121 Banking L.J. 613
July/August, 2004
*613 ORIGINAL DOCUMENTS IN LETTERS OF CREDIT IN THE ERA OF
HIGH-QUALITY PHOTOCOPIERS AND PRINTERS
Koji Takahashi [FNa1]
In this article, the author puts forward a proposal for amending Article 20(b)of the UCP 500 with a view to providing bankers with a clear guidance for
distinguishing original documents from copies under a letter of credit.
Under a letter of credit, the documents presented must be originals. Thus
under UCP 500, [FN1] originals are called for with respect to marine ocean
bills of lading (Article 23), non-negotiable sea waybills (Article 24), charter
party bills of lading (Article 25), multimodal transport documents (Article26), air transport documents (Article 27), and insurance documents (Article34). Other documents presented under letters of credit are also expected to
be originals unless otherwise provided in the terms and conditions of thecredit. [FN2]
Traditionally, most documents were hand-written or typed and it was not too
difficult to distinguish originals from photocopies. Today, almost all
documents are prepared by computers and generated from printers. [FN3]
Coupled with the advent of high-quality photocopiers, it has become
increasingly difficult to distinguish originals from non-originals. As will be
examined below, the UCP 500 contains a provision (Article 20(b)) for
facilitating the task of distinguishing originals. But it gave rise to diverse
interpretations and the one suggested by the ICC Policy Statement does noteasily square with the text of the provision. The purpose of this article is to
put forward a proposal for amending Article 20(b) with a view to providing
clear guidance to bankers.
ARTICLE 20(B) OF THE UCP 500
To respond to technological developments, a new provision for facilitating thetask of distinguishing original documents was introduced in the UCP 400[FN4] at the time of the 1983 revision. [FN5] In the 1993 revision, the sameprovision was reproduced, with minor changes, as Article 20(b) in the UCP

500. It reads:
Unless otherwise stipulated in the Credit, banks will also accept as an
original document(s), a document(s) produced or appearing to have been
produced:i. by reprographic, automated or computerized systems;
ii. as carbon copies;
provided that it is marked as original and, where necessary, appears to besigned.
A document may be signed by handwriting, by facsimile signature, byperforated signature, by stamp, by symbol, or by any other mechanical orelectronic method of authentication.
At first glance, it may be thought that this provision applies to all documents
produced by reprographic, automated or computerized systems. But inpractice those documents are often not marked as original as required bythis provision. That has led to a debate whether all of those documents are
subject to this provision.
*615 GLENCORE INTERNATIONAL A.G. V. BANK OF CHINA [FN6]
In this case, the document in question was a beneficiary's certificate
attesting that certain documents had been sent to the buyer on time. It was
initially composed on a word processor and generated from a laser printer. It
was then photocopied by a high-quality photocopier to produce copies. To thenaked eye, the photocopies were indistinguishable from the original printout.
One document, probably one of the photocopies, was then signed with a ballpoint pen and submitted under a letter of credit. The bank rejected it on the
ground that it was not marked as original and a dispute was brought before
an English court whether the rejection was lawful.
The Court of Appeal, affirming the ruling of first instance, held that the
document had been properly rejected. The court took the view that with theintroduction of Article 20(b) into the UCP, any document produced byreprographic means or automated or computerized system had to be marked
as original to be treated as such no matter whether it would have been sotreated before. According to this interpretation, the word "also" in Article
20(b) would mean "in addition to handwritten or typed documents" sincethose two types of documents are in any view originals. [FN7]This interpretation has the merit of making the bankers' task of
distinguishing originals easy but imposes on the issuers of documents aninflexible routine of marking as original the documents produced on acomputer despite that it is now the most common method of document
production.
In fact, it is said that until the Glencore decision, a large number of banks
were happy to accept documents produced on a computer without requiringthem to be marked as original. [FN8] It is also said that even after the
Glencore decision, only a few banks changed that practice and others ignored
the decision as taking an incorrect interpretation or as inapplicable to theircountries. [FN9] Thus Boueki to Shinyojo, [FN10] a guide on letters of credit
often referred to in Japan, does not mention the Glencore decision but statesthat Article 20(b) does not have to be interpreted as requiring documents,
such as invoices and packing lists, which are only meant to convey the
information contained therein, to be marked as original, though suchmarkings would be needed for the documents, such as bills of lading andinsurance policies, for which such markings are significant when thepossessor exercises the right embodied in *616 the documents and for the
documents which the law requires to be marked as original.
