FINANCING(國(guó)際支付的范圍)

1、VI Financing 支付支付lA.SCOPE OF INTERNATIONAL FINANCING（國(guó)際支付的范圍）（國(guó)際支付的范圍）lB.FINANCING FOREIGN TRADE（對(duì)外貿(mào)易融資）（對(duì)外貿(mào)易融資）lC.BILLS OF LADING（提單）（提單）lD.BILLS OF EXCHANGE（匯票）（匯票）lE.PROMISSORY NOTES（本票）（本票）lF.NEGOTIABILITY OF BILLS AND NOTES（票據(jù)的流通性）（票據(jù)的流通性）lG.THE NEGOTIATION AND TRANSFER OF BILLS AND NOTES（票據(jù)的流轉(zhuǎn)

2、）（票據(jù)的流轉(zhuǎn)）lH.THE ROLE OF BANKS IN COLLECTING AND PAYING NEGOTIABLE INSTRUMENTS（銀行在流通票據(jù)收支中的地位）（銀行在流通票據(jù)收支中的地位）lI.LETTERS OF CREDIT（信用證）（信用證）lJ.FINANCING FOREIGN OPERATIONS（對(duì)外經(jīng)營(yíng)融資）（對(duì)外經(jīng)營(yíng)融資）l1. The Financing of Foreign Trade: Involves the underwriting, paying, and collecting of money for the purchase of go

3、ods and servicesl2. The Capitalization of Foreign Investments: Involves the acquisition of debt and equity financing to establish or expand overseas business operationsA.SCOPE OF INTERNATIONAL FINANCINGl1. Trade Documentsla. Reason for use in international trade: Buyers and sellers are separated bot

4、h in distance and by the differing financial practices of their home countries.l1) Difficult for seller to determine the credit standing of a foreign buyer.l2) Difficult for buyer to reliably establish the foreign sellers integrity and reputation.B.FINANCING FOREIGN TRADE C. BILLS OF LADINGl1. The E

5、ssential Document for all international salesla. A document of title: It represents the goods.l1) Allows for transfer of title while goods are in the possession of a carrier or warehouseman.l2) Discussed in Lecture 10.l1. Defined: A bill of exchange (or draft) is la. A written, dated and signed inst

6、rument.lb. Containing an unconditional order.l1) From drawer.l2) Directing drawee.l3) To pay a payee.lc.A definite sum of money.ld. With payment to be made.l1) On demand, orl2) At a specified future date.D.BILLS OF EXCHANGE 2. Bills of Exchange are Negotiable Instruments a. A proper holder will take

7、 it free of the “personal defenses” or “equities” that the drawer might have that: 1) The underlying contract was improperly performed, or 2) The instrument was improperly made. b. Importance: Bills of exchange are more readily saleable and, therefore, useful financial tools for raising money. 3.The

8、 Laws Governing Bills of Exchange a.Three basic laws: 1)Anglo-American laws. a)English Bills of Exchange Act (BEA) of 1882. 1Applicable in UK and commonwealth countries. b)United States Uniform Commercial Code (UCC). 1Adopted in all US states except Louisiana. 2)Model laws applicable in the rest of

9、the world. a)Uniform Law on Bills of Exchange and Promissory Notes (ULB) of 1930. b)Uniform Law for Checks (ULC) adopted in 1931. 3)United Nations Convention. a)UN Convention on International Bills of Exchange and International Promissory Notes (CIBN) of 1988. b)Meant to make international transacti

10、ons uniform. c)Not yet in force unlikely to be in force soon. 4. The “Form” of Bills of Exchange a. BEA and UCC requirements: 1) In writing. 2) Payable either to order or to bearer.b. ULB requirements: 1) In writing. 2) Payable either to order or to bearer. 3) Contain the term “bill of exchange” in

11、a) The body, and b) The language of the check. 4) State the place where the bill is drawn. 5) State the place where payment is to be made. 6) Be dated. 5. Types of Bills of Exchange a. Time bill: Drawee must pay at a definite future time. b. Sight (or demand) bill: Drawee must pay either when 1) The

