Canada: Letters Of Credit: When Not To Pay

A recent case has explored when a bank will be relieved of its duty to make payment under a letter of credit in a situation where the payment terms of the underlying contract are subject to a dispute under foreign law proceedings. Below we will highlight the potential impact of this case, including, the scope for foreign law proceedings to impact on a bank's obligation to pay and recommend the key points to check in respect of an English law letter of credit which is subject to an alleged fraud.

The case

The case of Petrosaudi Oil Services (Venezuela) Ltd v Novo Banco SA (1) PDVSA Servicos SA (2) PDVSA Services BV (3) [2016] EWHC 2456 (Comm), concerned an English law letter of credit where the underlying contract (for oil drilling services) was governed by Venezuelan law. A dispute arose between the parties to the underlying contract which affected invoices totaling $129M and had been referred to arbitration. Whilst the final outcome of the arbitration was awaited, the arbitrators had made a ruling that the key payment term of the contract (which stated that invoices were deemed accepted and due for payment if not disputed within 15 days) was void. Despite this ruling, the claimant submitted a demand for payment under the letter of credit. The claimant sought confirmation that it was entitled to make a presentation under the letter of credit and receive the $129M in payment from the bank.

What should the bank do?

Under an English law letter of credit, the bank's obligation to make payment is a separate and independent obligation from the underlying contract to which it relates and the performance (or non-performance) of the obligations set out in that contract. Once a demand for payment has been made by the beneficiary of the letter of credit in the required format, the bank is required to fulfil its obligation to make payment, unless the fraud exemption applies.

In this case, the demand documents were presented in the required format and included a statement that 'the applicant is obligated to the beneficiary to pay the amount demanded under the drilling contract...'. The bank was not relieved of its obligations to make payment simply because of the existence of the ongoing dispute between the parties. Accordingly, the bank stated its intention to make payment.

At this point the other contract party ('PDV') sought an injunction to restrain the bank from making payment on the basis of the fraud exemption. The parties agreed a holding position (where the bank would not pay) pending the trial at which the impact of the arbitration ruling on the fraud exemption could be considered in full.

Impact of the foreign law arbitration

For the fraud exemption to apply, a bank is entitled to withhold payment where it is clearly established or obvious that the beneficiary was involved in a fraud relating to the transaction and where the bank knew of the fraud. The Court's view was that the fraud element would be satisfied in this case if the beneficiary had no honest belief in the statement that PDV were 'obligated to pay' or that it was made without caring whether it was true or false.

The Court concluded that:

  • the effect of the interim foreign law arbitration ruling was to remove the contractual obligation on PDV to make payment of the invoice until the arbitration proceedings were concluded;
  • the meaning of the statement ' pay' in the demand was 'obligated to pay now';
  • the presenter (the beneficiary's global counsel) would have considered the correct interpretation of the term 'obligated'. Either the presenter had made the statement in the demand for payment without believing it to be true, or he had been reckless as to its falsity, by 'wilfully shutting his eyes to the obvious'.
  • the fraud exemption applied and the bank was not required to make payment.

What if there was no dishonesty?

The Court considered what would happen if a demand for payment was made which the beneficiary believed to be true, even if it contained a statement of fact that was incorrect. It noted that 'proof of falsity at trial in a case where there was an honest belief that the presentation was compliant on its face at the time would not give the bank a defence' to making payment i.e. the element of dishonesty is a crucial part of the fraud exemption.

Points for Banks to check when considering an English law demand for payment:

  • Do the demand documents comply with the requirements set out in the letter of credit? If so, the bank is under an obligation to pay unless the fraud exemption applies.
  • Is the bank aware of fraud? The fraud exemption applies if the bank is aware that there has been a forgery of documents or that the request for payment is made fraudulently.
  • Is the fraud obvious or clearly established? There is common law commentary to the effect that it is not enough to suspect fraud, it must be 'established' or 'obvious'.
  • Should the bank withhold payment if there is a dispute between the parties to the underlying contract and fraud has not been established? No. An underlying dispute will not affect the bank's obligation to pay. The obligation to pay can be indirectly affected by proceedings only if they give rise to a situation where the beneficiary chooses to behave fraudulently.

Letters of credit are often for significant sums and a payment in error or a failure to pay when due can carry reputational as well as legal risks. If you have any concerns about whether a payment is required in any given situation we would recommend that you take advice and would be pleased to help you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
14 Sep 2017, Seminar, Birmingham, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

18 Sep 2017, Seminar, London, UK

Our annual event as part of the London Design Festival is now in its fifth year. We would be delighted if you are able to join us again.

21 Sep 2017, Seminar, London, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.