KREDIETBANK ANTWERP V. MIDLAND BANK PLC [FN11]
Several years after the Glencore decision, the Court of Appeal gave a rulingwhich interpreted Article 20(b) restrictively. In this case, an insurance policy
was produced by a laser printer onto a watermarked headed paper bearing
the name and blue logo of the insurer. It was then photocopied by ahigh-class photocopier. The copy was marked "duplicate" but the original
printout bore no equivalent marking. Both documents were signed and were
submitted under a letter of credit. The bank rejected the original printout on
the ground that it was not marked as original as required by Article 20(b)and a dispute was brought before an English court as to whether therejection was lawful. It was common ground that before the introduction of
UCP 400 in 1983, the document would have been regarded as an original
document.
The Court of Appeal, affirming the ruling of first instance, held that the
documents could not be properly rejected. It took the view that Article 20(b)did not apply to a clearly original document, unless it either was or might bea copy of another document such as a photocopy or carbon copy. The court
observed that the document at issue was clearly an original document as it
contained an obviously original colored logo and an apparently original
signature and was accompanied by a document marked as duplicate. Thisdecision did not seek to articulate exactly what documents fell within Article
20(b). It might have taken the view that only documents apparently
photocopied or carbon copied were subject to that provision. It might as wellhave taken the view that Article 20(b) applied to the documents which would
have been rejected as non-originals prior to UCP 400, though it did notclarify what exactly those documents were. This decision therefore offeredlittle predictability as to how Article 20(b) would apply though it was more
appreciative of the modern method of document production than the
Glencore decision.
*617 ICC POLICY STATEMENT
After the Glencore decision, the issuers of documents were sometimes taking
the trouble of stamping documents "original" as a precaution. This has led
the ICC to feel it necessary to clarify the meaning of Article 20(b). [FN12] It
issued a policy statement just after the Kredietbank decision and suggested
the following interpretation: [FN13]... unless a document indicates otherwise, it is treated as original if it:(A) appears to be written, typed, perforated, or stamped by the document
issuer's hand; or(B) appears to be on the document issuer's original stationery; or(C) states that it is original, unless the statement appears not to apply to the
document presented (e.g. because it appears to be a photocopy of anotherdocument and the statement of originality appears to apply to that otherdocument).
The annotation which follows says that documents which appear to be handsigned by the issuer are treated as original documents in accordance with
sub-paragraph (A) above even if they are produced by reprographic,
automated, or computerized systems. It also says that documents appearing
to have been photocopied are nevertheless treated as original documents inaccordance with sub-paragraph (B), if the text appears to have beenphotocopied onto original stationery of the issuer rather than onto blank
paper. It also cites as examples of statements indicating originality astatement that the document is a "duplicate original" or the "third of three"
and a statement that the document is void if another document of the sametenor and date is used. On the other hand, a statement that the document isa true copy of another document or that another document is the soleoriginal are cited as examples indicating non-originality. It notes that astatement in a document that it is the "customer's copy" or "shipper's copy"
neither disclaims nor affirms originality.
According to this policy statement, only a narrow category of documents suchas those which appear to have been produced by photocopying onto blank
paper and which have not been completed by hand are subject to ¢mBLJ
618¢ mArticle 20(b) and accordingly need to be marked as original to be sotreated. This ICC statement offers a clearer and more specific criterion thanthe Kredietbank decision and has been endorsed by some courts. [FN14]
Though the statement does not seek to amend Article 20(b) but purports
merely to indicate the correct interpretation, how it squares with the text ofArticle 20(b) is not easy to see.
ISP 98Documents presented under a standby letter of credit must also be originals.
Standby letters of credit used to be subject to the UCP. But more recently, a
specific set of rules, the ISP (International Standby Practices) 98, wascreated by the Institute of International Banking Law and Practice andendorsed by the ICC. Rule 4. [FN15] of the ISP 98 confirms in paragraph (a)that presented documents must be originals and provides in paragraph (c):i. A presented document is deemed to be an original unless it appears on its
face to have been reproduced from an original.
ii. A document which appears to have been reproduced from an original isdeemed to be an original if the signature or authentication appears to beoriginal.
This criterion is not as specific as the ICC Policy Statement but since it
deems all but some documents to be originals, it will facilitate the bankers'
task of examining documents.

