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国际保理规则(英文版)RULES FOR INTERNATIONAL FACTORING
[ 作者: 来源: 点击次数:7820 发布时间:2009-3-15 18:24:40 ]
GENERAL RULES FOR INTERNATIONAL FACTORING
(Printed June 2003)
TABLE OF CONTENTS
SECTION 1 GENERAL PROVISIONS
Article 1 Factoring contracts and receivables
Article 2 Parties taking part in two-factoring international factoring
Article 3 Receivables included
Article 4 Common language
Article 5 Time limits
Article 6 Writing
Article 7 Deviating agreements
Article 8 Numbering system
Article 9 Commission/Remuneration
Article 10 Settlement of Disagreements between Export Factor and Import Factor
Artic le 11 Good faith and mutual assistance
SECTION II ASSIGNMENT OF RECEIVABLES
Article 12 Assignment
Article 13 Validity of assignment
Article 14 Validity of receivables
Article 15 Reassignment of receivables
SECTION III CREDIT RISK
Article 16 Definition of credit risk
Article 17 Approvals and requests for approvals
Article 18 Reduction or cancellation
Article 19 Obligation of Export Factor to assign
SECTION IV COLLECTION OF RECEIVABLES
Article 20 Rights of the Import Factor
Article 21 Collection
Article 22 Unapproved receivables
SECTION V TRANSFER OF FUNDS
Article 23 Transfer of payments
Article 24 Payment under guarantee
Article 25 Prohibitions against assignments
Article 26 Late payments
SECTION VI DISPUTES
Article 27 Disputes
SECTION VII REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
Article 28 Representations, warranties and undertakings
SECTION VIII MISCELLANEOUS
Article 29 Communication and electronic data interchange (EDI)
Article 30 Accounts and reports
Article 31 Indemnification
Article 32 Breaches of provisions of these Rules
SECTION 1 General provisions
Article 1 Factoring contracts and receivables
A factoring contract means a contract pursuant to which a supplier may or will assign accounts
receivable (referred to in these Rules as “receivables” which expression, where the context allows,
also includes parts of receivables) to a factor, whether or not for the purpose of finance, for at least one
of the following functions:
- Receivables ledgering
- Collection of receivables
- Protection against bad debts
Article 2 Parties taking part in two -factor international factoring
The parties taking part in two-factor international factoring transactions are:
(i) the supplier (also commonly referred to as client or seller),
the party who invoices for the supply of goods or the rendering of services;
(ii) the debtor (also commonly referred to as buyer or customer),
the party who is liable for payment of the receivables from the supply of goods or rendering
of services;
(iii) The Export Factor,
the party to which the supplier assigns his receivables in accordance with the factoring
contract;
(iv) the Import Factor,
the party to which the receivables are assigned by the Export Factor in accordance with these
Rules.
Article 3 Receivables included
These Rules shall cover only receivables arising from sales on credit terms of goods and/or services
provided by any supplier who has an agreement with an Export Factor to or for debtors located in any
country in which an Import Factor provides factoring services. Excluded are sales based on letters of
credit (other than standby letters of credit), or cash against documents or any kind of sales for cash.
Article 4 Common language
The language for communication between Import Factor and Export Factor is English. When
information in another language is provided an English translation must be attached.
Article 5 Time limits
Except as otherwise specified the time limits set forth in these Rules shall be understood as calendar
days. Where a time limit expires on a non-working day or any declared public holiday of the Export
Factor or the Import Factor, the period of time in question is extended until the first following working
day of the factor concerned.
Article 6 Writing
“Writing” means any method by which a communication may be recorded in a permanent
form so that it may be re-produced and used at any time after its creation. Where a
writing is to be signed, that requirement is met if, by rules accepted among the parties,
the writing identifies the originator of the writing and indicates his approval of the
communication contained in the writing.
Article 7 Deviating agreements
An agreement in writing made between an Export Factor and an Import Factor, which conflicts with,
differs from or extends beyond the terms of these Rules, shall take precedence over and supersede any
other or contrary condition, stipulation or provision in these Rules relating to the subject matter of that
agreement but in all other respects shall be subject to and dealt with as part of these Rules.
