In this judgment the Court has explained that:
- the failure to indicate in a bank guarantee all the conditions of the obligation which was secured thereby is not per se a sufficient reason for challenging it;
- the period, for which the guarantee is issued should not be necessarily equal to the period of performance of the principal obligation which is secured by such guarantee or exceed the latter – it may be shorter than the period of principal obligation;
- the requirements of the law concerning the written form of the guarantor’s obligation are complied with if the transaction of bank guarantee is made by way of sending the document in question by the debtor to the creditor via any means of communication enabling it to be reliably established that the document has been issued by the person that made this unilateral transaction. Therefore, the requirements of Art 368 of the Civil Code on the written form of bank guarantee shall be considered complied with when, for instance, the guarantee has been issued in the form of electronic message with the use of SWIFT. In so doing, even the failure to observe the simple written form of bank guarantee does not per se entail its invalidity: the persons concerned may bring written or other proofs confirming the transaction and its conditions (para 1 of Art 162 of the Civil Code);
- the lack of the signature of the chief accountant of the company which issued the bank guarantee may not serve as a ground for deeming such guarantee invalid.
Practical consequences: the present explanatory judgment continues the policy of the Supreme Commercial Court aimed at the protection of security interests and minimization of the opportunities to destroy such transactions on purely formal grounds. All the same, the judgment does not provide that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code. Therefore, the interpretations therein are binding upon courts only in disputes which may arise in the future.