Jiangsu Higher People's Court
paper of civil judgment
(2000) SJCZ No. 1
Plaintiff Netherlands commercial bank Shanghai Branch (hereinafter referred to as Shanghai Branch), located at 37F, Shanghai Maosheng International Building, No. 101, Yincheng East Road, Pudong New Area, Shanghai.
Responsible person: Zhang Jianing, President of Shanghai Branch.
Entrusted agent: Li Shaowen, Jin Du Law firm Lawyer of Shanghai Branch.
The defendant Suzhou Industrial Park Shell Gas Co., Ltd. (hereinafter referred to as Suzhou Shell), whose address is at Bridge Terminal 1, Suhu Airport Road, Suzhou Industrial Park, Suzhou City, Jiangsu Province.
Legal representative: Zhou Liangyi, Chairman of Suzhou Shell.
The entrusted agent is Zhang Baoqiang, a lawyer of Nanjing Jinheng Law Firm.
Entrusted agent: Tang Jiabin, lawyer of Nanjing Jinheng Law Firm.
Shanghai Branch sued Suzhou Shell for the dispute over payment of guarantee contract. After accepting the case, the Court formed a collegial panel according to law and held a public hearing on March 17, April 7 and September 6, 2000. Li Shaowen, the entrusted agent of the Plaintiff Shanghai Branch, Zhang Baoqiang, and Tang Jiabin, the entrusted agent of the Defendant Suzhou Shell, attended the lawsuit in court. The trial of this case has now been concluded.
The plaintiff Shanghai Branch claimed that on May 14, 1997, Shanghai Branch signed a financing agreement with Suzhou Shell, which stated that Shanghai Branch would provide Suzhou Shell with a guaranteed financing of 6.5 million dollars, and Shanghai Branch would open a standby letter of credit for Suzhou Shell based on its application to guarantee its access to RMB loans. Accordingly, Shanghai Branch opened a standby letter of credit numbered SHSC970009 as a guarantee for Suzhou Shell to obtain RMB loans. Later, at the request of Suzhou Shell, Shanghai Branch opened the standby letter of credit numbered SHSC990039 on October 18, 1999, replacing the standby letter of credit numbered SHSC970009. On November 18, 1999, Shanghai Branch received the notice of claim from the beneficiary under the standby letter of credit, that is, it sent a letter to Suzhou Shell the next day, requesting it to repay all the payments to be made under the standby letter of credit. On November 26 of the same year, Shanghai Branch paid USD 4899669.72 to the beneficiary Suzhou Industrial Park Branch of Agricultural Bank of Suzhou (hereinafter referred to as Agricultural Bank of Suzhou). However, Suzhou Shell turned a deaf ear to the destruction of Shanghai Branch and did not return any money. Shanghai Branch requested to order Suzhou Shell to repay its paid L/C amount of USD 4899669.72 and interest of USD 20603.11, to pay the overdue L/C opening fee of USD 5563.94 and the corresponding interest of the above amount, to bear the lawyer's fees it paid for the case, and to bear all litigation costs of the case.
In the trial, Shanghai Branch changed the amount of interest payable by Suzhou Shell to USD 128088.58 (calculated from November 26, 1999 to March 17, 2000).
Suzhou Shell did not make a written reply.
It was found that on May 14, 1997, Shanghai Branch signed a financing guarantee agreement with Suzhou Shell, which stated that Shanghai Branch would open a standby letter of credit for Suzhou Shell in an amount not exceeding US $6.5 million, so as to realize the purpose of Suzhou Shell obtaining RMB financing from domestic banks for building plants, purchasing equipment and working capital. In this financing agreement, it is specified that Suzhou Shell shall pay a commitment fee of 0.125% per year for the unused part of the secured financing to Shanghai Branch, and within 21 days after the acceptance date, 0.125% of the amount of this agreement in US dollars shall be paid as an arrangement fee; Suzhou Shell can issue a letter of request to Shanghai Branch at any time during the validity period, requesting it to issue one or more guarantees in accordance with the provisions of this Agreement. For each guarantee, Suzhou Shell shall pay commission at an annual rate of 0.75% of the guarantee amount after each quarter of the validity period (both parties stated in the court hearing that this is also called the issuing fee). It is agreed in the above agreement that the maintenance or Enforcement All reasonable costs and expenses (including legal fees and other expenses) related to any of its rights under this Agreement shall be paid by Suzhou Shell to Shanghai Branch, regardless of whether any part of this financing has been used. The agreement also stipulates that Suzhou Shell will unconditionally and irrevocably compensate all claims, liabilities, losses and reasonable expenses of any nature that may occur in any form due to the issuance of any letter of guarantee, and pay the lender all the money when required by the lender, The amount is a claim that may be made by the Lender or that the Lender may pay or become liable to pay all the amounts specified in or arising out of or in connection with any guarantee, as well as the interest and reasonable expenses calculated from the date when the Lender pays or arises the relevant amount or other liabilities. The agreement also stipulates the reasons for breach of contract, compensation for breach of contract and other payments, and clarifies that this agreement will come into force after being signed by Suzhou Shell, the borrower. The applicable law is English law and shall be interpreted in accordance with English law, and subject to the non exclusive jurisdiction of English courts; This agreement is written and signed in both Chinese and English. In case of any discrepancy between the two versions, the English version shall prevail. Suzhou Shell and Shanghai Branch signed the above agreement. Later, according to the application of Suzhou Shell, Shanghai Branch opened a standby letter of credit with the beneficiary of Agricultural Bank of Suzhou, No. SHSC970009, as a guarantee for Suzhou Shell to obtain RMB loans from Chinese banks.
