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Both the banking community and sellers in international trade transactions will be concerned at the impact of the Court of Appeal decision given on 8 November 1995 in Glencore International AG and Bayerische Vereinsbank AG v Bank of China.
Glencore, as sellers of two batches of aluminium ingots, presented documents under two letters of credit opened by Bank of China for the bank's Chinese customers, a Chinese trading corporation. The credits were subject to UCP500 (the 1993 revision of the Uniform Customs and Practice for Documentary Credits) a recognised worldwide code.
Bank of China rejected the documents presented by Glencore (through its bankers, Bayerische Vereinsbank AG ) on the basis that a benefic-iary's certificate required under the terms of the credit was not "marked as original".
The document in question was generated by the sellers' word processor, and was then copied many times. One copy only was then signed by the sellers for the purpose of submission under letters of credit. It did not bear the word "original", but bore an original signature in blue ink.
The Court of Appeal upheld the rejection by Bank of China on the basis of Article 209b0 of UCP500 which states that documents produced or appearing to have been produced by "reprographic, automated or computerised systems" will only be accepted as original documents if marked as "original". A signature is irrelevant in this respect.
The effect of the judgment is that potentially all documents required to be original and submitted under letters of credit, unless handwritten or manually typed, must be marked as "original", failing which the paying bank is entitled to reject them and refuse payment.
Since most documents are generated with a word processor, any such documents now in circulation and so produced carry the risk that, unless duly marked as "original", they will be rejected.
Leave to appeal to the House of Lords was granted to Glencore as sellers although, when giving judgment for the Court of Appeal, the Master of the Rolls said the court was confident that its decision was correct. It is difficult to see how the House of Lords can find otherwise.
The case has been the subject of urgent discussions by the International Chamber of Commerce Banking Commission, and Committee of Experts.