12、 holder presents the bill for payment, or 2) At a stated time after presentment. c.Trade acceptances: Drawee is one who bought goods from the drawer and owes the sale price to the drawer. 1) Drawee is a credit buyer. 2) May be a time or sight bill. d. Checks: Drawee is holding money on account for d

13、rawer. 1) Drawee is a bank. 2) Checks are always payable on demand.l1. Defined: A promissory note (or simply a “note”) is a written promise to pay a determinate sum of money made between two parties.l1)Maker: The issuer of a promissory note.l2)Payee: The person to whom the note is to be paid.l2. Dif

14、ference Between a Promissory Note and a Bill of Exchange The maker of a note promises to personally pay the payee rather than ordering a third party to do sol3. Governing Law: Same as those that apply to bills of exchangelE. PROMISSORY NOTESl1.Requirements of Negotiabilityl a. Be in the proper form,

15、 andl b. Contain the following promissory elements:l 1) State an unconditional promise or order to pay.l 2) State a definite sum of money or a monetary unit of account.l a) Money.l 1 BEA, UCC and ULB define money as “a medium of exchange authorized or adopted by a domestic or foreign government as p

16、art of its currency.”l 2 International practice also includes ad hoc currency baskets established by the parties.lF.NEGOTIABILITY OF BILLS AND NOTES b) Definite Sum: The sum to be paid must be ascertainable from the bill or note itself without reference to any outside source. 3)Be payable on demand

17、or at a definite time. 4)Be signed by the maker or drawer. a) Signature: “Any symbol executed or adopted by a party with present intention to authenticate a writing.”l1. Assignment: The transfer of rights under a contractla. The assignee acquires only those rights that the assignor possessed.lb. Any

18、 objections to honoring the assigned obligations that could be raised against the assignor can be raised against the assignee.lG. THE NEGOTIATION AND TRANSFER OF BILLS AND NOTES 2.Negotiation: The transfer of a bill or note in such a way that the recipient becomes a holder a.Negotiating order paper.

19、 1)Order paper: A bill or note payable to a named payee. 2)Negotiated by delivery and endorsement. b.Negotiating bearer paper. 1)Bearer paper: A bill or note payable to the bearer or to cash. 2)Negotiated by delivery. c.Converting order to bearer paper and bearer to order paper. 1)Order to bearer pa

20、per: a)By an endorsement in blank, i.e., the endorsees signature alone. b)By an endorsement to pay to the bearer. 2)Bearer to order paper: By the use of a special endorsement, e.g. “pay to John Adams.” 3. Forged Endorsements a. Effect. 1) ULB: A forged endorsement is effective. a) Both the person ta

21、king a forged instrument and all subsequent holders are entitled to payment. b) Rationale: This rule encourages the free transfer and exchange of bills and notes. 2)BEA and UCC: A forged endorsement is ineffective. a)The endorsee taking from a forger is responsible for determining the validity of an

22、 endorsement. Case 12-3. Mair v. Bank of Nova Scotia 1Exceptions: aImpostor rule: A forged endorsement is effective if a drawer, maker, or endorser draws, makes or endorses an instrument to an imposter. bFictitious payee rule: A forged endorsement is effective if the instrument was issued in the nam

23、e of a payee who had no interest in the instrument. b)Rationale: Liability is imposed on the person best able to prevent the forgery from happening.c)Problem with rule: It encourages litigation. 1Determination of whether one or the other of the two exceptions applies has to be made after the fact. 2

24、The last holder has to initiate suit against the dishonoring party to determine who must press the claim against the forger. 4.Limitations on the Excuses that Drawers and Makers Can Use to Avoid Paying Off a Bill or Note a.ULB limitations. 1)Basic rule: Anyone who acquires a bill or note by negotiat

25、ion is a holder who is entitled to payment from the maker or drawer. 2)Exceptions: a)The possessor is not a holder because he did not acquire title through an uninterrupted series of endorsements. b)The holder acquired the instrument in bad faith. 1Bad faith includes: aActual theft of the instrument

