The implementation of the fraud exception rule: a comparative study

Purpose - The purpose of this paper is to examine the application of the fraud exception rule and try to analyze the different approaches in regard to the implication of fraud rule in letters of credit. Further, this paper tries to explore if there is an obstacle when applying such exception rule in common law and whether there is an overlap with interpreting the said rule. The same fact appears in civil law courts as well. Design/methodology/approach - This paper is a comparative study which uses analytical approach and critical legal thinking. Findings - The scope of the fraud defence, the US legal systems demonstrate that the scope of the fraud rule is extended and covers both fraud in documents and fraud in the underlying contract, while in contrast, in UK the rule’s scope is restricted to fraud in documents only. Such an approach is reasonable, as it is justified by applying the Uniform Customs and Practice for Documentary Credits (UCP) rules strictly. That is to say, English courts apply the rules literally, even if it does not lead to fair judgements, while in contrast, American courts seek to enforce justice even if it goes beyond the rules. In any case, restricting the fraud exception to fraud in the documents is the proper approach. The reason for such restriction, on the one hand, is to maintain the integrity of letters of credit and, on the other hand, to affirm the autonomy principle. Originality/value - Extending the scope of the fraud defence will require banks to go beyond the documents, which is not logical. Banks are neither expert in such transactions nor required to do so. Most importantly, banks are concerned with documents only; it is for the court to go beyond the documents. Although this approach could be criticized, it is important to ensure that the validity of the documentary credit instrument is not compromised. As established by academics, any argument need not engage the bank unless it is in respect of the presented documents. In short, “pay now, argue later” is paramount to distinguish parties’ litigations from banks vs parties’ litigations. In any case, it can be suggested that extending the fraud rule exception to include fraud in the underlying contract from Jordan perspective is not the proper one because it is necessary to maintain the integrity of letters of credit and to affirm the autonomy principle.