Article 8 Numbering system
In order to identify exactly all suppliers, debtors, Import Factors and Export Factors, an appropriate
numbering system must be agreed upon between Export Factor and Import Factor.
Article 9 Commission / Remuneration
(i) The Import Factor shall be entitled to commissions and/or charges for his services on the
basis of the structure and terms of payment as promulgated by the FCI Council from time to
time.
(ii) The agreed commissions and/or charges must be paid in accordance with those terms of
payment in the agreed currencies. A party delaying payment shall incur interest and the
equivalent of any exchange losses resulting from the delay in accordance with Article 26.
(iii) In case of a reassignment of a receivable the Import Factor has nevertheless the right to the
commission or charges.
Article 10 Settlement of disagreements between Export Factor and Import Factor
(i) All disagreements arising between an Export Factor and an Import Factor in connection with
any international factoring transactions shall be settled under the Rules of Arbitration
provided that both are members of FCI at the time of the inception of the transaction.
(ii) Furthermore any such disagreement may be so settled if only one of the parties is a member
of FCI at the time of request for arbitration provided that the other party accepts or has
accepted such arbitration.
(iii) The award shall be final and binding.
Article 11 Good faith and mutual assistance
Under these Rules all duties shall be performed and all rights exercised in good faith. Each of the
Export Factor and Import Factor shall act in every way to help the other’s interest and each of them
undertakes to the best of his ability to assist the other at all times in obtaining any document that may
assist the other to carry out his duties and/or to protect his interests. Each of the Import Factor and
the Export Factor undertakes that each will inform the other immediately of any fact or matter which
comes to his attention and which may adversely affect the collection of any receivable or the
creditworthiness of any debtor.
SECTION II Assignment of receivables
Article 12 Assignment
(i) The assignment of a receivable implies and constitutes the transfer of all rights and interest in
and title to such receivable by any means. For the purpose of this definition the granting of
a security right over a receivable is deemed to be its transfer
(ii) All assignments of receivables must be in writing.
Article 13 Validity of assignment
(i) The Import Factor is obliged, as regards the law of the Import Factor’s country, to inform the
Export Factor of:
(a) the wording and formalities of the notice of assignment; and
(b) any elements in an assignment that are necessary to safeguard the Export Factor
against claims of third parties.
The Import Factor warrants the effectiveness of his advice.
(ii) The Export Factor, whilst relying on the Import Factor’s advice under paragraph (i) of this
Article as regards the law of the Import Factor’s country, shall be responsible for the
effectiveness of the assignment to him by the supplier and of his assignment to the Import
Factor including their effectiveness against the claims of third parties and in the insolvency of
the supplier.
(iii) If the Export Factor requests a particular assignment, enforceable against third parties, the
Import Factor is obliged to act accordingly as far as he is able to do so in accordance with the
applicable law, at the expense of the Export Factor.
(iv) Whenever the assignment of a receivable needs special documentation or a confirmation in
writing in order to be valid and enforceable, at the request of the Import Factor the Export
Factor must provide such documentation and/or confirmation in the prescribed way.
(v) If the Export Factor shall fail to provide such documentation or confirmation in relation to
that receivable within 30 days of the receipt of the Import Factor’s request, then the Import
Factor may reassign such receivable.
Article 14 Validity of receivables
(i) The Import Factor must receive details of invoices and credit notes relating to any receivable
assigned to him without undue delay and in any event before the due date of the receivable.
(ii) The Import Factor may require that the original documents evidencing title, including the
negotiable shipping documents and/or insurance certificate, are forwarded through him.
(iii) At the request of the Import Factor and if then needed for the collection of a receivable the
Export Factor must promptly provide any or all of the following as proof and in any event
within the following time periods:
(a) 10 days from the receipt of the request, an exact copy of the invoice issued to the
debtor;
(b) 30 days from the receipt of that request:
(1) evidence of shipment;
(2) evidence of fulfilment of the contract of sale and/or services where
applicable;
(3) any other documents which have been requested before shipment.
Should the Export Factor fail to provide the requested documents within the
prescribed time limits, the Import Factor shall be entitled to reassign the
receivable.
