filler

toURDG.DOCDEX:

ICC

Rules

for

Documentary

Instruments

Dispute

ResolutionExpertise.

19971001.URDG758

Article

2

DefinitionsUnderlying

relationship

means

the

contract,

tenderconditions

or

other

relationship

between

the

applicantand

the

beneficiary

on

which

the

guarantee

is

based.Guarantor’s

own

recordsmeans

records

of

theguarantor

showing

amountscredited

to

ordebitedfrom

accounts

held

with

the

guarantor,

provided

therecord

of

those

credits

or

debits

enables

theguarantorto

identifythe

guarantee

to

which

theyrelate;URDG758

Article

2

Definitionsexpiry

meansthe

expiry

date

or

the

expiry

event

or,

if

both

arespecified,

the

earlier

of

the

two;

expiry

date

means

the

date

specified

in

the

guarantee

on

orbeforewhich

a

presentation

may

be

made;

expiry

event

means

an

event

which

under

the

terms

of

theguaranteeresults

in

its

expiry,

whether

immediately

or

within

a

specified

time

afterthe

event

occurs,

for

which

purpose

the

event

is

deemed

to

occur

only:when

a

document

specified

in

the

guarantee

as

indicating

theoccurrence

of

the

event

is

presented

to

the

guarantor,

orif

no

such

document

is

specified

in

the

guarantee,

when

the

occurrenceof

the

event

becomesdeterminable

from

the

guarantor's

ownrecords.Valid

until

30

days

after

delivery

evidenced

by

cargo

receipt

?URDG758

Article

3

InterpretationBranches

of

a

guarantor

indifferent

countries

are

considered

tobe

separate

entities.a

guarantee

includes

a

counter-guarantee

andanyamendmenta

guarantor

includesa

counter-guarantor

a

beneficiaryincludes

the

party

in

whose

favour

a

counter-guarantee

is

issued.Different

Branches

in

one

country

are

considered

to

be

one?URDG758

Article

3

InterpretationAny

requirement

for

presentation

of

one

or

more

originals

orcopies

of

an

electronic

document

is

satisfied

by

the

presentationof

one

electronic

document.Authenticated

to

an

electronic

document:

i.Able

to

verify

the

apparent

identity

of

thesenderii.Received

Data

remained

complete

and

unalteredElectronic

document

can

be

replaced

by

paperdocument?URDG758

Article

3

InterpretationWhen

used

with

a

date

or

dates

or

aperiodInclude:"

from

",

"

to

",

"

until

",

"till

"

and

"

between

",Exclude:

"before"

and

"after"

,Exclude+

Include:

"

within

".Terms

such

as

"first

class",

"well-known",

"qualified","independent",

"official",

"competent"

or

"local"

when

used

todescribe

the

issuer

of

a

document

allow

any

issuer

except

thebeneficiary

or

the

applicant

to

issue

that

document.URDG758Article

4

Issue

and

effectivenessA

guarantee

is

issued

when

it

leaves

the

controlof

theguarantor.

A

guarantee

isirrevocable

on

issue

even

if

it

does

notstatethis.The

beneficiary

may

present

a

demand

from

the

time

of

issueof

the

guarantee

or

such

later

time

or

even

as

theguaranteeprovided.What

does

“l(fā)eaves

the

control

of

the

guarantee”

mean?URDG758

Article

5Independence

ofguarantee

and

counter-guaranteeA

guarantee

is

independent

ofunderlying

relationship,theapplication.A

counter

guarantee

is

independent

ofguarantee,underlying

relationshiptheapplicationany

other

counter-guaranteeURDG758

Article

6

Documents

v.

goods,services

or

performanceGuarantors

deal

with

documents and

not

withgoods,

services

or

performance

to

whichthe

documents

may

relate.URDG758Article

7

Non-documentaryconditionsA

guarantee

should

specify

a

document

toindicate

compliance

with

thecondition

contained

in

the

guarantee.If

the

guarantee

does

notspecify

any

such

document

andthe

fulfilment

of

the

condition

cannot

be

determined

1.from

the

guarantor’s

own

records,

or

2.from

an

index

specified

in

theguarantee

then

the

guarantor

willdeem

such

conditions

as

not

stated

and

willdisregard

it,

except

for

the

purpose

ofdetermining

datein

adocumentpresented

do

not

conflict

with

data

inguarantee.What

is

an

index?URDG758Article

8

Content

of

instructionsand

guaranteesAll

instructions

should

beclear

and

precise

and

should

avoidexcessivedetail.It

is

recommended

that

all

guarantees

specify:a.

the

applicantb.