PROPOSED TEXT FOR AMENDING ARTICLE 20(B)As the cases such as Glencore and Kredietbank illustrate, the present text ofArticle 20(b) has given rise to difficult interpretive questions and is notproviding a clear guidance to the practice. The ICC Policy Statement, thoughintended to indicate the correct interpretation of Article 20(b), is difficult tosquare with the text of that provision. It is therefore submitted that Article
20(b) should be amended to read as follows:*619
i. A presented document is deemed to be an original unless it:- appears clearly to have been reproduced from another documentor;- is produced by the bank on a telefax, telex, e-mail, or othersystem that prints out messages received by the bank or;- contains statements indicating that it is a non-original.
ii. Statements in documents which indicate that they are
non-originals include, inter alia:- a statement that another document is the sole original and;- a statement that it is a copy of another document.
iii. A statement in a document that it is the "customer's copy" or"shipper's copy" shall not be considered to indicate that the document
is a non-original.
iv. A document which appears clearly to have been reproduced from an
original is nevertheless deemed to be an original:- if the document issuer's signature or other authentication
appears clearly to be original or;- if it appears clearly to have been reproduced on the document
issuer's original stationery or;- if it is marked as "original," "duplicate original," "third of three"or with words of similar effect or;- if it contains a statement that it will stand void if its duplicate isaccomplished.
What follows will explain the thinking behind the proposed text.
COMPREHENSIVE AND SPECIFIC DEFINITION

The proposed text seeks to build upon the respective strength of the ICC
Policy Statement and ISP 98. Thus while the present text of Article 20(b)deals only with certain categories of documents which were narrowlyinterpreted by the ICC Policy Statement, the proposed text, like Rule 4.15 of
the ISP 98, seeks to provide a comprehensive definition of original
documents. But it is more specific than the ISP 98, incorporating elements of
the ICC Policy Statement.
MARKING AS "ORIGINAL"
The proposed text, unlike the present text, does not require documents to bemarked as original. This is not in fact a significant departure from thepresent regime since the Kredietbank decision and the ICC Policy Statement
narrowly circumscribed the categories of documents subject to Article 20(b).
But in order to decide whether to abolish the marking requirement all
together, it is necessary to consider why original documents are called for in
the first place. The reasons seem to stem from the inadequacy of copies on
the following three points:
1. Copies may contain errors introduced while copying the original.
2. Copies may contain alterations unauthorised by the issuer.
3. Copies of documents of title (such as bills of lading) do not embody therelevant rights.
On the first point, a copy is as good a document as its original if it is marked
as original attesting that no error was introduced while copying the original.
Marking as original would therefore have been meaningful in the days whencopies were usually made manually. But with the arrival of photocopying
machines, accurate copying has become possible and it is no longer necessary
to provide this assurance by marking as original. This is one of the reasonsthe proposed text does not make originality depend upon marking.
Today the second point is more important as the progress of the photocopying
technology has made unauthorised alterations increasingly easy. However,on this point, unlike the first point, marking as original would not make a
copy as good a document as its original. Since marking is normally effectedby stamping the word "original," it is just as easily done by the per¢ mBLJ
621¢mson tampering with the document as the issuer. [FN15] It will berecalled that stamping a document with the word 'original' was described byJudge Diamond QC in the Kredietbank case [FN16] as being merely an"empty ritual." This is another reason why the proposed text does not makemarking as an essential requirement for original documents. On the other
hand, a statement in a document indicating that the document is a
non-original would not be inserted for fraudulent purposes and could betrusted. The proposed text therefore treats documents containing such
indications as non-originals.
On the third point, a copy is as good a document as its original if it is marked
as original attesting the issuer's intention to affix the relevant rights to the
document. Thus bills of lading are often issued in a set of three originals. Twoof them will be made from the first original by copying it and marking themas original. The third point may therefore provide a good reason to makemarking as original a prerequisite for originals in so far as documents of title
are concerned. But it is not relevant to documents which do not embody
rights such as weight certificates, quantity certificates, quality certificates,
inspection reports, and insurance certificates. In this regards, it should be
noted that with respect to road, rail or inland waterway transport documents,
Article 28(b) of the UCP 500 expressly treats marking as originals as
irrelevant to the originality of the documents. For the forgoing reasons, theproposed text does not require marking as original as a prerequisite fororiginal documents.
SIGNATURE
Signature does not serve exactly the same functions as original documents.