(iv) The time limit for the Import Factor to be entitled to request these documents
from the Export Factor shall be 270 days after due date of the receivable.
Article 15 Reassignment of receivables
(i) Any reassignment of a receivable under Article 13 (v) or Article 14 (iii) must be made by the
Import Factor no later than the 60th day after his first request for the relevant documents.
(ii) In the event of any reassignment of a receivable permitted to the Import Factor under these
Rules, the Import Factor shall be relieved of all obligations in respect of the reassigned
receivable and may recover from the Export Factor any amount paid by the Import Factor in
respect of it.
(iii) Every such reassignment must be in writing.
SECTION III Credit Risk
Article 16 Definition of credit risk
(i) The credit risk is the risk that the debtor will fail to pay a receivable in full within 90 days of
its due date otherwise than by reason of a dispute.
(ii) The assumption by the Import Factor of the credit risk on receivables assigned to him is
conditional upon his written approval covering such receivables.
Article 17 Approvals and requests for approvals
(i) Requests of the Export Factor to the Import Factor for the assumption of the credit risk must
be in writing and must contain all the necessary information to enable the Import Factor to
appraise the credit risk and the normal payments terms.
(ii) If the Import Factor cannot confirm the exact identification of the debtor as submitted to him
he may amend these details in his reply. Any approval shall apply only to the exact identity
of the debtor given by the Import Factor in that approval
(iii) The Import Factor must, without delay and, in any event, not later than 10 days from receipt
of the request, advise the Export Factor of his decision in writing. If, within the said period,
the Import Factor cannot make a decision he must, at the earliest, and before the expiry of the
period so advise the Export Factor.
(iv) The approval shall apply up to the amount approved to the following receivables owed by the
debtor:
(a) those on the Import Factor’s records on the date of approval;
(b) those arising from shipments made or services completed up to 30 days before the
date of request for approval;
and shall be conditional in each case, upon the receipt by the Import Factor of the
invoice details and the documents as stipulated in Article 14.
(v) The approval of a credit line binds the Import Factor to assume credit risk on those
receivables up to the approved amount for shipments made before cancellation or expiry date
of the line.
Shipment occurs when the goods are placed in transit to or to the order of the debtor whether
by common carrier or the debtor’s or supplier’s own transport.
(vi) A credit line is a revolving approval of receivables on a debtor’s account with one
supplier up to the amount of the credit line. Revolving means that, while the
credit line remains in force, receivables in excess of the line will succeed amounts
within the line which are paid by the debtor or the Import Factor or credited to the
debtor. The succession of such receivables shall take place in order in which
they are due for payment and shall be limited at any time to the amount then so
paid or credited.
(vii) All approvals are given on the basis that each account receivable is in conformity
with the terms of payment (with a permissible occasional variation of 100% or 45
days whichever period is shorter) contained in the pe rtinent information upon
which such approval was granted.
(viii) The approval shall be given in the same currency as the request. However, the credit line
covers receivables represented by invoices expressed not only in that currency, but also in
other currencies; but in all cases the risk to the Import Factor shall not at any time exceed the
amount of the original approval.
(ix) There shall be only one credit line for each supplier on each debtor and any new credit line
shall cancel and replace all previous credit lines for the same supplier on the same debtor in
whatever currency denominated.
(x) If it is known to the Import Factor that it is the practice of the debtor to prohibit assignments
of receivables owing by him then the Import Factor shall so inform the Export Factor in
giving his approval or as soon as it is known to the Import Factor if later.
Article 18 Reduction or cancellation
(i) For good reason the Import Factor shall have the right to reduce or cancel the credit line.
Such cancellation (which expression includes a reduction) must take place in writing or by
telephone (to be confirmed in writing). Upon receipt of such notice of cancellation the
Export Factor shall immediately notify the supplier and such cancellation shall be effective as
to shipments made after the supplier’s receipt of such notice. On or after the sending of any
such notice of cancellation to the Export Factor, the Import Factor shall have the right to send
such notice also direct to the supplier, but he shall inform the Export Factor of such an action.
