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When a domestic bank (guarantor) issue an independent international letter of guarantee with the beneficiary of a foreign enterprise based on the application of a domestic enterprise (debtor), and does the contract dispute between the guarantor and the debtor arising from this belong to a foreign-related commercial dispute? -- Answers to Several Difficult Issues Concerning Foreign-related Commercial Trials (Part Two) (1)

by Ningbo Intermediate Court

· Procedure,Laws and Regulations,Lawyer,Transnational Commerce

Answer: An independent letter of guaranteerefers to a written commitment issued by the guarantor in accordance with the instructions of the applicant for the letter of guarantee, to make payment to the beneficiary within the maximum amount specified in the letter of guarantee, based on a payment request or other documents that comply with the terms of the letter of guarantee. The debtor, guarantor, and beneficiary are the three parties involved in the legal relationship of an independent guarantee letter, and the legal relationship between the three parties should be regarded as an inseparable whole. Although the guarantor of an independent guarantee only makes payment to the overseas beneficiary at the maximum amount specified in the guarantee based on a payment request or other documents that comply with the terms of the guarantee, and is not affected by the basic legal relationship, guarantee application relationship, or other legal relationships, in the process of hearing contract disputes between the guarantor and the debtor, the debtor enjoys the defense of guarantee fraud exception, The court also has a defense against whether the guarantor has fulfilled the obligation to carefully review the terms of the guarantee letter. In the process of reviewing whether the debtor's defense is established, the court should conduct necessary and limited review of the basic legal relationship between the debtor and the overseas beneficiary. Therefore, contract disputes between the guarantor and the debt can be considered as involving foreign factors and should be accepted as foreign-related commercial disputes.

 

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