Mr. Millard practices in the area of finance, representing foreign and domestic financial institutions. He is extremely active in the public finance area where he represents banks and insurance companies providing credit enhancement and liquidity support for various issues of bonds, notes and certificates. He has represented institutions with trust departments when they have acted as trustee for such issues. Mr. Millard has acted as special counsel to several banks in connection with the bankruptcy of Orange County, California. Mr. Millard is currently an Adjunct Professor of Law at the USC Law Center where he teaches finance and has been active in local government, having been elected as a trustee on the Altadena Library Board. He was recently appointed by the Los Angeles County Board of Supervisors to the Judicial Procedures Commission for the County of Los Angeles and served as its chair from 2000 to 2002.

His

His Education

A.B., cum laude, University of California at Los Angeles (UCLA), 1969, Pi Gamma Mu, Phi Beta Kappa
J.D., University of Chicago, 1972, Phi Kappa Phi


His Professional Associations

American Bar Association:

Chair, Study Group on Legal Assistants, Committee on Real Estate Financing, Section of Real Property, Probate and Trust Law (1982-1983); Chair, Subcommittee on Asset Sales and Loan Participations, Section of International Law and Practice (1986-1988); Chair, Subcommittee on Letters of Credit, Section of Real Property, Probate and Trust Law (1987-1988)

State Bar of California:

Member, Resolutions Committee of the Conference of Delegates (1986-1987)

Los Angeles County Bar Association:

Member, Board of Trustees (1985-1987); Liaison to the State Bar Board of Governors (1985-1988); Chair, General Real Estate Subsection, Real Property Section (1981-1982); Member, LACBA Executive Committee for the Conference of Delegates (1982-1985); Member, Board of Directors, Public Counsel (1984-1987, 1990-1992); Member, Board of Directors, Los Angeles County Bar Foundation (1991-1998; President, 1997-1998)

His Publications

Co-Author, "Letter Perfect," California Law Business, Los Angeles Daily Journal (February 20, 1996)

Co-Author, "The New Risk-Based Capital Framework and its Application to Letters of Credit," The Banking Law Journal, Warren, Gorham & Lamont (November-December 1989)

Co-Author, "How Letters of Credit are Treated in FRB Risk-Based Capital Guidelines," Letter of Credit Update, Vol. 5, No. 1, Government Information Services (January 1989)

SOURCE: www.whitecase.com  
 

And, His Views (As told to Ravi )

Q1: Is UCP, law or manual of instructions?

It is supposed to be custom and practice. Thus, by incorporating into a letter of credit the UCP, the issuer is agreeing to follow certain customs and practices. It is, in my opinion, a contractual undertaking.

Q2: How does the court take UCP - as enforceable law or as manual of instructions for use as a guide/evidence in the court for interpretation/ enforcement of the national law, say Contract Act?

The courts are, for the most part, all over the place. I think, however, they see the UCP as a set of rules that an issuer obligates itself to follow. It is not law, though some courts have interpreted it as such, or at least have come close to doing that.

Q3: If a manual of instructions what law recognizes UCP for use as a guidebook in the court of law?

Contractually, one can bind oneself to a procedure or set of rules. This is what issuers do when they incorporate the UCP into their letters of credit. By incorporating the UCP into their letters of credit, they are saying they will perform their functions in accordance with these rules. The UCP is not specific enough to be a manual of instructions, though such a manual could be derived from the UCP which commits an issuer to certain specific procedures which are consistent with the UCP.

Q4. What is the status of UCP vis-a-vis national law?

It is not national law and, in the United States, it is not really state law. The primary law for the states which governs the use of letters of credit is the Uniform Commercial Code. In addition, there may even be other state codes dealing with contracts, clause interpretation, etc. which would pertain to letters of credit issued in that particular state.

Q5: Some bankers say LC is not a contract, but a set of instructions based on underlying contract. Do you agree LC is not a contract?

It is, of course, not a bilateral contract because it is signed by only one of the parties. On the other hand , if one were to take the entire three party relationship as a whole (issuer-applicant-beneficiary), and courts sometimes do this, there are attributes which could, for some purposes, cause it to be viewed as a contract. In any event, a letter of credit is binding on the issuer and that is the important part.

Q6 I received a case from a banker in Egypt. The issuing bank is stopped by the court order not to pay the LC. The confirming bank thereby refuses to pay the confirmed LC. The payment by the confirming bank is goverened by UCP. Can the confirming bank override the UCP keeping in view the National Law that stops payment by the issuing bank?

A confirmation is an independent undertaking by the confirming bank so unless the law applicable to the confirming bank permits a refusal to pay in these circumstances, then absent other facts, I would think the confirming bank would still have to pay.

Q7. An LC may stipulate a bill of exchange (B/E). The LC, as you know, is goverened by the UCP, while B/E by the national law. The ISBP specifies how to examine B/E for compliance.The B/E is thus governed by two different sets of rules. Hence,some LC people suggest LCs should not stipulate B/E. But some country's trade regulations require B/E. How to resolve such conflicting situations?

It is hard to answer this without knowing more but a bill of exchange evaluated under the UCP is sufficient for purposes of a letter of credit, but it does not follow that such a evaluation would be sufficient for other purposes. A bill of exchange may have to be evaluated for other purposes under other laws or conventions for other purposes, but I am not sure that would make for a conflicting situation. In other words, a bill of exchange that is evaluated under the UCP for purposes of paying under a letter of credit does not bind someone reviewing the bill of exchange for other purposes where another law or set of rules may govern

Q8. How about the transport documents - they are governed by UCP as well as by national commercial law. The bankers are required to follow international UCP. Should they know as well the law of the country in which they are working?

There are different standards for different purposes. To be an acceptable document under the UCP, one would follow the UCP. For other purposes, such as whether the document is legal or appropriate, one would follow other rules. Remember, the UCP just requires that documents meet documentary conditions on their face and does not require that they be legal or valid or contain other necessary information

Q9. Keeping in view the conflicting situations as stated in the aforsaid questions the question arises whether the banker should be document examiner as present UCP says, or simply be document forwarder with obligation to pay with recourse if all the required documents are presented but without the responsibility to examine . Let the buyer examine the documents with recourse. Hope my question is clear

The banker can examine for what he or she is told to examine. If more is needed or desired, then the banker is not the person to do it. It is a difference of mere appearance versus substance. The banker is not equipped to determine substance, at least in the role of a letter of credit issuer.