The perceived problems in the utilisation of letters of credit : a comparative study
This thesis addresses the perceived problems in the utilisation of letters of credit. The jurisdictions treated are: U.K., U.S., the Sudan and Kingdom of Saudi Arabia. In carrying out this task, it reviews and analyses the arguments advanced to resolve these problems and attempts to furnish some solutions to them. It is divided into ten chapters. Chapter One explains the nature of the letter of credit transaction and its efficacy as a financial device, then proceeds to identify the problems which will be examined in the thesis. Chapter Two focuses on the development of letters of credit from ancient times and the factors that contributed to their emergence in their present form. Chapter Three deals with classification of letters of credit. It investigates problem areas surrounding some types of credits particularly the irrevocable credit. Chapter Four examines the documents required under the credit; highlights the legal and technical aspects of these documents; argues and offers suggestions as to disputed issues such as notation on a bill of lading, customary disclaimers and additional cost clauses etc. Chapter Five examines the problems relating to interpretation of the strict compliance rule. It examines the controversy the strict compliance rule has spawned among commentators and offers practical solutions which may minimize the practical difficulties involved. Chapter Six considers the problem of fraud in letters of credit transactions. It identifies the bounds of the fraud exceptions in documentary letters of credit and standby letters of credits, analyses the rationale behind the fraud exception and offers suggestions as to allocation of loss when innocent parties are evenly situated. Chapter Seven deals with problem areas in letter of credit transfer and assignment. It reviews modes of transfer, provides a discussion of the mechanism of transfer, offers an analysis as to the banker's obligation; investigates and challenges the current reservations against credit transferability; examines the fundamental issues involved in assignment of proceeds of the credit and offers an overview of al-hawala i.e. transfer of a debt under Islamic law. Chapter eight deals with the bankers' security over the goods. It illustrates forms of documents of title, the security devices utilised by bankers such as the pledge, the letter of hypothecation and the trust receipt, and examines the position of the banker vis a vis third parties. Complex priority problems are discussed and some solutions are offered to maintain the predominant security interest of the banker against other rival claimants in case of the debtor's insolvency. Chapter Nine focuses on Islamic Law concepts fundamental to understanding why Islamic banks' operations as to documentary credits differ from conventional banks. Islamic law theories of riba i.e. interest and gharar i.e. risk or uncertainty are briefly dealt with. Chapter Ten examines the al-murabaha device which is utilised by Islamic banks to finance documentary credits. The practical issues are reviewed and analysed, namely how Islamic banks deal in foreign exchange transactions, discounting of bills of exchange, confirmations of credits and service charges. It suggests particular areas where cooperation between the two types of banks may be developed.