The Export Factor shall cooperate, and shall ensure that the supplier shall cooperate, with the
Import Factor to stop any goods in transit and thus minimise the Import Factor’s loss. The
Export Factor undertakes to give the Import Factor all assistance possible in such
circumstances.
(ii) On the effective date of the termination of the contract between supplier and Export Factor all
credit lines are immediately cancelled without notice, but shall remain valid for any
receivable relating to a shipment made and services completed before the time of termination
provided that the receivable is assigned to the Import Factor within 30 days of that date.
(iii) When the cancellation of the credit line is effective as in paragraph (i) of this Article, or the
credit line has expired then:
(a) the right of succession as described in paragraph (vi) of Article 17 ceases and
thereafter, except as provided in sub-paragraphs (b) and (c) of this paragraph, any
payment or credit (other than a payment or credit in connection with a transaction
excluded in Article 3) may be applied by the Import Factor in satisfaction of
approved receivables in priority to unapproved receivables;
(b) if any such credit relates to an unapproved receivable and the Export Factor
establishes to the satisfaction of the Import Factor that the credit arose solely
from the failure to ship or a stoppage in transit, the credit shall be applied to
such unapproved receivable; and
(c) any monies subsequently received by the Import Factor resulting from a
general distribution from the estate of the debtor in respect of receivables
assigned by the Export Factor or the relevant seller shall be shared between
the Import Factor and the Export Factor in proportion to their respective
interests in the amount owing by the debtor as at the date of the distribution.
(N.B.: Paragraph (iii) (b) and (c) amended June 2003)
Article 19 Obligation of Export Factor to assign
(i) Subject to the provisions of paragraph (iii) of this Article the Export Factor must offer the
Import Factor all receivables owing by debtors in the Import Factor’s country which have
been assigned to the Export Factor.
(ii) The Export Factor shall inform the Import Factor whether or not the Export Factor’s
agreement is to include the whole turnover on credit terms to the Import Factor’s country.
(iii) In exceptional cases, the Export Factor may withhold from the Import Factor receivables in
respect of any debtor, for which the Import Factor is not prepared to assume any risk or a
substantial part of it or is prepared to do so only at a factoring commission unacceptable to
the Export Factor, but this exception shall not apply to any debtor referred to in paragraph (iv)
below.
(iv) When the Import Factor has approved a credit line on a debtor and an invoice owing by that
debtor has been assigned to the Import Factor, then all subsequent receivables of that supplier
in respect of that debtor must be assigned to the Import Factor, even when the receivables are
only partly approved or not approved at all.
(v) When the Import Factor decides to cancel a credit line, the obligation for the Export Factor
continues to exist until all approved receivables have been paid or otherwise provided for; in
other words, until the Import Factor is “out of risk”. However, after cancellation of the
contract between the Export Factor and the supplier, further assignments of receivables
cannot be expected.
SECTION IV Collection of receivables
Article 20 Rights of the Import Factor
(i) By reason of the assignment to the Import Factor of full ownership of each receivable, the
Import Factor shall have the right of bringing suit and otherwise enforcing collection either in
his own name or jointly with that of the Export Factor and/or that of the supplier and the right
to endorse debtor’s remittances for the collection in the Export Factor’s name or in the name
of such supplier and the Import Factor shall have the benefit of all rights of lien, stoppage in
transit and all other rights of the unpaid supplier to goods which may be rejected or returned
by debtors.
(ii) If any cash, cheque, draft, note or other instrument in payment of any receivables assigned to
the Import Factor is received by the Export Factor or any of his suppliers, the Export Factor
must immediately inform the Import Factor of such receipt. It shall be held in trust by the
Export Factor or such supplier on behalf of the Import Factor and shall, if so requested by the
Import Factor, be duly endorsed and delivered promptly to him.
(iii) If the sales contract contains a prohibition of assignment the Import Factor shall have the
same rights as set forth in paragraph (i) of this Article as agent for the Export Factor and/or
the supplier.
(iv) The Import Factor may reassign any receivable and recover from the Export Factor any
amount paid in accordance with (ii) of Article 24 in respect of it if the Import Factor has been
prevented from obtaining a judgement in respect of that receivable in the courts of the
debtor’s country by reason only of a term relating to jurisdiction in the contract of sale
between the supplier and the debtor which gave rise to that receivable.
