A Comparative Study on The Applicability of Governing Law under Documentary Credits

화환신용장(貨換信用狀)의 준거법선정(準據法選定)과 적용(適用)에 관한 비교연구(比較硏究)

This study is to analyse the applicability of governing law in multi-party contractual relationship of letter of credit. And this study is also to suggest the limits of the possibility of applicable law in multi-party contract. The contract of letter of credit constitutes complex relationship, i.e., applicant -beneficiary, applicant-issuing bank, issuing bank-intermediary bank ect. The law applicable to letter of credit should not use a singular governing law in all credit transaction as sales contract. To solve these problems, the author analysed the law applicable to the credit under multi-party contractual relationship as follow : (1) the principle of party autonomy (2) In the absence of express agreement with regard to the law applicable to the contract, lex loci contractus, lex loci solutionis, the law intended by the parties, the law with which contract is most closely connected. Accordingly, when attempting to ascertain the law governing the credit, it should be borne in mind that the credit involves several contractual relationships. I would like to conclude as follows: 1. The contract between the applicant and the Issuing bank is to be governed by the law of the country where the contract is made, and in which the bank carries on business and has issued the credit. 2. When it comes to the beneficiary-Intermediary bank relationship the following rule is given : The liability of an intermediary bank to the seller is governed by the law the country where the intermediary bank is operating if it is acting as principal. If, however, it is acting as agent(advising bank), it will be the law of the country where his principal is situate. 3. The contract between the beneficiary and the Issuing bank is governed by the law of the country where the payment is to be performed. 4. The contract between the Issuing bank and Intermediary bank is governed by 1) the law of the issuing bank is applicable if the intermediary bank only advises the credit, 2) the law of the issuing bank is applicable but if the intermediary bank makes payment, accepts or negotiates drafts against the tender of the documents, i.e., act as the bank dffecting the payment., 3) the law of the confirming bank is applicable if the irrevocable letter of credit is confirmed by the intermediary bank