• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.22
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• pp.3-48
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• 2004

Many presentations of documents are rejected because credits have been incorrectly issued. One reason of rejecting the documents is related with error in application stage of L/C. Errors may take the form of mismatches between the terms of the sales contract and the provisions stipulated in the credit. Thus, Article 5 encourages applicants to make their contribution to the smooth running of the letter of credit process by being unambiguous and brief. Another reason that the banks reject the documents relates to the ambiguity of the term "International Standard Banking Practice" That is to say, UCP500 Art.13 introduced the term "International Standard Banking Practice"(ISBP) without the definition so that one wonder what ISBP is or how ISBP apply in daily work of bankers, examination of documents. From hence, International Chamber of Commerce(ICC) started the work to document ISBP at May 2000, finally approved the result last year and published the publication titled "International Standard Banking Practice for the examination of documents under documentary credits." By applying ISBP in document examination stage, I expect that the freqency of rejecting the documents grow less and bankers' work of examination become easy. On the other hand, ISBP is supplement to UCP500 so that the interpretation of ISBP is made on the basis of understanding of UCP and its underlying principles. So, I reviewed each paragraphs of ISBP on this basis and tried to indicate contradiction between ISBP and UCP500. But because of reading not enough, I failed to search the connotative sense many paragraphs have.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.67
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• pp.1-21
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• 2015

U. N. Convention on Contracts for the International Sale of Goods (hereinafter the 'CISG' or the 'Convention') has been in force more than 37 years. The CISG responds to the need for uniform sales law. First of all, the biggest barrier against the uniformity in sales law is so-called "homeward trend". Professor Honnold, who served as secretary of UNCITRAL during the time in which the CISG was developed, pointed out the danger of "homeward trend" like this in his Article. "One threat to international uniformity in interpretation is a natural tendency to read the international text through the lenses of domestic law." CISG Article 79 is the principal provision governing the extent to which a party is exempt from liability for a failure to perform any of his obligations due to an impediment beyond his control. So-called 'Manfred Forberich' decision regarding the article 79 represents the most extreme example of what is likely the most dangerous error that tribunals applying the CISG can make. CISG Article 79 only governs impossibility of performance, and there is a controversy whether a disturbance which does not fully exclude performance, but it considerably more difficult or onerous(hardship, change of circumstances, economic impossibility) can be considered as an impediment. Unlike PICC and PECL, the CISG governs contract of sale. Therefore, events such as a sudden increase in the price of raw materials or a dramatic devaluation of currency, will not allow the seller to avoid his liability for non-delivery of the goods or to require renegotiation of the terms of the contract of sale. We should bear in mind that the CISG should be interpreted and applied in the context of the CISG itself.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.201-220
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• 2016

A bill of lading is a document which is signed by the carrier or his agent acknowledging that the goods have been shipped on board a named vessel bound for the destination and stating the terms on which the goods so received are to be carried. Therefore, the bill of lading is a document of title enabling the holder to obtain credit from banks before the arrival of the goods, for the transfer of the bill of lading can operate as a pledge of the goods themselves. In the other words the bill of lading creates a privity between its holder and the carrier as if the contract was made. A bill of lading, for obtaining credit from banks, must appear to indicate the carrier's name and signature, the "shipped on board" notation, the port of loading and unloading stated in the sales contract and the credit. Data in the bill of lading, when read in context with the sales contract, the credit, the bill of lading itself and international standard banking practice, need not be identical to, but must not conflict with, data in that bill of lading, any other stipulated document, the sales contract or the credit. The surrender bill of lading, stamping "surrendered" on the original bill of lading by request of the shipper, is not recognized the legal effectiveness as a document of title by the statutory law and court. The surrender bill of lading may increase the risk of impossibility of payment to the holder. Therefore, the surrender bill of lading should be used restrictively between the credible parties and suggested to avoid in the other cases.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.127-151
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• 2016