Article 21 Collection
(i) The responsibility for collection of all receivables assigned to the Import Factor rests with
him and he shall use his best endeavours promptly to collect all such receivables whether
approved or unapproved.
(ii) Except as provided in Article 27 when the total amount of receivables owing by a debtor at
any one time is approved in part:
(a) the Import Factor shall be entitled to take legal proceedings for the recovery of all
such receivables without obtaining the prior consent of the Export Factor but the
Import Factor shall inform the Export Factor of such action;
(b) if the Export Factor notifies the Import Factor of his disagreement with such legal
proceedings, which are then accordingly terminated, the Import Factor shall be
entitled to reassign all receivables then owing by the debtor and to be reimbursed by
the Export Factor with the amount of all costs and expenses incurred by the Import
Factor in such proceedings and the provisions of paragraphs (ii) and (iii) of Article 15
will apply to that reassignment; and
(c) except as provided in paragraph (ii) b) of this Article the costs and expenses of such
legal proceedings shall be borne by the Import Factor and the Export Factor in
proportion to the respective amounts of the approved and unapproved parts of the
outstanding receivables.
Article 22 Unapproved receivables
(i) When all receivables owing by a debtor at any one time are wholly unapproved:
(a) the Import Factor shall obtain the consent of the Export Factor before incurring legal
and other costs and expenses (other than the Import Factor’s own and administrative
costs and expenses) relating to their collection;
(b) such legal and other costs and expenses shall be the responsibility of the Export
Factor and the Import Factor shall not be responsible for any loss and/or costs which
are attributable to any delay in the giving of such consent by the Export Factor;
(c) If the Export Factor does not answer the Import Factor’s request for consent within
30 days, the Import Factor is entitled to reassign the receivables then or any time
thereafter;
(d) The Import Factor shall be entitled on demand to a deposit from the Export Factor to
cover fully or partly the amount of the estimated costs to be incurred in the collection
of such receivables.
SECTION V Transfer of funds
Article 23 Transfer of payments
(i) When any payment is made by the debtor to the Import Factor in respect of any receivable
assigned to him he shall pay in the currency of the invoice the equivalent of the net amount
received in his bank to the Export Factor immediately after the value date or the date of the
Import Factor’s receipt of the Bank’s notification of the amount received whichever is later
except to the extent of any previous payment under guarantee.
(ii) All payments, irrespective of the amount, shall be transferred daily via SWIFT.
(iii) Not later than the day of the trans fer the Import Factor shall provide a report showing the
allocation of the amount transferred.
(iv) The Export Factor shall repay to the Import Factor on his demand:
(a) any payment made by him to the Export Factor if the debtor’s payment to the Import
Factor was made by a payment instrument subsequently dishonoured (cheque or
equivalent) provided that:
(i) the Import Factor notified the Export Factor of this possibility with the
payment advice (payment under reserve); and
(ii) the Import Factor's demand has been made within 10 banking days in the
Import Factor's country from the date of his transfer of the funds to the
Export Factor; and
(iii) repayments demanded by the Import Factor will not affect his other
obligations;
(b) without any time limit, any payment made by the Import Factor to the Export Factor
in respect of any unapproved Receivable or unapproved part of a Receivable to the
extent that payment by the debtor or any guarantor of the receivable is subsequently
recalled under the law of the country of the payer and such recall is either paid or
settled by the Import Factor provided that any such settlement is effected in good
faith.
(N.B.: Paragraph (iv) (a) adjusted and Paragraph (iv) (b) added October 2002)
Article 24 Payment under guarantee
Except as provided in Articles 25 and 27:
(i) the Import Factor shall bear the risk of loss arising from the failure of the debtor to pay in full
any approved receivable on the due date in accordance with the terms of the relevant contract
of sale or service; and
(ii) to the extent that any such receivable shall not be paid by or on behalf of the debtor by the
90th day after the due date as described above, the Import Factor shall on such 90th day make
payment to the Export Factor (“payment under guarantee”).
(iii) For the purpose of paragraphs (i) and (ii) of this Article, payment by the debtor shall mean
payment to any one of the Import Factor, the Export Factor, the supplier or the supplier’s
insolvent estate.
