Gestione del rischio di credito e le modalità di pagamento internazionale

International payment instruments

An international means of payment/collection is the instrument that regulates relations between parties residing in different countries, a difference that entails considerable differences compared to payments made in a domestic market not only with respect to the greater risks involved in foreign transactions, but also with respect to the functioning of the specific means in the individual countries' legal systems.

Index

The operator, before defining which payment terms to apply, should carry out an analysis in the light of the multiple risk factorsas well as the needs of the other party.

The moment of payment

Advance, deferred, contextual payment

Establishing the time at which payment (together with the terms of return of the goods) must take place means the bearing or not of the risks of the transaction.

Payment, with respect to performance, may be in advance, in arrears or concurrent. The hypothesis of prepayment appears to be the ideal payment terms that any seller/exporter would like to practise, even if it is not the most remunerative. Indeed, the buyer, aware of the fact that the risk is borne entirely by him, might demand strong discount terms, or require the seller to provide a bank guarantee, which entails a financial burden on the part of the seller.

Instead, practising the deferred payment the situation is completely opposite to the previous hypothesis, in which case the risks are borne entirely by the seller (the non-payment or delayed payment). It will be the latter who will have to take action in order to try to recover the debt, an operation that is not always easy and that may require considerable financial outlays to the point of considering, in some cases, the hypothesis of waiving the recovery itself.

The moment of payment

Advance, deferred, contextual payment

Establishing the time at which payment (together with the terms of return of the goods) must take place means the bearing or not of the risks of the transaction.

The way

As regards the way in which the transfer takes place, almost all transactions now take place via SWIFTa computerised system of communication between banks using a uniform code so that definitions can be standardised, and which allows numerous operations to be carried out, from transferring money to issuing a documentary credit and, at the same time, provides greater speed and security to transactions.

Payment Instruments

Numerous tools are available to operators of international trade to settle payment terms, instruments that often have very different characteristics.

In order we will therefore have the following collection and payment instruments:

bank transfer;
electronic receipts;
the bank cheque;
the bill of exchange or promissory note;
the documentary takings;
documentary credit.

The use of one instrument rather than another depends on the evaluation carried out by factors such as the risks, the degree of knowledge and solvency of the counterparty, the type of agreement, the contractual strength, the product sector to which it belongs, the amount of the supply, and the norms and customs present in the reference market.

The international bank transfer

A bank transfer consists of a transfer of funds from a person's account (orderer) to the account of another party (beneficiary) at a foreign bank, and is a widely used means of payment in international transactions due to its low cost and relative ease of use. As far as costs are concerned, it is always advisable to establish with the counterparty who is to bear the costs of the transfer or the criteria for allocation.

It should be remembered, however, that the simple transferi.e. not backed by any kind of guarantee in favour of the addressee, does not constitute a safe medium as it is left to the discretion of the originator.
Notwithstanding the foregoing regarding advance and/or deferred payment, it should be borne in mind that it can often happen that the purchaser informs the beneficiary that he has made the transfer (e.g. by faxing a copy of the transfer note) and then asks for the goods ordered to be sent. In such cases, it is advisable to request the identification code of the transfer and check with your bank that the transaction has actually taken place and whether the time limit for revoking the transfer has expired.

Electronic collections

Thanks to the ever-increasing use of computer systems, certain forms of electronic collections have developed and then spread, which allow for such speed and security that they are becoming increasingly popular among operators of international tradevery attractive in the context of transactions involving countries where the risk of non-collection is not affected by country risk, for example.

Also referred to as Debit TransferThey are arranged by the creditor on the basis of a prior authorisation by the debtor and provide for "subject to collection".

Although they are not a means of payment that can guarantee the certainty of collection, they are an excellent substitute for credit transfers as they are tied to a date and visible in the event of default.

Individual instruments vary from country to country with different characteristics and the most common ones in the EU are outlined below.

La LCR (Lettre de change relevé), in use in France, is an instrument similar to the bank receipts (Ri.Ba.) in use in Italy. In practice, it allows the dematerialisation of bills of exchange and receipts and is managed via a telematic system.

In Germany and Austria, on the other hand, there is the Lastschrift. The operation of this tool, similar to the RID in use in the Italian banking system, allows the creditor to collect a given amount by simply presenting it for collection. It requires, as in the case of the RID Italian, prior authorisation by the debtor. There are two types, the Lastschrift by type A provides for a permanent authorisation by the debtor. The Lastschrift by type Bwhich is the most commonly used type, instead provides the debtor with the possibility of contesting the debit and requesting its reversal within the prescribed time limit.

In Spain it is called IEF (Incaso electronico de efecto) and has a similar function to the LCR French. With this instrument, the collection becomes final after the 15-day period.

The regulation of securities in international transactions

As far as credit securities are concerned, two major areas should be distinguished. The one concerning the countries of Civil Lawwhich have acceded to the Geneva Conventions on bills of exchange (1930) and cheques (1931), and the area concerning the countries of Common Law (for Great Britain the reference legislation is contained in the Bills of Exchange Act of 1882 and in the Cheques Act of 1957, for the US the discipline is contained in theUniform Commercial Code). For the countries of Common Law differences are often substantive and not just terminological, as may be the case between the different countries of the Civil Law.