UNIDROIT Principles of International Commercial Contracts(PICC) was published in 1994. PICC has been functioned as a guideline of international commercial contracts, an applicable law to govern a contract by the agreement of the parties to a contract, general principles of law and lex mercatoria. In addition, PICC has a role of interpreting or supplementing international uniform law instruments as well as domestic laws, and also has served as a model for national and international legislations. PICC has been accepted as a authoritative source of knowledge of international trade usages of international commercial contracts to the arbitral tribunal rather than domestic court because it excluded the characteristics of hard law at the drafting stage. This article dealt with the rule on gross disparity of validity which fall outside the scope of UN Convention on Contract for the International Sale of Goods(CISG), which has obtained a leading legal position of uniform law in international sales of good. In other words, PICC suggests a series of meaningful solutions to the issue of gross disparity of contract which is the most complicated among legal disputes occurring during the process of conclusion of contact and also extremely different and diverse between legal systems. This article covered the issue of gross disparity of contract at the conclusion of contact and suggested the legal basis of several rules related to the gross disparity by analysing gross disparity rule of PICC. Furthermore, this article suggested legal check points or implication as well as interpretation and evaluation on doctrine of laesio enormis and undue influence or unconscionability. This article also dealt with a comparative analysis with Principles of European Contract Law(PECL) and Common European Sales Law(CESL) which have important legal positions in the area of international commercial contract as well as in terms of close relationship to PICC by linking with recent court or arbitral tribunal rulings.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.23-43
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• 2016

This study describes the exclusion of the seller's liability for defects in title under CISG and UCC. Through comparing two provisions, this article provides contracting parties with guidance regarding choosing governing laws and practical advice. CISG and UCC states not only the seller's liability for defects in title but also the exclusion respectively. Under two provisions, contracting parties who wish to avoid this liability may agree that the liability will not apply. Under UCC ${\S}$2-213(2), the seller's warranty can be disclaimed by specific language in the contract or by the circumstances surrounding the transaction. Although there is no express exclusion provision under CISG Article 41 and 42, Article 6 allows contracting parties to agree that they may exclude the application of the seller's liability. Both Article 42 under CISG and ${\S}$2-213(3) under UCC provide where the buyer furnishes specification to the seller. Under UCC ${\S}$2-213(3), it is the buyer's warranty to hold the seller harmless from any claims which arise from the seller complying with specification furnished by the buyer. But, under CISG Article 42, the seller's duty is excluded if the third party right or claim result from the fact that the seller has complied with specifications provided by the buyer. Therefore Article 42 does not charge the buyer with the duty, but rather limits the circumstances under which he could cause claims under Article 42. Interestingly, CISG has provisions which are absent from UCC. First, under Article 41, the seller escapes the liability if the buyer agree to take the goods subject to the third party right or claim. Second, under Article 42(2)(a), the seller is not liable if the buyer knew or could not have been unaware of the third party right or claim at the time of the conclusion of the contract.

• The Journal of the Korea Contents Association
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• v.14 no.6
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• pp.397-406
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• 2014

Recently, China has expanded enormously its economic trade exchange bilaterally with other nations and developed as the second largest aviation market in the world. While open skies bilateral agreements were signed between China and other countries, the agreement processes influenced the aviation market structure and market sharing heavily. This paper analyzed the Chinese aviation market by such three angles as market scale, competitive situation, and market concentration. It is concluded that the Chinese aviation market is the oligopolistic market structure tested by the Herfindahl-Hirschman Index. Finally, suggestions are given to the airlines operating in China such as joining the air alliance, paying attention to a different frequent flyer program (FFP) etc.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.465-495
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• 2011

Domestic franchised businesses have been showing relatively fast growth, but the growth is expected to slow down as in those developed countries. In face of this changing market environment, domestic franchisers will have to turn their eyes abroad to achieve sustainable growth. On the other hand, more international franchisors could pursue expanding into the Korean market due to economic or strategic reasons in their home countries. In general, enterprises are faced with several barriers when entering foreign markets by franchising their operation. Issues relating to such entry barriers can be broadly classified into legal and managerial. To begin, international franchising necessitates enterprises to handle various aspects of legal issues. There are no internationally unified rules for franchise agreements as in international goods purchase contracts. This forces franchisors to have deep knowledge of concerned regulations and practices of each of the individual target countries, in particular franchising practices which differ from those of their own countries in terms of rights and obligations of the involved parties. Having regard to this situation, this study reviewed the EU's PEL CAFDC and other domestic and overseas regulations governing franchising. From the results, several contractual obligations were derived that need to be taken into account when handling the issues around the international franchise agreement. In closing this paper mainly having in mind enterprises in various business lines seeking to expand into international franchising, some unmet needs are worth commenting. First, there is an urgent need to establish practical guidelines along with the model agreement addressing the issues of international franchising in the absence of any unified international rules. Second, to meet the first need above, it is needed that the relevant authorities conduct a comprehensive review of the existing franchising regulations available across overseas countries and, based on the results, embark on gathering good common elements in the existing franchising regulations in individual countries, ultimately developing the best possible guidelines and examples.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.46
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• pp.105-130
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• 2010