(iv) In the event of payment to the supplier or the supplier’s insolvent estate the Import Factor
shall co-operate with and assist in the debtor’s country the Export Factor to mitigate any
potential or actual loss to the Export Factor.
(v) If an approved receivable is expressed in a currency other than that of the corresponding
credit line, in order to determine the approved amount that receivable shall be converted to
the currency of the credit line at the rate of exchange ruling at the date on which the payment
under guarantee is due. In all cases the risk of the Import Factor shall not exceed at any time
the amount of the original approval.
Article 25 Prohibitions against assignments
(i) In respect of any approved receivable arising from a contract of sale or for services which
includes a prohibition of its assignment the Import Factor’s obligation for a payment under
guarantee shall arise only on the official insolvency of the debtor or when the debtor makes a
general declaration or admission of his insolvency.
(ii) After any payment under guarantee in respect of any approved receivable referred to in
paragraph (i) of this article the Import Factor shall have the sole right to claim in the insolvent
estate of the debtor in the name of the supplier.
(iii) The Export Factor shall obtain from the supplier and deliver to the Import Factor any
document that may be required by him for the purpose of making any claim as described in
paragraph (ii) of this Article.
(iv) The provisions of this article shall apply, in spite of anything to the contrary elsewhere in
these rules.
(N.B.: Paragraph (iv) added June 2003)
Article 26 Late payments
(i) If the Import Factor or the Export Factor fails to make payment of any amount when it is due
to be paid to the other he shall pay interest to that other.
(ii) Except as provided in paragraph (iii) of this Article, if the Import Factor does not initiate a
payment to the Export Factor according to the requirements of Article 23 or Article 24, the
Import Factor shall:
(a) be liable to pay to the Export Factor interest calculated for each day from the date on
which such payment shall be due until actual payment at twice the 3-months-LIBOR
as quoted on such due date in the relevant currency, provided that the accrued
amount of interest exceeds EUR 50; and
(b) reimburse the Export Factor with the equivalent of any currency exchange loss
suffered by him and caused by the delay in payment.
If there shall be no LIBOR quotation for the relevant currency, twice the lowest lending rate
for such currency available to the Export Factor on such date shall apply.
(iii) If as a result of circumstances beyond his control the Import Factor is unable to make any
such payment when due:
(a) he shall give immediate notice of that fact to the Export Factor;
(b) he shall pay to the Export Factor interest at a rate equivalent to the lowest lending
offer rate available to the Export Factor in the relevant currency calculated for each
day from the day when his payment shall be due until actual payment, provided the
accrued amount of interests exceeds EUR 50
SECTION VI Disputes
Article 27 Disputes
(i) A dispute occurs whenever a debtor fails to accept the goods or the invoice or raises a defence,
counterclaim or set-off including (but not limited to) any defence arising from a claim to the
proceeds of the receivable by any third party. However, where there is a conflict between
the provisions of this Article and those of Article 25 the latter shall prevail.
(ii) Upon being notified of a dispute the Import Factor or the Export Factor shall immediately
send to the other a dispute notice containing all details and information known to him
regarding the receivable and the nature of such dispute. In either case the Export Factor
shall provide the Import Factor with further information regarding the dispute within 60 days
of the receipt by the Export Factor or his sending it as the case may be.
(iii) Upon receipt of such dispute notice the approval of that receivable shall be deemed to be
suspended.
If a dispute is raised by the debtor and the dispute notic e is received within 90 days after the
due date of the invoice to which the disputed receivables relates, the Import Factor shall not
be required to make payment under guarantee of the amount withheld by the debtor by reason
of such dispute.
If a dispute is raised by the debtor and the dispute notice is received after payment under
guarantee, but within 180 days of the due date of the invoice, the Import Factor shall be
entitled to reimbursement of the amount withheld by the debtor by reason of such dispute.
(iv) (a) The Export Factor shall be responsible for the settlement of the dispute
and shall act continuously to ensure that it is settled as quickly as possible.
The Import Factor shall co-operate with and assist the Export Factor, if so
required, in the settlement of the dispute including the taking of legal
proceedings.