Thus when the UNCITRAL drafted the Model Law on Electronic Commerce,
it considered what requirements had to be established in the electroniccommerce in order to achieve the same functions as served by various
requirements established for the paper transactions. It has decided to treat
signature as a separate requirement from the requirement of originals. Thus,
under Article 8 of the Model Law, the requirement of original documents is
considered to safeguard the integrity of the content of documents, while
under Article 7, the requirement of a signature is considered to serve thepurposes of identifying the author of a document and confirming that *622
the author approved the content of that document.

Article 20(b) of the UCP 500 calls for a signature only "where necessary."
This may reflect the understanding that signature does not serve exactly thesame functions as original documents. The UCP 500 contains separate
provisions requiring some documents such as shipping documents andinsurance policies to be signed. It is therefore not necessary for provisions
defining original documents to call for a signature even only in the cases"where necessary." The proposed text makes this clear by not making asignature an essential requirement for original documents in any case.
If, however, there is a signature, it certifies the issuer's approval of thecontent of the document and therefore means that the document is nottampered with at least when signed. And even after a signature is applied, aslong as the original signature remains intact, it will be hard to falsify therest of the document even with the help of a high-quality photocopier. For
that reason, the proposed text deems a document containing an apparently
original signature to be an original even if the document itself appears tohave been reproduced from an original.
PRESUMPTION OF ORIGINALITYAs Article 14(b) of the UCP 500 provides, banks are supposed to examine
documents only on their face. They do not therefore undertake to determine
whether a document is original in fact. Moreover, as Sir Thomas Bingham
M.R. has pointed out in the Glencore case, banks, jealous of their reputationin the international market place, are generally careful not to reject
documents on grounds of non-conformity unless the non-conformity is clear.
[FN17] In view of the nature of the bank's duty to examine documents andthe increasing difficulty of distinguishing originals due to the advanced
photocopying technology, it would seem inappropriate to demand banks topositively identify original documents. That is why the proposed text, likethe ISP 98, deems documents to be originals save certain exceptions, thereby
facilitating the bank's task of examining documents.
The presumption may operate to broaden the category of documents deemed
to be originals and, if so, that might be considered to be unwarranted given
that, with the advent of high-quality photocopiers, there is now a *623
greater need to insist upon original documents to counter unauthorised
alterations. But it is implicitly acknowledged under the UCP 500 thatrequiring originals does not ensure a perfect protection against unauthorised
alterations since Article 15 provides that banks are not responsible for the
genuineness or falsification of any document. We should therefore be content
if unauthorised alterations are avoided to the extent possible by the means ofrequiring originals and to the extent originals are distinguishable inaccordance with the banks' responsibility to examine documents. It is worth
noting that if documents are presented electronically, unauthorised
alterations may be avoided more directly and effectively by authenticating
the electronic data [FN18] than by requiring original documents in the paper
environment.
RELIANCE ON APPEARANCE
Presumptive provisions generally work most effectively if their exceptions
are defined clearly and exhaustively. The proposed text does not entirely
achieve this as it relies upon appearance of documents in defining theexceptional categories of copies. This is necessitated as the bank's
responsibility for checking documents is limited to examination on the face ofthe documents. In this regard, the present text of Article 20(b) uses theexpression "produced or appearing to have been produced" but to demandbanks to determine whether documents are in fact "produced" seems
contrary to the nature of banks' responsibility.
It is true that reliance on appearance gives rise to the possibility ofinconsistent judgments between the confirming and issuing banks. Thus the
document accepted by the confirming bank as apparently an original may berejected by the issuing bank as apparently a copy. This, however, seems to bea problem inherent in the nature of the bank's responsibility of examining
documents.
The proposed text seeks to avoid inconsistent judgments as much as possible
by requiring a copy to appear clearly to have been reproduced from anotherdocument, failing which the document is deemed to be an original. Thus adocument which looks equally like a computer printout and a photocopy will
be deemed to be an original. This would be an entirely appropriate result
given that the printing out of computer generated text is the normal *624
method of creating documents today and the documents so produced are notsusceptible to greater risk of unauthorised alterations than hand-writtendocuments.
When paragraph four of the proposed text deems to be an original the
document which appears clearly to have been reproduced, it requires theappearance to be clear that the issuer's signature or other authentication isoriginal or that the document was copied onto the issuer's stationery. This,
too, is to avoid inconsistent judgments between the confirming and issuingbanks as much as possible.
