In Canada, until recently, the answer to the second question would appear to have been “yes”. The only recognised remedy for an allegedly improper call was against the issuing bank in cases of clear fraud communicated to the issuing bank before payment. In view of the recent Saskatchewan Court of Appeal decision in Veolia Water Technologies Inc v K+S Potash Canada General Partnership,2 there may now be room for an injunction against a beneficiary to prevent it from violating an express condition agreed between the beneficiary and the customer.

A survey of recent case law in England, Australia, Singapore and Malaysia shows that courts in those jurisdictions have taken this step and permitted such injunctions. Whether based upon notions of “unconscionability”, as in Singapore and Malaysia, unnamed equity principles, as in England, or possibly a duty of honest performance in Canada as advocated for here, beneficiaries may not agree to conditions to obtain autonomous standby letters of credit, and then rely upon autonomy to shield themselves from the consequences of non-performance.