Instrumentos financeiros internacionais no direito brasileiro: estudo sobre as cartas de crédito comerciais e as cartas de crédito standby

Abstract

Commercial letters of credit are widely used and established in international trade, as theyprovide security in transactions where there is usually a predominance of distance and a lack oftrust between the parties. At the request of an importer, banks issue the letter of credit thatrepresents an irrevocable commitment of payment to the exporter upon presentation ofdocuments related to the delivery of goods. It is an interesting instrument that has a triplefunction: means of payment, since it contains the bank's unilateral declaration to the exporter ofpayment promise; guarantee, bringing security of receipt of the price upon presentation ofdocuments, regardless of any subsequent action of the importer; as well as loan, depending on thesettlement arrangement of the bank set with the importer. The instrument was adapted to thestandby letter of credit, a guarantee to assure eventual defaults of a party in any type ofinternational transaction. In this dissertation, the concept, the operationalization, the rulesapplicable to commercial letters of credit and standby letters of credit are discussed from theinternational point of view and from the American law, due to the proliferation of letters of creditin the United States and the predominance of the financial institutions of that country in theissuance of the instruments. In view of the relevance of both instruments and the lack of specificlegislation on the subject, the legal nature of the commercial and standby letters of credit from theperspective of Brazilian law is also discussed in this dissertation. To do so, the instrument iscompared with institutes typical of Brazilian law, as well as there is an investigation on theunderstanding of jurisprudence on the subject. It is concluded that it is not possible to place theletter of credit in a typical institute of the legal system, once it is an innovative instrument,subject to its own rules. It is also discussed whether letters of credit are still effective instrumentsin international trade, based on data collection analysis that indicate a reduction in the use of theinstrument, and considering the disadvantages of letters of credit and difficulties in theirexecution. Finally, there are also other financial instruments that could potentially replace lettersof credit, including alternatives that make use of technology, and which also provide security forpayments related to international transactions.