• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.38
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• pp.155-180
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• 2008

The purpose of this paper is to examine the major elements of Arbitration Clause in international investment contracts and to help the investor, especially foreign investors, considering these elements when they draft the contracts. First of all, to describe the extent of the arbitrable issues broadly is very important by using the phrase such as "disputes in connection with". Furthermore in order to be enforceable, the issues must be a subject-matter to be submitted to arbitration in accordance with the laws of the place of arbitration and the law application to the merits of the disputes (N.Y. Convention, Art. II). Second, the appointment of the arbitrators usually shall be based on the principle of freedom of contract. If the parties do not agree on the appointment, it is decided in accordance with the arbitration rules of the institution by the tribunal. Third, the procedural rules of the arbitration are the arbitration rules of the arbitration institution in case of institution arbitration, unless otherwise agreed. Forth, what is the most importance element of Arbitration Clause is the place of arbitration. In this case, also the principle of freedom of contract has priority. Unless otherwise agreed, Washington is the place of arbitration in case of ICSID Arbitration, but in case of ICC Arbitration, neutral third country may be the place of arbitration. However in case of ad hoc arbitration, both parties should indicate the place. If not, the whole arbitration may be paralysed by an uncooperative party. Besides the major elements, I examined the relation between the arbitration clause and award enforcement in terms of sovereign immunity. The enforcement of awards in the field of state contracts many encounter the problem of the sovereign immunity, which means that the State itself or the State enterprise is the contract partner. To avoid the this problems, it is advisable for the parties insert the clause such as ICSID Model Clause XIX.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.59-85
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• 2008

An independent bank guarantee(aka an independent guarantee) is provided as an security on a principal obligor's performance of his obligation, and a guarantor should pay the guaranteed amount only upon a beneficiary's written demand. A standby letter of credit has been used in the United States, since it was construed that a bank should not issue a guarantee. There was wide misunderstanding that a standby letter of credit differs from an independent bank guarantee. However, a standby letter of credit is the same security as an independent bank guarantee, and in international business a standby letter of credit is not differentiated from a independent bank guarantee. An independent bank guarantee are independent from the underlying contract, unconditional, and irrevocable. And a guarantor should pay upon written demand without proving a principal obligor breaches the underlying contract. These features of an independent bank guarantee has been abused in international transactions. Thus it has been proposed that some exceptions to the features of an independent bank guarantee should be allowed. United Nations Convention on Independent Guarantees and Standby Letter of Credit(1995) stipulates some exceptions to payment obligation. Export bond insurance, a part of export insurances, operated by the Korea Export Insurance Corporation under the Export Insurance Act, is used as a security for unfair calling by a beneficiary under an independent bank guarantee. Most of the export subsides by the government are prohibited under WTO's Agreement on Subsidies and Countervailing Measures. However, as export insurance is allowed under the WTO, it operates a significant role in enhancing the export. In the event that export bond insurance is provided for a guarantor, an obligor who is subject to recourse by a guarantor, can be exempt from the recourse in case of unfair calling. The Korea Export Insurance Corporation, an insurer, bears unfair calling risk by a beneficiary. Generally it is understood that a demand shall be made before the expiry of an independent bank guarantee. However this is not absolutely true, it shall be decided by URDG, ISP98, the governing law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.37-58
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• 2016

CISG Article 50 contains the remedy of price reduction but limits it if the seller has a right to cure. Reduction of price presupposes that the seller delivers non-conforming goods, and that the buyer decides to accept them nevertheless. The remedy of price reduction differs from all other remedies provided in CISG with regard to it effects and to the time-limits. As to the time-limits, unlike Articles 46 and 49, Article 50 does not contain the element within a reasonable time. CISG imposes no period of time for his reducing the price. The buyer's right to declare a reduction of the price is expressly subject to the seller's right to remedy any failure to perform his obligations pursuant to Articles 37 and 48. The problem lies in determining from where to take the figures for comparing the value of the goods contracted and of those delivered. The price level in this place will usually determine his considerations as to resale or repair of the defective goods. The buyer must examine the goods, or cause them to be examined, within, as short a period as is practicable in the circumstances. The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.68
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• pp.89-121
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• 2015

