FOREIGN GUARANTEE

FOREIGN GUARANTEE

DIFFERENT TYPES ISSUANCE AND PAYMENT

DEFINITION OF GUARANTEE

A guarantee is promise made by the person/organization (or guarantor) to the Banker that he will pay the present or future debt in case of default by the principal debtor. So the guarantor is undertaking to repay the debt in case it is not the principal debtor. We should know who is principal debtor? The person in respect of whose default the guarantee is given is called the “Principal Debtor” and the person to whom the guarantee is given is called the “ Creditor (beneficiary)”.

A guarantee may be either (1) a specific guarantee or (2) a continuing guarantee. A specific guarantee relates to one transaction only & whereas a continuing guarantee covers a series of transactions and the guarantee subsists unless revoked by the guarantor.

In 1992, the ICC published its Uniform Rules for Demand Guarantees (URDG), ICC Publication No.458. The Rules reflect current demand guarantee practice and aim to achieve a fair balance between the competing interests of the parties involved. The ICC believes that the establishment of standards for best practice is beneficial to all concerned with demand guarantee business, and there are already signs that URDG is now being increasingly used as its existence becomes more widely known.

Under Article 2(b) ICC Uniform Rules for Demand Guarantees ICC publication No.458 states that “Guarantees by their nature are separate transactions form the contract(s) or tender conditions on which they may be based, and Guarantors are in no way concerned with or bound by such contract(s), or tender conditions, despite the inclusion of a reference to them in the Guarantee. The duty of a Guarantor under a Guarantee is to pay the sum or sums therein stated on the presentation of a written demand for payment and other documents specified in the Guarantor on presentation in conformity with the terms of the Guarantee.

“Counter Guarantee” means any guarantee, bond or other payment undertaking of the Instructing Party, however named or described, given in writing for the payment of money to the Guarantor on presentation in conformity with the terms of the undertaking of a written demand for payment and other documents specified in the Counter-Guarantee which appear on their face to be in accordance with the terms of the Counter-Guarantee.

TYPE OF GUARANTEE:

There are two types of Guarantee:

a)         Simple Guarantee: A simple guarantee is given in respect of a specific transaction or promise undertaken by the Principal debtor. It comes to an end when the specific Promise or transaction is fulfilled.

b)         Continuing Guarantee: When a guarantee is given in respect of a series of promises or transactions, it is called a “Continuing Guarantee”. The surety specified the amount upto which, and the period within which, he shall remain liable as a surety. The guarantee taken by banks is usually a continuing guarantee, which holds good as security although the balance is the debtor’s account may fluctuate from time to time.

Type of Guarantee that are generally issued by the bank:

(1)        Bid-Bond / Security deposit : This is also called tender or bid guarantee and is generally sought for 2 per cent to 5 per cent of the contract amount. In case of default of the tender at whose request the guarantee is extended, the beneficiary may encash the same.

(2)        Performance Guarantee : Guarantees which are extended in consideration of specific  performance of contract are called performance guarantee. Performance guarantees are given to Government or Corporation on behalf of contractors undertaking to make payment of penalty in the event of non-fulfillment of their performance of contract or supplying goods as per contract.

(3)        Shipping Guarantee : Banks give guarantee/indemnity to shipping companies for release of goods in the absence of shipping documents, in case goods arrive before receipt of such documents by the consignee and are incurring demurrage or original shipping documents have been lost after retirement from bank.

(4)        Customs Guarantee : This guarantee is issued in favour of customs authority on account of custom duties/excise duties on imported goods and machinery or export commodities on behalf of clients.

ISSUANCE OF FOREIGN BANK GUARANTEE AND ITS DIFFERENT TYPES                                                

Sometimes Foreign Correspondent on behalf of its customer requests the Bank in Bangladesh to issue a guarantee in favour of beneficiary in Bangladesh. When the Authorised Dealer issues the guarantee against Counter Guarantee of Foreign Correspondent is called Foreign Bank guarantee. Normally there are two major types of Foreign Guarantees that Bank issues one Bid Bond and another Performance Bond/Guarantee. Generally Foreign Guarantee is issued in the Convertible currency such as, Dollar, Pound Starling, Yen, Deutsche Mark on in the Domestic Currency of the issuing country. Foreign letter of guarantee may be issued other than the above currency provided Foreign Correspondent undertakes that reimbursement claim would be settled in the convertible currencies.