(b) If the Import Factor declines to take such proceedings the Export Factor is
entitled to a reassignment of the disputed receivable so that proceedings may be
taken in his or the supplier’s name.
(c) Whether or not any such reassignment has been made the Import Factor shall again
accept as approved, within the time limits specified in paragraph (v) of this Article,
such disputed receivable to the extent that the dispute is settled in favour of the
supplier (including an admission by the person responsible for the administration of
the debtor’s insolvent estate) provided that:
(1) the Export Factor has complied with his obligations under paragraph (iv) a)
of this Article;
(2) the Import Factor has been kept fully informed about the status of
negotiations or proceedings at regular intervals; and
(3) the settlement provides for payment by the debtor to be made within 30 days
of the date of the settlement, if amicable, or the date of the coming into
effect of the judgement in the case of a legal settlement.
(d) For the purpose of this Article, “legal settlement” means a dispute settled by way of a
decision of a court or other tribunal of competent jurisdiction (which, for the
avoidance of doubt, shall include arbitration) provided such legal proceedings have
been formally commenced by proper service of legal process or demand for
arbitration prior to the term set for an amicable settlement; and “amicable settlement”
means any settlement which is not a legal settlement.
(v) The time limits referred to in paragraph (iv) c) above, for the Import Factor to accept again as
approved a disputed receivable, are as follows:
(a) in the case of an amicable settlement, 180 days: and
(b) in the case of a legal settlement, 3 years;
in each case after the receipt of the dispute notice in accordance with paragraph (ii) of this
Article. If, however, during such periods, the debtor becomes officially insolvent or makes a
general declaration or admission of his insolvency, the Import Factor shall remain at risk until
the dispute has been settled.
(vi) In the case of a disputed receivable which the Import Factor has accepted again as approved
in accordance with paragraph (iv) of this Article:
(a) if the receivable has been reassigned to the Export Factor the Import Factor shall
have the right to an immediate assignment to him of all the Export Factor’s or (as the
case may be) the supplier’s rights under the settlement;
(b) in every such case any payment under guarantee, which is to be made in accordance
with Article 24, shall be made within 14 days of the date on which payment is to be
made by the debtor according to the settlement provided that:
(1) any assignment required by the Import Factor under paragraph (vi) a) of this
Article has been made effectively by the Export Factor within that period;
and
(2) the end of that period of 14 days is later than the original due date for the
payment under guarantee.
(vii) If the Export Factor does not comply with all his obligations under this Article the Import
Factor shall have the right to reassign to the Export Factor the disputed receivable and the
Export Factor shall promptly reimburse the Import Factor with the amount of the payment
under guarantee; such payment shall include interest from date of payment under guarantee to
date of reimbursement as calculated in accordance with paragraph (iii) (b) of Article 26.
(viii) If the dispute is solved in full in favour of the supplier, all related costs shall be the
responsibility of the Import Factor. In all other cases the costs will be the responsibility of
the Export Factor.
SECTION VII Representations, warranties and undertakings
Article 28 Representations, warranties and undertakings
(i) The Export Factor warrants and represents for himself and on behalf of his supplier:
(a) that each receivable represents an actual and bona fide sale and shipment of goods or
provision of service made in the regular course of business and in conformity with
the description of the supplier’s business and terms of payment;
(b) that the debtor is liable for the payment of the amount stated in each invoice in
accordance with the terms without defence or claim;
(c) that the original invoice bears notice that the receivable to which it rela tes has been
assigned and is payable only to the Import Factor as its owner or that such notice has
been given otherwise in writing before the due date of the invoice, any such notice of
assignment being in the form prescribed by the Import Factor.
(d) that each one at the time of his assignment has the unconditional right to assign and
transfer all rights and interest in and title to each receivable (including any interest
and other costs relating to it which are recoverable from the debtor) free from claims
of third parties;
(e) that he is factoring all the receivables arising from sales as defined in Article 3 of any
one supplier to any one debtor for which the Import Factor has given approval; and
(f) that all such duties, forwarder’s fees, storage and shipping charges and insurance and
other expenses as are the responsibility of the supplier under the contract of sale or
service has been fully discharged.