Investor-State Dispute Settlement(ISDS) grants a foreign investor the right to access an international arbitrator, if he believes actions taken by a host government are in breach of commitments made in an investment agreement or an investment treaty. The arbitration procedure of ICSID is made specifically to resolve investment disputes, so most of investment disputes have been settled in accordance with the procedure. Owing to limitation of dispute settlements through the ICSID arbitration procedure, several investment dispute conciliation schemes have been emerged as alternatives. In the case of a conciliation, the conciliation procedure will be in progress based on arbitrary agreement between parties, and if both parties agree on a conciliation program, then the arbitrary execution rate is relatively higher than that of arbitration procedures. In addition, it is evaluated that the time duration of conducting a conciliation procedure is in general rather short in 8 to 24months, and its incumbent cost is also rather inexpensive. Most of all, through amicable settlement of a dispute between a foreign investor and a host state, the foreign investor may continue his investment activities without a hitch, while the host state may invite more investment without any risk of losing its external credibility. In conclusion, it is desirable to lead any investment dispute between a foreign investor and a host state settle in accordance with the dispute settlement procedure as specified in the relevant investment agreement. In addition, to make the foreign investor continue his investment activities, it will be necessary to provide a separate investment dispute conciliation system aside from such arbitration procedures to cope any unexpected incident flexibly.

• International Commerce and Information Review
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• v.19 no.3
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• pp.25-44
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• 2017

In 2017, the EU-Japan FTA talks were resumed ahead of the G20 summit in Brussels, Belgium, and agreed to abolish tariffs on 95% of all trade items. These figures are highly liberalized agreements that are equivalent to the Pacific Rim Economic Partnership Agreement (TPP). Particularly, Japanese automobiles were aggressively negotiating the abolition of tariffs with 7-year grace period and the gradual elimination of European cheese in 15 years. If the agreement is concluded, the tariffs of 1 billion euros (about 1.3 trillion won) will disappear, and Korea, which has similar industrial structure with Japan, will be hit by the processed food, chemical products, medical equipment, dairy products and automobile industries. do. The purpose of this study is to examine the mutual recognition agreement (MRA) that can directly affect the Korean companies in the content of the Japan-EU FTA and to suggest the implications for the Korean export companies.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.26
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• pp.35-86
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• 2005

International distributorship contract(IDC), as well as international agency contract is a type of contract which is most frequently used in international trade. But one of the main difficulties faced by parties of IDC is the lack of uniform rules for this type of contract. This means that both parties should be careful about each clause of the contract when they draw up it. The ICC prepared model form which incorporates the prevailing practice in international trade, and which aims at protecting and balancing the legitimate interests of both parties. This author examined the several important clauses in this model contract. The purpose of this examination is to help the contracting parties for better understanding and applying them in their actual contracting practice, which based on this model contract. When the supplier and the distributor execute their contract or use ICC Model Contract, they should be careful about the following points: First, some terminologies(like, "territory", "product", "competing products" and "exclusivity") should be clearly defined in their contract. Second, regarding the supplier's functions including "supplying products" and the distributor's responsibility including "undertaking not to compete", and "attaining guaranteed minimum targets", both parties should make clear about each party's right and obligation as well as one party's remedies available when other party makes breach of its obligation. Third, both parties should examine the relationship between the "exclusivity" or "sole" and competition law which is regarded as a mandatory rule in the territory. Forth, when both parties lay down "termination clause" in the contract, they should make clear about the indemnity in case of termination. Fifth, as there is not uniform law for the distributorship contract, it is inevitable to choose any local law as an applicable law in case of litigation. So both parties should keep in mind to insert arbitration clause to avoid the application of the local law. Besides, both parties should consider their individual and specific circumstances and try to reflect them in their contract by Annex I to XI attached to the end of model contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.21
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• pp.129-151
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• 2003

Nowadays even if environment of international commercial transaction is changing quickly municipal law could not meet with such change accordingly. So far, however, efforts towards unification have prevailingly taken the form of binding instruments, such as non-national or supranational legislation, international conventions or international model laws. Among them, the UNIDROIT Principles with parties' autonomous and yet non-binding character do not only meet the substantive requirements of a true law merchant. In addition they also counter some of the main points of criticism against the modern lex mercatoria. As such the Principles constitute a cornerstone in the lex mercatoria debate and may become the heart of the new lex mercatoria. The purpose of this article is to ask whether there could be applied the Principles in international commerce. For the purpose it is to investigate when the Principles are applied in international commerce and how effectively the Principles are applied for the decision in international commercial disputes. Even though the Principles are used for reference by parties involved for the voluntary regulation of their contract, it is sufficiently expected that the Principles are to be a stepstone of uniform contract law in international commerce. Until now cases of appling the Principles are not satisfied with its expectation as a source of non-legislative means of unification or harmonization of law. Given the party's autonomy in the contract, this is among other things because business parties are strongly tend to observe their national laws in their international commerce. And also, even though there are a number of neutral and uniform regulations for international commercial contracts, parties do not often recognize their usefulness with being up to expectation. In order to explore the applicability of the Principles a number of cases of ICC International Court of Arbitration and others are quoted.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.22
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• pp.49-70
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• 2004