the

beneficiaryc.

theguarantord.

a

reference

number

or

other

information

identifying

the

underlyingrelationship;e.

a

reference

number

or

other

information

identifying

the

issuedguaranteeor,

in

thecaseof

acounter-guarantee,

theissued

counter-guarantee;Should

specify

the

instructing

party?URDG758Article

8

Content

of

instructionsand

guaranteesIt

is

recommended

that

all

guarantees

specify:f.

the

amount

or

maximum

amount

payable

and

the

currency

in

which

it

ispayable;g.

the

expiry

of

the

guarantee;h.

any

terms

for

demanding

payment;i.

whether

a

demand

or

other

document

shall

be

presented

in

paperand/orelectronic

form;j.

the

language

of

any

document

specified

in

the

guarantee;

andk.

the

party

liable

for

the

payment

of

any

charges.AND

SO

ON…?URDG758Article

9

Application

not

taken

upWhere,

at

the

time

of

receipt

of

theapplication,the

guarantor

isnot

prepared,

orthe

guarantor

isunable

to

issue

theguarantee,the

guarantor

should

without

delay

so

inform

the

partythat

gave

the

guarantor

itsinstructionsThe

request

to

issue

a

domestic

guarantee

subject

toURDG?10

Advising

of

guarantee

orURDG758

ArticleamendmentAdvice

a

guarantee:satisfy

the

apparent

authenticity,

andadvice

accurately

reflectsthe

terms

and

conditions

ofguarantee

An

advising

party

or

a

second

advising

party

advises

a

guarantee

withoutany

additional

representationor

any

undertaking

whatsoever

to

thebeneficiary.

If

a

party

cannot

satisfy

the

apparent

authenticity

and

elects

nonetheless

toadvise

that

guarantee,

the

party

should

state

the

same.Advising

a

guarantee

should

whenever

possible

use

the

same

party

toadvise

any

amendment

to

that

guarantee.a

second

advisingparty?URDG758

Article

11

AmendmentAn

amendment

madewithout

the

beneficiary’s

agreement

is

not

binding

onthebeneficiary.

The

beneficiary

may

reject

an

amendment

of

the

guarantee

at

any

timeuntil it

notifies

its

acceptance

of

the

amendment,

ormake

a

presentation

that

complies

only

with

the

guarantee

as

amended.

Partial

acceptance

of

an

amendment

is

not

allowed

and

will

be

deemed

tobe

notification

of

rejection

of

the

amendment.

A

provision

in

an

amendment

to

the

effect

that

the

amendment

shall

takeeffect

unless

rejected

within

a

certain

time

shall

be

disregarded.What

does

“complies

only”

mean?URDG758Article

12

Extent

of

guarantor’sliability

under

the

guaranteeA

guarantor

is

liable

to

the

beneficiary

only

inaccordance

with,the

terms

and

conditions

of

the

guarantee

and,these

rules

so

far

as

consistent

with

those

terms

andconditions,Up

to

the

guaranteeamount.Beyond

the

expiry

date?URDG758Article

13

Variation

of

amount

ofguaranteeA

guarantee

may

provide

for

the

reductionor

the

increase

ofits

amount

on

specified

dates

or

on

the

occurrence

of

aspecified

eventwhich

under

the

terms

of

the

guarantee

resultsin

variation

of

its

amount,

and

for

this

purpose

the

event

isdeemed

to

have

occurredonly:

a.

when

a

document

specified

in

the

guarantee

as

indicatingthe

occurrence

of

the

event

is

presented

to

the

guarantor,

orb.

if

not

such

document

is

specified

in

the

guarantee,

when

theoccurrence

of

the

event

becomes

determinable

from

theguarantor’s

own

records

orfrom

an

index

specified

in

theguarantee.URDG758

Article14

PresentationA

presentationshall

be

made

to

the

guarantor:at

the

place

of

issue,

or

such

other

place

as

is

specified

in

the

guarantee

and,on

orbefore

expiry.

A

presentation

has

to

be

complete

unless

it

indicates

that

it

is

to

becompleted

later.

In

that

case,

it

shall

be

completed

before

expiry.

Each

presentation

shallstate

the

guarantor’s

reference

number

of

theguarantee.

If

it

does

not,

the

time

for

examination

of

a

demand

start

on

thedate

of

identification.

Documents

issued

by

applicant

or

beneficiary

shall

be

in

the

language

ofthe

guarantee.

Any

other

person,

anylanguage.The

function

of

the

statement

“presentation

to

be

completed

later”?URDG758Article

14

PresentationA

guarantee

indicates

presentation

in

electronic

form,

the

guaranteeshould

specify

the

format,

the

system

for

the

data

deliveryand

the

electronic

address

for

that

presentation.

