ICC Banking Commission guidelines for dealing with queries
that could be the subject of court action
Approved
at the meeting of the Commission in Paris, 16-17 May 2001
Because there has
been some confusion about whether the ICC Banking Commission will provide
Opinions on queries that concern matters that could be, or that are the
subject of court action, the Commission wishes to clarify its position
as following:<
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Guiding principle:
The Banking
Commission will only respond to the facts in any query as they are presented
to the Commission. If the facts do not reflect the actual circumstances
of the case or dispute, that is not a matter for the Banking Commission,
but for the courts or other legal bodies to decide, if the dispute later
results in a court action.
Disputes which could become the subject of court action
- If, to the knowledge
of the Banking Commission, no court case has been filed, or whether
or not a dispute could later become a matter for court action, the Banking
Commission may, if requested, provide an Opinion concerning the facts
of said dispute as they are presented to the Commission. The Commission
is not responsible for determining which disputes may or may not later
become matters for a court to consider, nor is it responsible for determining
whether the facts, as presented to it, are an accurate reflection of
the circumstances of the case.
Disputes in which
a court case has been filed or in which a case is on appeal
- If it is known
to the Banking Commission that a court case has been filed, the Banking
Commission will not consider a query based on the facts relating to
that case. This will be Commission policy even if the facts (if recognized)
as presented are stated in a general way and are not said by the questioner
to relate to a specific case a court has been asked to decide. The controlling
words in this regard, written at the end of Commission Opinions, are
as follows: "If this query relates to a matter currently under
consideration by the courts, the ICC Banking Commission will refrain
from considering it for adoption as an Opinion." (Emphasis added)
- If a court case
has been decided, and the matter in question is on appeal, or could
possibly be the subject of appeal to a higher court, and known to the
Banking Commission, the Commission will not consider a query based on
the facts relating to that case.
Disputes in which
a court has ruled and no further court action is contemplated
- If a court has
decided a case, and if no further court action is contemplated, the
Commission may provide an Opinion based on the facts of that case, as
those facts are presented to it, provided that the request for an Opinion
is not made by a party to the case.
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