On October 15, 1999, in accordance with the financing agreement signed by both parties, Suzhou Shell sent a letter of request to Shanghai Branch to apply for the issuance of a letter of guarantee (standby letter of credit). The letter of request stated that, according to the financing agreement on May 14, 1997, it was hoped that you would open a standby letter of credit in the amount of 6.5 million dollars with the beneficiary of the Suzhou Industrial Park Branch of the Agricultural Bank of China; We choose one month as the term of the standby letter of credit. On October 18, 1999, Shanghai Branch opened a standby letter of credit with the beneficiary of Agricultural Bank of Suzhou, No. SHSC990039, replacing the original SHSC97009 standby letter of credit. The standby letter of credit stated that when Agricultural Bank of Suzhou issued to Shanghai Branch a copy of the payment notice "according to the SHSC990039 standby letter of credit of Shanghai Branch, the total amount of demand at sight shall not exceed 6.5 million US dollars" between October 18, 1999 and November 25, 1999 (including the start and end dates), and simultaneously issued a certificate signed by two authorized persons of Agricultural Bank of Suzhou, When proving that "Suzhou Shell failed to perform its obligations to pay principal, interest and legal fees under the RMB loan agreement signed between the applicant and us", we confirm that all documents made in accordance with the terms of this standby letter of credit at any time after the date of this letter and before the expiry date should be reasonably accepted by us. It should also be noted that this Standby Letter of Credit is subject to UCP500 (publication No. 500 of "Uniform Customs and Practice for Documentary Credits").
On November 18, 1999, Agricultural Bank of Suzhou issued the "Beneficiary's Certificate" and attached the "Payment Instruction" to Shanghai Branch, requesting Shanghai Branch to pay the amount not exceeding 4899669.72 US dollars at sight. The above "beneficiary certificate" was signed by Guo Jianliang and He Xuelin, two authorizers of Agricultural Bank of Suzhou, stating that Suzhou Shell had not repaid its principal, annual interest and legal fees under the loan agreement granted to it by the beneficiary. The "payment instruction" says: please pay the money to Chase Manhattan New York Branch, the payee is Agricultural Bank of China Suzhou Branch, the account number is NO? 001-1-165867, CHIPSNO? 320251. Shanghai Branch sent a letter to Suzhou Shell on the 19th of the same month after receiving the above certificate: we received the payment notice from the beneficiary of the standby letter of credit on November 18, please confirm your instructions for our payment to the beneficiary on or before November 26, 1999, the payment date of the standby letter of credit. In order to compensate our payment, please pay the immediately available fund of USD 4899669.72 to our account in Chase before November 26.
On November 26, 1999, Shanghai Branch paid USD 4899669.72 to the beneficiary Suzhou Branch according to its claim. In addition, Suzhou Shell paid the commitment fee of USD 157.99 for the unused part of secured financing and the arrangement fee of USD 8125 for 0.125% of the financing guarantee limit to Shanghai Branch in accordance with the financing guarantee agreement. Both parties confirmed that part of the commission of the guarantee amount (i.e. the opening fee) has been paid, and the opening fee is still USD 5563.94. As Suzhou Shell failed to repay the amount of USD 4899669.72 and its corresponding interest to Shanghai Branch after repeated reminders, Shanghai Branch filed a lawsuit against the Court on December 22, 1999. Suzhou Shell also appeared in court to answer the lawsuit after being legally summoned by our court. [page]
The above facts include the financing guarantee agreement signed with Suzhou Shell on May 14, 1997 provided by Shanghai Branch, the application for Suzhou Shell to issue letter of guarantee to Shanghai Branch on October 15, 1999 SHSC970039 Standby Letter of Credit, "Beneficiary's Certificate" and "Payment Instruction" issued by Agricultural Bank of China Suzhou on November 18, 1999, the letter sent by Shanghai Branch to Suzhou Shell on November 19, 1999, and other evidences, as well as the statements of both parties. Both parties have no objection to the above evidence.
