外文文献及译文--交易中的信用证欺诈及其可能的仲裁(编辑修改稿)

外文文献及译文--交易中的信用证欺诈及其可能的仲裁(编辑修改稿)内容摘要：

ud has been called to the bank39。 s attention before the drafts and documents have been presented for payment. The principle of the independence of the bank39。 s obligation under the letter of credit should not be extended to protect the unscrupulous seller.” In so ruling, the court laid the foundations for what is today classified as the fraud exception in letter of credit transactions. The court remarked that the case before it was not a breach of warranty but rather one of active fraud. Therefore, no hardship is caused...where fraud is claimed, where the merchandise is not merely inferior in quality but consists of worthless rubbish, where the draft and the acpanying documents are in the hands of one who stands in the same position as the fraudulent seller, where the bank has been given notice of the fraud before being presented with the drafts and documents for payment.” Enjoining payment of the draft in such situations protects not only the interests of the applicant, but also those of the issuing bank, since a bank is vitally interested in assuring itself that there are some goods represented by the documents.” Since Sztejn courts around the world, including Canadian and American courts, have recognized and established the fraud exception in both documentary and standby credit transactions. In the United States, the Sztejn decision and others following it inspired the 5 drafters of art. 5 . to include a provision bringing fraudulent transactions within the scope of the . which in amended form, was reestablished in the revised 1995 version. 3 Legal remedies available to the parties in a fraud scenario In order to assess the prospects of arbitration succeeding as an alternative to litigation in a fraudulent letter of credit dispute, it is first necessary to understand the legal remedies available to the parties in such a context. Misconduct by the beneficiary in a letter of credit transaction can give rise to many kinds of judicial proceedings. It follows from this that the range of possible legal action available to the parties in a fraudulent letter of credit transaction, as well as the procedural and tactical measures to be undertaken, will ultimately depend on the facts of each particular case and, therefore, cannot be covered prehensively. There are, however, three typical judicial recourses to which the parties monly resort in order to protect their rights in a fraudulent letter of credit transaction. Interlocutory injunction by the applicant General The first and most important proceeding available to the applicant is a motion for an interlocutory injunction seeking to prevent the issuer from honoring the beneficiary39。 s demand for payment. This is what occurred in Sztejn, in which the applicant learnt prior to honor that the beneficiary had attempted to wrongfully draw under the credit. The court will only order an interlocutory or provisional injunction preventing the issuer from paying the beneficiary upon proof being made by the applicant that it would suffer irreparable prejudice even before the institution of an action as a result of the alleged fraud. In general, however, courts are reluctant to grant such injunctive relief and in only few cases will the injunction be maintained in subsequent judicial proceedings. Canada In Canada, there is no specific federal law governing the issuing of interlocutory injunctions in a fraud in the transaction scenario. Thus, in such cases provincial law applies. A distinction, however, must be made between the fraud test in an application for an 6 interlocutory injunction and that in a nonprovisional judicial proceeding. In contrast to a court action, in which fraud must be dearly and obviously established, a strong prima facie case of fraud suffices on a motion for an interlocutory injunction. It is acknowledged, however, that while the conclusions drawn in earlier cases offer valuable guidance, the circumstances of each case must be considered in their own unique light” in order to assess whether injunctive relief should be granted. Action by the beneficiary against the issuer The second type of legal proceeding that monly arises。