CONCLUSION
In the future, documents will be presented more commonly by electronicmeans. The ICC has created a set of rules, the eUCP, [FN19] to deal withissues which might arise from electronic presentation. The eUCP isapplicable when the credit indicates it is subject to eUCP. [FN20] Though
Article e12 of the eUCP, in common with Article 15 of the UCP, requires
banks to check only apparent authenticity, the eUCP contains provisions
which are based upon the assumption that electronic messages could be
more securely protected against unauthorised alterations by systems ofauthentication than by requiring original documents in the paper
environment. Thus Article e3(b)(i) defines "electronic record" to indicate thatit must be capable of being authenticated and Article e5(f) provides that anelectronic record that cannot be authenticated is deemed not to have beenpresented. Article e6(b) further provides that the forwarding of electronic
records by a nominated bank pursuant to its nomination signifies that it has
examined the apparent authenticity of the electronic records. This may becontrasted with the position in the paper environment, in which theforwarding of documents is merely a mechanical act. [FN21] Though it istrue that electronic presentation is susceptible to methods of falsification
unique to electronic environment, technological developments may improve
the reliability of systems of authentication and thus provide an effective
solution to the difficulty caused in the paper environment by the advent ofhigh-quality photocopiers. But it will be long before electronic presentation
becomes common. In the meantime, the UCP has to provide a clear guidance
as to what documents must be *625 accepted as originals. It is hoped that thedraft text proposed in this article will prove to be a useful contribution to theongoing discussion for revising the UCP 500.

[FNa1]. The author is an Associate Professor at Doshisha University Law
School in Japan. This article is based upon his presentation at the Academy
for International Business Transactions on March 13, 2004 in Japan. The
author would like to thank the members of the audience who commented
upon the proposed draft, in particular Professor Koji Tsubaki, who acted as
the commentator for his presentation.
[FN1]. ICC publication number 500/B.
[FN2]. Byrne & Taylor "ICC Guide to the eUCP" (ICC publication number
639) p 121.
[FN3]. Credit Industriel et Commercial v. China Merchants Bank [2002]
EWHC 973 (Comm) at para 53, Steel J. speaking of "the almost total demiseof the typewriter and the use of computers for all forms of printing."[FN4]. ICC publication number 400.
[FN5]. Article 22(c) of UCP400.
[FN6]. [1996] 1 Lloyd's Rep. 135 (CA).
[FN7]. See e.g. Glencore International AG v. Bank of China [1996] 1 Lloyd's
135 at 153 (CA) Sir Thomas Bingham M.R. stating 'a handwritten or typed
document plainly is [original]'.
[FN8]. The discussion paper of the ICC's Department of Policy and Business
Practice in Paris in April 1999 (cited in Alexia Ganotaki "Originals sin"posted 24 Jan 2003 in volume 6 issue 4 of Trade & Forfaiting Review (http://
www.tfreview.com/archive.asp_<accessed at the time of writing (March
2004)>)).
[FN9]. Ibid.
[FN10]. Bank of Tokyo Research International (ed) (1999) p 130 (inJapanese).
[FN11]. [1999] Lloyd's Rep. Bank. 219_(CA).
[FN12].
_http://www.iccwbo.org/home/news_archives/1999/original_document_
language_in_ucp_500.asp <accessed at the time of writing (March 2004)>.
[FN13]. Policy Statement 'The determination of an "Original" document in
the context of UCP 500 sub-Article 20(b)' Commission on Banking Techniqueand Practice, 12 July 1999 (Document number 470/871 Rev., 29 July 1999,
http://
www.iccwbo.org/home/statements_rules/statements/1999/the_determination_of_an_ original_document.asp <accessed at the time of writing (March
2004)>).
[FN14]. e.g. Credit Industriel et Commercial v. China Merchants Bank
[2002] EWHC 973 (Comm); Voest-Alpine Trading USA Corps v. Bank of
China 167 F. Supp. 2d 940 (2000).
[FN15]. In Western Int'l Forest Prods v. Shinhan Bank, 860 F. Supp. 151(S.D.N.Y. 1994), the beneficiary of a letter of credit, though not for fraudulent
purposes, stamped "original" an inspection certificate received by fax fromthe issuer of the document.
[FN16]. [1998] Lloyd's Rep. Bank 173.
[FN17]. Glencore International AG v. Bank of China [1996] 1 Lloyd's Rep 135
at 148.
[FN18]. For more details, see conclusion below.
[FN19]. ICC publication number 500/2.
[FN20]. Article el(b).

[FN21]. Byrne & Taylor "ICC Guide to the eUCP" (ICC publication number
639)_p 105.