If

not

specify,

presented

inany

electronic

format

authenticated

or

in

paper

form

are

acceptable.A

guarantee

indicates

presentation

in

paper

form,may

use

any

mode

of

delivery

unless

excluded

by

theguarantee.

A

guarantee

doesnot

indicatein

electronic

or

paperform,any

presentation

shall

be

made

in

paperform.Reject

a

presentation

in

electronic

form

when

form

of

presentation

is

notspecified

?URDG758Article

15

Requirements

for

demandA

demand

under

the

guarantee

shall

be

supported

a

statement,

indicating

inwhat

respect

the

applicant

is

in

breach

of

its

obligations

under

theunderlying

relationship.

The

statement

may

be

in

the

demand

or

in

a

separate

singeddocumentaccompanying

or

identifying

the

demand.

A

demand

under

the

counter

guarantee

shall

be

supported

by

a

statementindicating

that

such

party

has

received

a

complying

demand

under

theguarantee

or

counterguarantee.

The

above

requirement

applies

except

to

the

extend

the

guarantee

orcounter-guarantee

expresslyexcludes

this

requirement.

Exclusion

terms

such

as

“The

supporting

statement

under

article15(a)(b)

is

excluded”

satisfy

the

requirement

of

this

paragraph.Such

as

?URDG758Article

15

Requirements

for

demandNeither

the

demand

nor

the

supporting

statement

may

be

datedbefore

the

date

when

the

beneficiary

is

entitled

to

present

ademand.Any

other

document

may

be

dated

before

thatdate.Neither

the

demand,

nor

the

supporting

statement,

nor

anyother

document

may

be

dated

later

than

the

date

of

itspresentationURDG758Article

16

Information

about

demandThe

guarantor

shall

without

delay

informthe

instructingpartyor,

where

applicable,thecounter-guarantorof

anydemandunder

the

guarantee

and

ofany

request,

as

an

alternative,

toextend

the

expiry

ofthe

guarantee.

The

counter-guarantorshallwithout

delay

inform

the

instructing

party

of

anydemandunder

the

counter-guarantee

andofanyrequest,as

analternative,

toextend

the

expiry

ofthe

counter-guarantee.InformNon-complying

demand

?URDG758Article17

Partial

demand

&

multipledemand;

amount

of

demandPartial

demand:

A

demand

may

be

made

for

less

than

the

fullamount

availableMultiple

demand:

More

than

one

demand

may

be

madeMultiple

demand

prohibited:

only

one

demand

covering

all

or

part of

the

amount

available

may

be

made

one

demand

is

rejected,

another

demand

can

be

made

on

or

beforeexpiry

of

theguarantee.It

is

a

non-complying

demand

if:it

is

for

more

than

the

amount

available

under

the

guarantee,

orany

supporting

statement

or

other

documents

required

by

the

guaranteeindicate

amounts

that

in

total

are

less

than

the

amount

demanded.URDG758Article

18 Separateness

of

each

demanda.

Making

a

demand

that

is

not

a

complying

demand

orwithdrawing

a

demand

does

not

waive

or

otherwiseprejudice

the

right

to

make

another

timely

demand,whetheror

not

the

guarantee

prohibits

partial

or

multiple

demands.b.

Payment

of

a

demand

that

is

not

a

complying

demanddoes

not

waive

the

requirement

for

other

demands

to

becomplying

demands.URDG758Article

19

ExaminationThe

guarantor

shall

determine,

on

the

basis

of

a

presentationalone,whether

it

appears

on

its

face

to

be

a

complying

presentation.

Data

in

a

document

required

by

the

guarantee

shall

be

examined

incontext

with

that

document,

the

guarantee

and

these

rules.

Data

need

notbe

identical

to,

but

shall

not

conflict

with,

data

in

that

document,

anyotherrequired

document

or

theguarantee.

The

guarantor

will

accept

a

document

if

its

content

appears

to

fulfil

thefunction

of

the

document

required

by

the

guarantee.

Any

signature

will

beaccepted

if

a

singed

document

is

required.