(ii) The Export Factor undertakes for himself and on behalf of his supplier:
(a) that he will inform the Import Factor of any payment received by the supplier or the
Export Factor concerning any assigned receivable; and
(b) that as long as the Import Factor is on risk the Export Factor will inform the Import
Factor in general or, if requested, in detail about any excluded transactions as defined
in Article 3.
(iii) In addition to the provisions of Article 32, in the event of a breach of the warranty given in
paragraph (i) e) or the undertaking given in paragraph (ii) b) of this Article the Import Factor
shall be entitled to recover from the Export Factor
(a) the commission and/or charges as agreed for that supplier on the receivables withheld,
and
(b) compensation for other damages, if any.
SECTION VIII Miscellaneous
Article 29 Communication and electronic data interchange (EDI)
(i) Any written message as well as any document referred to in these Rules, which has an
equivalent in the current EDI Standard can or, if so required by the Constitution and/or the
Rules between the Members whenever either of them is applicable, must be replaced by the
appropriate EDI-message.
(ii) The use of EDI is governed by the edifactoring.com Rules.
(iii) The originator of a communication shall assume full responsibility for the damages and losses,
if any, caused to the receiver by any errors and/or omissions in such communication.
Article 30 Accounts and reports
(i) The Import Factor is responsible for keeping detailed and correct debtor ledgers and for
keeping the Export Factor informed about the accounts showing on such ledgers.
(ii) The Export Factor shall be entitled to rely upon all information and reports submitted by the
Import Factor provided that such reliance is reasonable and in good faith.
(iii) If for any valid reason the Import Factor or the Export Factor will not be able to make use of
the EDI then the Import Factor shall account and report at least once a month to the Export
Factor with respect to all transactions and each such monthly account and report shall be
deemed approved and accepted by the Export Factor except to the extent that written
exceptions are taken by the Export Factor wi, thin 14 days of his receipt of such account and
report.
Article 31 Indemnification
(i) In rendering his services, the Import Factor shall have no responsibility whatsoever to the
Export Factor’s suppliers.
(ii) The Export Factor shall indemnify the Import Factor and hold him harmless against all suits,
claims, losses or other demands which may be made or asserted against the Import Factor:
(a) by any such supplier by reason of an action that the Import Factor may take or fail to
take; and
(b) by any debtor in relation to the goods and/or services, the invoices or the underlying
contracts of such supplier;
provided that in either case the Import Factor’s performance in his action or failure to act is
reasonable and in good faith.
(iii) The Import Factor shall indemnify the Export Factor against any losses, costs, interest or
expenses suffered or incurred by the Export Factor by reason of any failure of the Import
Factor to comply with his obligations under paragraph (i) of Article 13 or any breach of his
warranty given in that paragraph. The burden of proof of any such loss, costs, interest or
expense lies with the Export Factor.
(iv) Each of the Export Factor and the Import Factor shall reimburse the other for all losses, costs,
damages, interest, and expenses (including legal fees) suffered or incurred by that other by
reason of any of the matters for which the indemnities are given in paragraphs (ii) and (iii) of
this Article.
Article 32 Breaches of provisions of these Rules
(i) If the Export Factor has substantially breached any provision of these Rules, the Import
Factor shall not be required to make payment under guarantee to the extent that the breach has
seriously affected the Import Factor to his detriment in his appraisal of the credit risk and/or
his ability to collect any receivable. The burden of proof lies with the Import Factor. If the
Import Factor has made payment under guarantee the Import Factor shall be entitled to
reimbursement of the amount paid.
(ii) A substantial breach of paragraphs (i) a) and b) of Article 28 that results only from a dispute
shall not be subject to the provisions of this Article and shall be covered by the provisions of
paragraphs (i) to (viii) of Article 27.
(iii) A substantial breach must be asserted within 365 days after the due date of the invoice to
which it relates.
(iv) The Export Factor shall promptly reimburse the Import Factor under this Article; such
payment shall include interest from date of payment under guarantee to date of
reimbursement as calculated in accordance with Article 26 (ii).
(v) The provisions of this Article are additional to and not in substitution for any other provisions
of these Articles.
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