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Therefore, it is very important for the contractor that the beneficiary
cannot assign the right to make a demand to a third person without
the consent of the contractor.
In URDG 758, a whole article is dedicated to the transfer of
guarantees and the assignment of proceeds in Article 33 by
specifically addressing some of the issues on which URDG 458 is
silent. First of all, URDG 758 Article 33(a) states that “
a guarantee
is transferable only if it states that it is ‘transferable’, in which case
it may be transferred more than once for the full amount available
at the time of transfer. A counter-guarantee is not transferable
.”
Article 33(b) URDG 758 states an exception to the transferability
of guarantees as transfers can only be realized with the consent of
the guarantor. Article 33(d) URDG 758 defines the scope of the
transfer, and 33(e) indicates who will pay the transfer charges.
3. Article 13 of URDG 458 stipulates the limits of liability or
responsibility for the guarantors. Contractors have been critical of
the provision that guarantors are not to be relieved of liability for
“
strikes, lockouts or industry actions of whatever nature
” as these
matters are within the control of the guarantors (banks). URDG
758 provides a force majeure provision in Article 26 where “force
majeure” is defined to mean “
acts of God, riots, civil commotions,
insurrections, wars, acts of terrorism or any causes beyond the
control of the guarantor or counter-guarantor that interrupts its
business as it relates to acts of a kind subject to these rules.”
The
new rules also stipulate an extension period of 30 calendar days in
case the guarantee or the counter-guarantee expires at a time when
presentation or payment under a guarantee is prevented by force
majeure.
4. According to Article 20 of URDG 458, a demand for payment must
be supported, at a minimum, by a written statement stipulating:
(i) that the contractor is “
in breach of his obligations under the
underlying contract or in case of a tender guarantee the tender
conditions
”, and (ii) “
the respect in which
” the contractor is “
in
breach
”. This is sharplycriticizedbymany contractorswho complain
that the demand could contain more detail in order to discourage
an unfair call, such as the quantification of claims for damages
as the result of the underlying contract or at least the estimation