In the litigation of this case, the Court requested both parties to provide relevant provisions of English law on the application of law in this case. In the event that both parties indicated that they could not provide, the Court entrusted East China University of Political Science and Law to provide relevant foreign laws through Chinese and foreign legal experts in accordance with Item 5 of Article 193 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China, which stipulates that when the people's court should apply foreign laws International Economic Law Professor Chen Zhidong, an expert, provided the relevant provisions of English law in writing. Both parties did not object to the provisions of English law applicable to this case ("Legal Opinion on the Application of Standby Letter of Credit under English Law") provided by Professor Chen Zhidong in writing.
The Court believes that: in this case, "this financing agreement shall be governed by and interpreted in accordance with the laws of England" agreed by both parties, which is in line with the provisions of Chinese laws on "the parties to a foreign-related contract may choose the law applicable to the settlement of contract disputes". According to the "legal opinion" provided by Professor Chen Zhidong, "under English law, the parties to the contract have the right to choose the law applicable to the contract, and by choice, English law can be adopted Loan contract Or the guarantee contract stipulates that "when English law is applicable to this contract, English law will be applied as the substantive law to solve this case". Therefore, both parties in this case have the right to choose English law as the applicable law for the financing guarantee agreement. In addition, according to the provisions of relevant English laws provided by Professor Chen Zhidong, under English law, there are no restrictive provisions on the subject of the contract and no prohibitive provisions on the use of standby letters of credit. Therefore, in this case, the financing guarantee agreement signed between Shanghai Branch and Suzhou Shell, the SHSC990039 standby letter of credit issued by Shanghai Branch and other contract documents are legal and valid. Moreover, under English law, as long as both parties signed a written contract in writing, whether they read the contract or not, they should be bound by the terms of the contract (L EstrangeV. Graucob [1934] 2KB934). Therefore, in this case, Shanghai Branch and Suzhou Shell shall perform their respective contractual obligations in accordance with the financing guarantee agreement. In this case, Shanghai Branch has opened the standby letter of credit according to the agreement, and paid USD4899669.72 under the standby letter of credit to Agricultural Bank of Suzhou according to the agreement after receiving the demand notice from the beneficiary of the standby letter of credit, Agricultural Bank of Suzhou. However, if Suzhou Shell fails to repay the amount paid and the corresponding interest to Shanghai Branch, it shall be deemed that Shell has violated the financing agreement between both parties, and Suzhou Shell shall repay the amount under the letter of credit and the corresponding interest to Shanghai Branch, and bear the corresponding liability for breach of contract.
The above determination is based on the provisions of English law on "the guarantor (bank) can claim compensation from the guaranteed after performing its obligations". Under English law, after the guarantor provides guarantee at the request of the debtor, the guarantor has an implied contractual right to require the debtor to compensate for all liabilities undertaken by the guarantor (Toussaint V. Marriant [1787] 2TermRep100), which is a generally applicable principle, that is, one party to the contract is entitled to be repaid or compensated based on the request or authorization of the other party to make payment or assume responsibility, because the request or authorization has been implied (ReaDetor19371AllER1).
In accordance with the provisions of Article 145 of the General Principles of Civil Law of the People's Republic of China on the application of law to foreign-related contracts, and the substantive provisions of English laws on the guarantee of standby letter of credit and the contractual obligations of the guarantor, the Court's judgment on this case is as follows:
1、 Suzhou Shell Company repaid the amount of standby letter of credit that Shanghai Branch had paid for it 4899669? 72 dollars and pay the corresponding interest (from November 26, 1999 to the date when Suzhou Shell repaid all the above amounts, the calculation method of default interest in accordance with the financing agreement between the two parties is: the sum of the annual interest rate of 2.25% plus the LIBOR rate applicable to one month deposits and calculated by reference to the continuous period deemed appropriate by the borrower and the lender);
2、 Suzhou Shell Company repaid the remaining L/C opening fee (i.e. commission) of USD 5563.94 owed by Shanghai Branch;
3、 Suzhou Shell shall bear the legal fee of 200000 yuan paid by Shanghai Branch for this case.
The funds confirmed in the preceding paragraphs 1, 2 and 3 shall be fulfilled within ten days after this judgment takes effect.
Case acceptance fee 213939? RMB 60 and the appraisal fee of this case is RMB 7000, totaling 220939? 60 yuan, to be borne by Suzhou Shell. This payment has been paid in advance by Shanghai Branch and will be paid by Suzhou Shell to Shanghai Branch when executing this judgment.
If not satisfied with this judgment, Shanghai Branch shall submit one original and one copy of the appeal petition to this court within 30 days from the date of service of this judgment and Suzhou Shell within 15 days from the date of service of this judgment, and pay the appeal case acceptance fee of 213939.60 yuan in advance [Special account (sub account) of central finance of the Ministry of Finance. Account No.: 8010359-11; Bank of deposit: Qianmen Branch of Chongwen Branch of Agricultural Bank of China, appealed to the Supreme People's Court of the People's Republic of China.
Chief Judge Tang Jun
Judge Bai Xinlian
Acting Judge Xu Meifen
September 6, 2000
Secretary Lei Xinyong