26、. bKnowing that the instrument is stolen, lost, or misplaced. cKnowing that the payee, or some prior holder, is not properly entitled to payment. c)The holder acquired the instrument through gross negligence (i.e., carelessly but without actual knowledge). b. BEA/UCC limitations: 1) Basic rule: The

27、maker or drawer does not have to pay someone who is not a holder, he can assert “personal defenses” or “equities” against a holder, but only “real defenses” against a holder-in-due course. a) Holder: One who acquired the bill or note through an uninterrupted series of endorsements.b) Holder in Due C

28、ourse (HDC): A holder who acquires an instrument: 1 For value, 2 In good faith, and 3 Without notice that it is overdue, or that it has been dishonored, or that the maker, drawer, or a prior endorser has a valid excuse for not paying it off. 2) Personal Defenses: a) Breach of contract (including bre

29、ach of contract warranties). b) Lack or failure of consideration. c) Fraud in the inducement. d) Illegality, incapacity (other than minority), or duress, if the contract is voidable. e) Previous payment of the instrument. f) Unauthorized completion of an incomplete instrument. g) Nondelivery of the

30、instrument. 3) Real Defenses: a) Forgery. b) Fraud in the execution. c) Material alteration. d) Discharge in bankruptcy. e) Minority, if the contract is voidable. f) Illegality, incapacity, or duress, if the contract is void. 5. Liabilities of Makers, Drawers, Drawees, and Endorsers a. Liability on

31、the Instrument: Liability arising out of a signature. 1) Makers and drawees have “primary” liability: Must make payment on presentment of the instrument. Case 12-4. Far East Realty Investment, Inc. v. Court of Appeals 2) Drawers and endorsers have “secondary” liability: Only have to pay if the maker

32、 or drawee fails to do so. b.Warranty Liability: Responsibility arising out of the implied guarantees a person makes at the time he transfers or presents a negotiable instrument. 1)BEA and ULB: No warranty liability. 2)UCC: Every person who transfers an instrument (whether order or bearer paper) in

33、exchange for consideration makes five implied guarantees to his immediate transferee and to every subsequent holder who takes the instrument in good faith. a)The transferor has good title to the instrument or is otherwise authorized to obtain payment or acceptance on behalf of one who does have good

34、 title. b)All signatures are genuine or authorized. c)The instrument has not been materially altered. d)No defense of any party is good against the transferor. e)The transferor has no knowledge of any insolvency proceedings against the maker, the acceptor, or the drawer of an unaccepted instrument.l

35、1. Functions Banks Perform in connection with negotiation of bills and notesla. Issue instruments themselves (e.g., certified checks and certificates of deposit).lb. They assume primary liability (as drawees and acceptors) on bills of exchange and promissory notes.lc.They act as the collecting agent

36、 for holders and transferees.ld. They take instruments as endorsees, paying the endorser, and presenting the instrument for payment in their own right.H. THE ROLE OF BANKS IN COLLECTING AND PAYING NEGOTIABLE INSTRUMENTSl1. Alternatives to Using Letters of Creditla. “Cash in advance” term: Used if se

37、ller is unable to determine buyers creditworthiness.lb. “Documents Against Payment” term: Used when buyer wants to confirm that the goods have been shipped.l 1) Seller instructs a bank in the buyers country to release title (e.g., a carriers bill of lading) only after the buyer delivers to the bank

38、a receipt from the seller indicating that the seller has received payment.lc. “Documents Against Acceptance” term: Buyer insists upon taking delivery before making payment.l 1) Seller instructs a bank in the buyers country to release title only on receipt of an acknowledgement of delivery.lI.LETTERS

39、 OF CREDIT 2. The Letter of Credit Transaction a. Defined: An instrument 1) Issued by a bank, or other person, at the request of a customer (called an “account party”). 2) It is a conditional agreement between the issuer and the account party that is intended to benefit a third party. 3) It obliges

40、the issuer: a) To pay a bill of exchange drawn by the account party, up to a certain sum of money, b) Within a stated time period, and c) Upon presentation by the beneficiary of documents designated by the account party.b.Function: To substitute the credit of a recognized international bank for that