i.          An authorised dealer may without prior approval of Bangladesh Bank, issue guarantee Bid Bond, or Performance Bond in foreign currency on behalf of non-resident firm/company-favouring residents in Bangladesh provided a Back-to-Back guarantee covering the guaranteed amount from an overseas correspondent or other Band abroad is held by the Authorised Dealer. The Authorised Dealer should satisfy itself about the bonafieded of the overseas guarantee before issuing its own Guarantee/Bid Bond/Performance Bond there against.

ii.         Non-resident international agencies may demand Bank guarantees from non-resident contractors against supply of materials/down payment for the on going projects in Bangladesh financed by them. Such guarantee on behalf of a non-resident contractor in favour of the non-resident beneficiary may be issued by an Authorised Dealer against 100% Counter Guarantee from a reputed international Bank abroad, or against 100% cash collateral in Foreign Exchange received from aboard through Banking channel.

iii.        Authorised Dealers may not, without prior approval of Bangladesh bank furnish guarantees to or hold collaterals on behalf of overseas Bank branches or correspondents in respect of credit facilities or guarantees to be extended by them on for any other purpose.

iv.        Authorised Dealers may furnish Performance Bonds/Guarantees in favour of overseas buyers on account of Bangladeshi Exporters subject to the following donations.

a)      The tender floated by the Freeing buyer call for Bank Guarantees/Performance Bond.

b)      The tender is a bonafide merchandise exporter.

c)      There is no export bank on the commodity to be supplied.

d)     The past performance of the tendered (exporter) is considered satisfactory by the Authorised Dealer.

The remittance, if any, to the beneficiary as a result of invocation of the bond or guarantee can be made subject to report to the Bangladesh Bank.

PROCEDURE FOR ISSUANCE OF FOREIGN BANK GUARANTEE

Before issuing a Foreign Guarantee an Authorised Dealer should be very much careful and it is to be ensured:

i.          That the Foreign Correspondent has requested to issue guarantee under Tested Telex treating the instruments as operative or through letter signed by two authorized signatories whose specimen signature are available with the Bank and test have been agreed.

ii.                  That the name and address of the beneficiary along with contest and all other terms and conditions of the guarantee is clearly incorporated.

iii.                That the amount of the guarantee is specific and validity have been mentioned.

iv.                That the Foreign Correspondent has indemnified and undertaken to pay the claim on demands if any arises out of the guarantee issued at their request.

v.                  That the Foreign Correspondent provided counter Guarantee valid upto additional 30 days after expiry of the guarantee to facilitate lodging of claim and settlement thereon.

Having being satisfied with the above, the Foreign Guarantee should be issued on Non-Judicial Stamp Paper and to be sent to beneficiary directly or through the local agent of the principal debtor. Lodgment voucher should be passed in convertible currencies at the rate of T.T. Clean. Commission should be calculated and letter to be sent to Foreign Correspondent requesting to credit the proceeds of commissions to our Head Office Account abroad maintained by International Division. The Foreign Correspondent should also be informed the issuance of Foreign Guarantee against their Counter Guarantee immediately.

PAYMENT OF FOREIGN GUARANTEE

Bank should honour the claim Foreign Guarantee without delay and hesitation in accordance with terms and conditions agreed upon. Generally Performance Guarantee provide a clause under which Banks liability is not affected or suspended because of any dispute between the beneficiary and principal debtors. So Banks should not wait for settlement of such disputes and must make the payment immediately when called upon and such payment is deemed to have been made rightfully and lawfully.

It is now well settled in law that in the event of default, the Bank would pay, on first demand, the guaranteed amount without any contest or protest or without any reference to the customer and/or without questioning the legal relationship subsisting between the customer and the beneficiary. Payment of Foreign Guarantee is made debiting Suspense Account Sundry Debtors after obtaining Head Office approval. Before payment, it is to verified that the claim have been lodged within validity as per terms and conditions of the guarantee and the original Bank Guarantee have been surrendered. Bank recovers the amount paid from the Foreign Correspondent who has given counter Guarantee. Upon receipt of claim from the beneficiary the Bank should lodge its claim to Foreign Correspondent requesting to credit the precedes of Counter Guarantee to Head Office A/C maintained abroad and thus reconciled.