CISG provides the place of payment at the Article 57 which if the buyer is not bound to pay the price at any other particular place, he must pay it to the seller (a) at the seller's p lace of business or (b) if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. When the parties have agreed that payment is to be made against the handing over of the goods or of documents, the place where this is to happen according to the contract or CISG is the place of payment. When the parties have not agreed to this, the place of payment is the seller's place of payment. The buyer does not send the money to seller's office, but pays it to the seller's bank account. Where payment is effected by a L/C, such operations shall be governed by UCP and collection of money governed by URC. The payment at the seller's place of payment affects the rate of interest, currency of money and jurisdiction which is interpreted by Brussel convention and Lugano convention. The principle on which the CISG is based, characterizes the obligation of payment as an obligation to be performed at the creditor's place of business. This principle affects the place of damage claims payable to be at the creditor's that place. Payment at the place of business is required, but not inside the place itself.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.62
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• pp.55-86
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• 2014

Korea has become a member of the United Nations Convention on Contract of the International Sales of Goods (the 'CISG') effective since March 1, 2005. As, therefore, the governing law of the general terms and conditions (the 'GTC') in the Government Foreign Procurement Contract (the 'Contract') is mandatorily fixed to the Korean Law, the CISG, as an International Convention, now having an equivalent or even higher status to the Korean Law, unless expressly excluded, will be priorly applied to the Contract where a transaction occurs between its members. In this regard, this study focuses on how to find the way for the CISG to be a governing law of the GTC in order to eliminate legal uncertainties and lacks of foreseeability prevailed in the international trade. For that purpose, the legal aspects of GTC, and the Buyer's remedy for the Seller's breach of the Contract are analyzed in accordance with the comparative study between the CISG and the GTC including the relevant case studies. As a result of this study, the application of the CISG into the GTC is highly recommended in order to reflect into the Contract such features as fairly harmonized for the interest of both parties. Taking this opportunity, a GTC, amended from the existing one, or newly formed, within the perimeter of not conflicting with the provisions of the CISG, including but not limited to the Civil Law and Commercial Law, is required in order to evenly share each party's responsibilities and obligations where the breach or remedy of the Contract is, and, thus, which will ultimately contribute to an efficient conduct of the Contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.63
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• pp.111-132
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• 2014

This paper analyzed the obligations of the parties entering into an international leasing agreements, focusing on the Draft Common Frame of Reference (DCFR) Book IV, Part B. The lessor's obligations are as follows. i) The lessor must deliver goods to the lessee by the due date of delivery so that the lessee can use the goods on the starting date of the lease agreement. ii) The lessor must conform with the contract so that the goods meet the purpose of the contract at the start of the lease agreement and throughout the period of the lease agreement. iii) If the lessee returns the goods upon the termination of the lease agreement, the lessor must cooperate with the lessee. The lessee's obligations are as follows. i) The lessee must pay rent, which is the most critical obligation of the lessee. ii) The lessee must cooperate with the lessor so that the lessor can perform the obligation to deliver the goods and accept the goods of which the lessee shall take control. iii) The lessee shall perform fiduciary duties while it uses and makes profits from the goods, and when the lessor cannot take any measure to protect the object, the lessee must prevent damage. Further, if the lessor pays expenses that are not considered necessary expenses, the lessor may not be reimbursed and must accept the goods after delivery to preserve them. iv) The lessee must give notice to the lessor if there is a possibility that a third party can claim rights to goods or infringe upon the lessor's ownership while using the goods. v) At the end of the lease period, the lessee must return the goods to the lessor.