In Common Law countries, the 'possession is worth title' rule does not apply. Civil Lawand the bearer's ability to demand the performance contained in the note is given by the bona fide acquisition of the note itself. The bill of exchange, whether issued in the form of Bill of Exchange or Promissory Note, is not considered an enforceable title. Consequently, in the event of default, an ordinary action must be brought against the defaulting promisor.

Another difference is that, whereas in Civil Law the bill of exchange and the cheque are configured as two different types of securities, in Common Law the cheque is regarded as a minor species of promissory note.

In countries belonging to the Civil Law On the other hand, despite the above-mentioned Geneva Conventions, it is possible to find considerable differences between the national regulations on debt securities in the various countries. For example, not all legal systems contain, like Italy or Germany, general regulations on debt securities, and furthermore, the Conventions themselves provide, through the mechanism of reservations, for the possibility of derogating from the Convention. It should also be borne in mind that some countries (e.g. Turkey, Serbia and others), although they have signed the Convention, have not ratified it, with the consequence that it has not entered into force in their national legal systems.

The Regulation of Debt Securities in Italian Private International Law

Article 59 of Law 218 of 31 May 1995 introduced two new rules of private international law: the first for bills of exchange, the second for other debt instruments.

The former are regulated by means of a recitical or material reference to the Geneva Conventions on bills of exchange and cheques (Art. 59(1) and (2)), whereas for other securities the conflict rule refers to the state law in which the security was issued and for obligations other than the principal one to the law of the State in which each was entered into (Art. 59(3)).

Bills of exchange are therefore governed by the Geneva Conventions (i.e. the Convention on Conflicts of Laws concerning bills of exchange and promissory notes of 7 June 1930, made enforceable in Italy by Law no. 1946 of 22 December 1932, and the Convention on Conflicts of Laws concerning bank cheques of 19 March 1931, made enforceable in Italy by Law no. 61 of 4 January 1934).

The novelty is thus not in the connecting factor, but in the replacement of a conventional rule (which was opposed to a common law rule) by a single common law frameworkintended to apply 'also' outside the scope dictated by the conventions themselves.

The bank cheque

A cheque is an instrument that under Italian law is a security. This means that it possesses the characteristics proper to that category - abstractness, autonomy and formalism - in addition to the nature of an enforceable title that entails (after the protest has been lifted) the possibility of not having to take legal action to see one's right recognised but the possibility of accessing, after certain formalities have been carried out, directly to the enforcement process.

The bank cheque has the formal structure of the bill of exchange, but usually performs a different function: it is not, in fact, a credit instrument, but constitutes a payment instrument at the service of those who have funds available at a particular bank. It may be defined as a promissory note, either to order or to bearer, containing an order addressed to the bank (drawee) to pay a specified sum on demand and entailing, on a subsidiary basis, the promissory liability of the issuer (drawer) and of all subsequent signatories vis-à-vis the lawful possessor requesting the performance.

Given the possible differences in the regulation of cheques in other foreign legal systems (the foregoing concerns the regulation of cheques under Italian law), the use of this instrument in international transactions is discouraged.

The discipline of the cheque in the US

The bank cheque is widely used in the US and, unlike in Italy, also for considerable amounts. However, it should be noted that, unlike in many Civil LawIt is not a debt instrument and is not an enforceable title. It follows, therefore, that it will be considered devoid of the typical features of abstractness and autonomy, thus being linked to the counter-performance for which it was issued. This implies that in order to obtain recognition of the debt and to be able to proceed with enforcement it will be necessary to obtain a judgment of condemnation.

Bills of exchange

There are two distinct types of bills of exchange:

the bill of exchange (internationally Bill of Exchange), contains the order that one party (the drawer) gives to another party (the drawee) to pay to a third party (the borrower) a specified sum of money;
the promissory note (internationally Promissory note), a security containing a promise made by a party (issuer) to pay a specified sum of money at a specified due date to a beneficiary.

Both bills of exchange and promissory notes qualify as unilateral legal transactions. However, whereas for the promissory note it is common ground that it is unilateral promisethere are two different orientations for the promissory note: some tend to include it in the promise of the third party's deed while others tend to frame it in the pattern of the delegation.

From a legal point of view, the bill of exchange is a universally recognised debt instrument and, even if not enforceable in all countries, still constitutes proof of non-payment.

It is a widely used instrument in medium to long-term payments involving supplies of significant amounts (often of capital goods and/or plant). This instrument allows the seller, through a credit assignment and mobilisation transaction, to quickly collect the amount of the supply and at the same time the buyer to be able to purchase the asset and then pay for it in instalments.

The cheque-sized Pagaré

There is a particular figure frequently used in Spain, the 'Pagaré cheque format', which is basically a Pagaré domiciled for payment at a bank where the issuer has funds. In fact, it corresponds to the equivalent of a post-dated cheque, albeit permitted by current law.