Analysis and Insights on ISP98 Rule 1.09(c): Electronic Presentations and "Electronic Record" Definition

DCW Editorial Note: This previously unpublished material reflects the thinking and writing of Professor James E. Byrne over the period of multiple years up to his passing in July 2018 in an effort to review and note usage of ISP98 during the first 20 years of the rules’ existence. Several leading bankers, lawyers, and corporate users of ISP98 offered constructive review and contributed valuable input to this material.

1.     Generally. The terms in ISP98 Rule 1.09(c) differ from those appearing in Rule 1.09(a) (Definitions) and (b) (Cross References). Unlike the other terms, the terms in 1.09(c) are not intended to provide meaning to the words used in ISP98, but to provide terminology for use in standbys that permit or require presentation by non-paper means. They are, therefore, a simplified form of customary usage.[[1]]

2.      Background of Rule 1.09(c). ISP98 was drafted during a time of technological revolution in which widespread attempts were being made to accommodate law, practice, and contracts to new forms of technology.[[2]] For the issuance of letters of credit such a revolution occurred in the 19^th Century with the advent of the telegraph. Letters of credit are more amiable to classification than negotiable instruments since there is no merger between the legal obligation embodied in the letter of credit and the paper on which it is written.