A

document

is

not

required

but

presented,

it

will

disregarded

and

may

bereturned

to

thepresenter.How

to

handle

the

document

notrequired?URDG758Article

19

ExaminationThe

guarantee

need

not

recalculate

the

beneficiary’scalculations

under

a

formula

stated

or

referenced

in

aguarantee.The

guarantor

shall

consider

a

requirement

for

a

document

tobe

legalized,

visaed,

certified

or

similar

as

satisfied

by

anysignature,

mark,

stamp

or

label

on

the

document

whichappears

to

satisfy

that

requirement.Recalculate

the

applicant’s

calculations?URDG758Article

20

Time

for

examination

ofdemand;

paymentIf

a

presentation

of

a

demand

does

not

indicate

that

it

is

to

becompletedlater,

the

guarantor

shall,

within

five

business

days

following

the

day

ofpresentation,

examine

that

demand

and

determine

if

it

is

a

complyingdemand.This

period

is

not

shortened

or

otherwise

affected

by

the

expiry

of

theguarantee

on

or

after

the

date

of

presentation.

However,

if

the

presentationindicates

that

it

is

to

be

completed

later,

it

need

not

be

examined

until

it

iscompleted.

Place

for

payment:

Payment

is

to

be

made

at

the

branch

or

office

of

theguarantor

or

counter-guarantorthat

issued

the

guarantee

orcounter-guarantee

or

such

other

place

as

may

be

indicated

in

that

guarantee

orcounter-guaranteeExamine

the

presentation

to

be

completed

later?URDG758Article

21

Currency

of

paymentPay

a

complying

demandin

the

currency

specified

in

the

guaranteeIf,

on

any

date

on

which

a

payment

is

to

be

made

under

guarantee:the

guarantor

is

unable

to

pay

in

such

currency

due

to

an

impedimentbeyond

control,

orit

is

illegal

under

the

law

of

the

place

to

make

payment

in

such

currency.the

guarantor

shallmake

payment

in

the

currency

of

the

place

forpayment

even

if

the

guarantee

indicates

that

payment

can

only

be

madein

the

currency

specified

in

the

guarantee.the

instructing

party

or

the

counter

guarantor

shall

be

bound

by

apayment

in

such

currency

.URDG758-

the

guarantor

or

counter

guarantor

may

elect

to

bereimbursed

either

in

actual

payment

currency

orcurrencyspecified

in

the

guarantee.Payment

or

reimbursement

in

the

currency

of

the

place

forpayment

under

Article

21

paragraph

(b)

is

to

be

madeaccording

to

the

applicable

rate

of

exchange

prevailing

therewhen

payment

or

reimbursement

is

due.However,

if

the

guarantor

has

not

paid

at

the

time

whenpayment

is

due,

the

beneficiary

may

require

paymentaccording

to

the

applicable

rate

of

exchange

prevailingeitherwhen

payment

was

due

or

at

the

time

of

actualpayment.Exchange

risk?URDG758Article

22

Transmission

of

copiesof

complying

demandThe

guarantor

shall

without

delay

transmit

a

copy

of

thecomplying

demand

and

of

any

related

documents

to

theinstructing

party

or,

where

applicable,

to

the

counter-guarantor

for

transmission

to

the

instructingparty.However,

neitherthe

counter-guarantornorthe

instructingparty,

as

the

case

may

be,

may

withhold

payment

orreimbursement

pending

such

transmission.Howaboutif C/Guarantor

find

the

demand

to

guarantor

isnot

complying?URDG758Article

23

Extend

or

paywhere

complying

demand,

a

request

to

extend

or

pay,the

guarantor

maysuspend

payment

for

a

period

notexceeding

30

calendar

days

following

its

receiptof

thedemand.where

complying

demand,

a

request

to

extend

or

pay,the

counter

guarantor

may

suspend

payment

for

a

period

notexceeding

four

calendar

daysless

the

periodabove.

The

guarantor

shall

without

delay

inform

the

instructingparty

or

counter

guarantor

of

the

period

of

suspension

ofpayment

under

the

guarantee.

So

does

counterguarantor.URDG758The

demand

for

payment

is

deemed

to

be

withdrawn

ifthe

period

of

extension

requested

is

granted

intime.

The

guarantor

or

counter

guarantor

may

refuse

to

grant

anyextension

if

instructed

to

do

so

and

shall

the

pay.

The

guarantor

or

counter

guarantor

shall

without

delayinform

the

party

form

whom

it

has

received

its

instructions

ofits

decision

toextend

or

to

pay.URDG758Article

24

Non-complying

demand,waiver

and

noticeGuarantor

may

reject

non-complying

demand

in

its

solejudgement

or

approach

for

a

waiverof

the

discrepancies

fromthe

instructing

party

or

counter

guarantor

applicable.

So

doescounter

guarantor.Obtaining

the

waiverofthecounter-guarantororoftheinstructing

partydoes

not

oblige

the

guarantor

or

thecounter-guarantor

to

waive

anydiscrepancy.Give

the

notice