UCP 500 has introduced new words "International Standard Banking Practice" as the basis of the examination of documents under documentary credits. However, the words have caused confusion among parties concerned with letter of credits. So, at its May 2000 meeting, ICC Banking Commission established a task force to document international standard banking practice for the examination of documents presented under documentary credits(ISBP). The publication is the product of two and a half years of work by a task force of the ICC Banking Commission. It was approved by the full Commission at its meeting in Rome in October 2002. The ISBP is a practical complement to UCP 500. It explains how the rules are to be applied on a day-to-day basis. As such, it fills a needed gap between the general principles announced in the rules and the daily work of the documentary credit practitioner. But, ISBP have two problems. First, ISBP impose more responsibilities than before the ISBP existed on banks. Second, ISBP have some problematic articles like the problem of maturity, letter of credit language, term. Consequently, all parties concerned with documentary credits need to armour themselves with knowledge for ISBP. Also, it should be noted that any term in a documentary credit which modifies or affects the applicability of a provision of the UCP may also have an impact on international standard banking practice. Therefore, in considering the practices described in this publication, parties must take into account any term in a documentary credit that expressly excludes or modifies a provision in an article of the UCP.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.155-181
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• 2012

This study considered as precautions in light of practical affairs related to a claim for damages focusing on CISG (1980) and PICC (2004). Given summarizing contents of this study, those are as follows. First, when exercising a claim for damages, proving the damages may be difficult and hard. Thus, there is necessity for stating the liquidated damages clause in contract given conclusion of contract. Second, as for the application of interest rate given a claim for interest, CISG is not covered interest rate. PICC is covered interest rate. However, there is possibility that PICC will not be applied as general principles. Thus, to remove this insecurity and uncertainty, there is necessity for stating this in contract by deciding on the detailed standard stipulation after fully discussing about interest payment with the counterpart given sale contract. Third, when a seller delivered non-conformity of the goods for contract, a buyer is desirable to exercise by discreetly judging the exercise method or limitation element on a problem of selecting and exercising remedy favorable to oneself out of a claim for damages and a right to reduce the price. Finally, There was suggestion that the contract parties are desirable to utilize by modifying and supplementing properly this in line with own business-based necessity and situation based on the ICC Model International Sale Contract, and to state CISG and PICC the governing law clause, in preparing contract. This study is expected to possibly become guideline in which the damaged party exercises a claim for damages or aims to cope with the counterpart's exercising a claim for damages.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.63-93
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• 2012

The purpose of this paper is to examine the consideration factors, from both parties' perspective, to select the most appropriate arbitral institution when they inset an arbitration clause in their contract. Accordingly, the author analyzed the advantages of institutional arbitration compared to non-institutional arbitration. The typical advantages of institutional arbitration would include: $\bullet$ Benefits of using an established set of rules $\bullet$ Services provided by the institution $\bullet$ Low risks of obstruction $\bullet$ Enhancement of the possibilities of enforcement $\bullet$ Forecast of the estimated cost $\bullet$ Specially useful for existing disputes Next, this author examined the consideration factors when selecting the institution in respect of the following factors: $\bullet$ Institution's arbitration rules $\bullet$ Institution's rule regarding the appointment of arbitrators $\bullet$ Ability of administrators of each institution $\bullet$ Reputation of the arbitral institution and the likability of enforceability of its award $\bullet$ Cost $\bullet$ Choice of the arbitral institution in relation to the choice of place of arbitration Finally, this author reviewed Model Arbitration Clause of major international or local Institutions, including ICC, AAA, LCIA, KCAB, CIETAC, ICSID and WIPO. Further examination was given to the selection of the numbers of the arbitral tribunal, the seat of arbitration and the language of arbitration, according to the designated articles in each institution's arbitration rules.