2019 saw “Export 2.0” – phase two of the industry export plan – published by the Scotland Food & Drink Partnership. Building on the success of phase one (2014-19), the Plan affirms the Partnership’s commitment to supporting Scottish producers as they grow their businesses, and Scotland’s biggest export.
But clearly selling products beyond the UKis logistically more complex than selling goods within the UK. Which party bears the risk while the product is in transit? And – most importantly – how does the producer have certainty as to the timing and amount of payment once the product is out of its hands?
So what’s the risk to producers?
Products require to travel to end users. For the period in transit, the product will be in the hands of neither producer nor purchaser. Producers are – understandably – reluctant to relinquish possession of their product without receiving payment. Purchasers are – also understandably – reluctant to make payment for products without possession, or at least some comfort that the product is on its way.
How can this be resolved?
Letters of credit
Letters of credit are a form of finance provided by a lender to the purchaser of goods. Under a letter of credit, the lender agrees to make payment to a seller on behalf of the purchaser provided that specific conditionality is met, i.e. the seller has presented documents (for example, a bill of lading, commercial invoice) demonstrating that it has satisfied its obligations under the underlying sale and purchase contract. Payment is then made by the lender to the seller at, or as near as possible to, the time at which the product has left the seller’s hands (generally before the product is received by the purchaser).
The purchaser has comfort that payment is being made only when the product is in transit. The seller also has the comfort, prior to entering into a sale and purchase contract, of the covenant of the financial institution providing the letter of credit.
Food for thought
Financial Institutions are not infallible. Covenant and counterparty risk remain factors when relying on financial institutions for payment as they are, or would be, with purchasers themselves.
The purchaser’s lender may not operate in the UK. In which case, the purchaser’s lender may require to involve a UK bank in support of the structure. Depending on the terms of instruction, the role of the UK bank may be anything from a UK based point of contact for the seller to being liable to the seller for payment in accordance with the terms of the letter of credit.
Payment pursuant to a letter of credit requires presentation of correct, error-free documents. Since 2003 the International Chamber of Commerce has published a list of procedures (the International Standard Banking Practice for the Examination of Documents Under Documentary Credits) for document checkers in an effort to reduce the number of rejections, but discrepancies can still result in documents being rejected on first presentation.
Funding by way of a letter of credit must be consistent with the terms of the sale and purchase contract, which may require to be revisited if the requirements under the letter of credit change.
If, as likely, the seller already has facilities in place with a bank or other lender for which it has granted security, the terms of the facility and security documentation will require to accommodate the gap – however small – between possession of the goods being relinquished by the seller and payment being received.
Finally, it’s worth being aware that the purchaser will incur a cost for procuring a letter of credit, which is likely to be factored into the price the purchaser is willing to pay for the product.
Taking the right advice
Payment via a letter of credit structure can be a great source of comfort to sellers. However, the structure is not failsafe. Sellers have a responsibility to ensure that they are aware of and are able to deliver documents in accordance with the requirements of the letter of credit. In addition, sellers require to understand clearly the particular financial institution(s) involved in the payment structure, their particular roles and their financial standing.
Brodies is able to assist by advising on the interaction between the seller’s existing facility and security documentation and export finance, as well as the particular terms of a letter of credit, the role(s) of the various financial institutions within the proposed structure and its interaction with a sale and purchase contract. For further information please get in touch with Amy McVey or your usual Brodies contact.
The theme of Brodies Food & Drink Conference 2019 is New Markets: New Opportunities. For more information and to register your place please click here.
On September 12, 2019