41、 of the buyer.c.The parties:1)The buyer is the account party.2)The buyers bank is the issuing bank.3)The seller is the beneficiary.d.Types of Letters of Credit:1)Irrevocable: Cannot be altered without the beneficiarys express consent.a)Preferred by beneficiaries because it provides the most security

42、.2)Revocable: Revocable by the issuing bank.a)Disliked by beneficiaries because it provides the least security.3)Confirmed: A second bank adds its endorsement to the credit, indicating that it too will make payment against the specified documents.a)Gives the beneficiary additional assurance that pay

43、ment will be made. 3. Governing Law: a. International Chamber of Commerces Uniform Customs and Practices for Documentary Credits (UCP) governs virtually all international letter of credit transactions. 1) Most banks incorporate the UCP in the terms of the credits they issue. 4. Applying for a Letter

44、 of Credit a. Applicant must have an existing relationship with a bank. b. Applicant completes a “Letter of Credit Application.” 1) Caveat: Not an application for credit, but a set of instructions telling the issuing bank what needs to be included in the letter of credit. c.The consequences of not o

45、btaining a letter of credit when the buyer has contractually agreed to obtain one 1) If the credit was a condition precedent to the formation of the contract: There will be no contract, and consequently no breach. 2) If the credit was a condition for the performance of the contract: Because the cont

46、ract already exists, the failure to obtain a credit will be a breach that will entitle the injured party to sue for damages.5.Documentary Formalitiesa.No particular form is required.b.Must have the following formalities:1)Be in writing.2)Be signed by the issuer.3)Be complete and precise.4)Indicate i

47、f it is irrevocable.a)Presumption that a credit is revocable.1Note: The latest version of the UCP (UCP 500) changes this rule so that a credit is presumed to be irrevocable.5)Indicate clearly when and how credits are to be paid.a)This may be by:1Sight payment.2Deferred payment.3Acceptance.4Negotiati

48、on.6)Name the bank(s) which is/are authorized to:a)Pay the credit,b)Accept bills of exchange drawn in accordance with the letter, orc)Negotiate the credit. 6. Advising and Confirming Letters of Credit a. Advising Bank: A corresponding bank in the beneficiarys county which delivers the credit to the

49、beneficiary. 1) Assumes no liability for paying the letter of credit. 2) Only obligation is to the issuing bank, to insure that the beneficiary is advised and the credit delivered, and to take “reasonable care to check the apparent authenticity of the credit.” a) It does this by comparing the signat

50、ure on the credit with the authorized signatures it maintains on file. b. Confirming Bank: A bank that independently promises that it will pay, accept, or negotiate a credit, as appropriate, when the documents specified in the credit are presented to it and the other terms and conditions of the cred

51、it have been complied with. 1) A confirming bank is entitled to reimbursement from the issuing bank if the documents it receives are in order. 2) Obligations of confirming banks: a) If the documents are not in order the confirming bank will be left with title to the goods in its own name. b) If the

52、issuing bank or the account party are unable to reimburse the confirming bank, the confirming bank will be left with title to the goods in its own name. 7. The Obligations of Banks a. To examine documents with reasonable care. b. Paying, accepting, or negotiating banks must forward irregular documen

53、ts to the issuing bank. c. To honor or refuse credits “on the basis of the documents alone.” 1) So long as the documents appear regular on their face, the bank must pay. a) The Rule of Strict Compliance: A bank may reject documents that do not exactly comply with the terms specified in the letter of

54、 credit. 2) Fraud by the Seller. a) If the seller delivered mislabeled goods to a carrier to obtain the documents it needed to collect against a letter of credit, the issuing bank may nevertheless pay the seller even if it knows of this. c) If the underlying transaction was fraudulent and the credit

55、 is revocable, the issuing bank may refuse to pay the seller. d) If the underlying transaction was fraudulent and the credit is irrevocable, the issuing bank probably has to pay the seller. 1 There is no firm rule in the UCP. 3) Fraud in the Collection Process. a) If a collecting bank, knowing that a letter of credit has been altered, attempts t