Homayun Mafi; Mehdi Fallah
Volume 3, Issue 9 , December 2015, , Pages 149-170
Abstract
One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying ...
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One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying contract by principal. In fact, documentary characteristics and the principle of independence provide an opportunity for the beneficiary to affect the exceptional and secondary function of bank guarantee as a result of an unfair demand. The question posed is how unfair demand can be prevented. By examining rules and regulation governing international trade and the draft bill on commercial law approved in 1391, it would seem that among possible solutions, such as the requirement of presenting a court judgment or an arbitral tribunal award and a statement by the beneficiary or principal indicating points in which the applicant is in breach of its obligations, the assumption of nonperformance of the contract, in the event of demand by the beneficiary, is the most appropriate solution.
Hamid Reza Nikbakht; Shaha Jafaro NADOUSHAN
Volume 3, Issue 10 , March 2015, , Pages 141-161
Abstract
In the realm of commercial trade, it is a common practice that sellers and buyersmanifest their intentions to conclude the contract of sale through differentcommunications and correspondence. The parties may exchange forms andgeneral terms prepared invariably in advance for all contracts. There may be ...
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In the realm of commercial trade, it is a common practice that sellers and buyersmanifest their intentions to conclude the contract of sale through differentcommunications and correspondence. The parties may exchange forms andgeneral terms prepared invariably in advance for all contracts. There may be aconflict between the buyer’s and the seller’s forms. Thus, when a dispute arisesbetween the parties, the main question is whether a contract has beenconcluded, even though there are conflicting terms. If the answer is positive, afurther question is: What are the terms of this contract?By considering circumstances and conduct of the parties, on the whole, after theexchange of the forms, it can be said that there is a valid contract. A viablesolution is to disregard the conflicting terms, and instead, to consider provisionsof the law governing the contract. When CISG is the law applicable to the salecontract, its provisions may well be used to fill the gaps after conflicting termsare ruled out.
