• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.17
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• pp.71-91
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• 2002

The purpose of this paper is to examine the viewpoints of the different legal systems for the validity of LD Clause and the possibility of gap-filling function of UNIDROIT Principles in International Sales Contract. The results of comparative study between common law system and civil law system, and between CISG and UNCDROIT Principles is as follows: First, common law system distinguishes LD Clause and Penalty Clause, but civil law system including Korean law does not strictly distinguish the difference between them, provided that the liquidated damages are not grossly excessive. Second, CISG does not concerned with the validity of LD Clause but entrust this matter to the law applicable by virtue of the rules of private international law; conversely the Principles follow similar position of civil law system. The possibility of gap-filling of the Principles is more positive in the case of arbitration than in the case of litigation. On the basis of above study, I also checked the LD Clauses of ICC Model International Sales and the Model Contracts of Korean Commercial Arbitration Board. The LD Clauses of there two Model Contract seem very appropriate and reasonable for the reference in practical application. The appropriate, not excessive, LD Clause will contribute not only to eliminate the burden of proof for the actual damages, but also to enforce both parties to perform their obligations in their contracts. Therefore, When we make contract, we should keep in our mind to insert the reasonable and appropriate LD Clause in the sales contract. If not, so to speak, litigated damages are grossly excessive, the Clause may be invalid in some legal system.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.63-82
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• 2003

The time of examination of buyer in international sales contract is very significant, because the time is related with the period of claim in buyer's aspect. From the legal point of view, the time of delivery, the time of examination and the time of quality decision should be in accord. But the buyer, whose main place of business is located in importing country, wants to examine the goods in his own country. Therefore in CIF or FOB Contract, the place of delivery and the place of examination are divided. Thus the CISG, the Common Law System and the Civil Law System including Korean Law stipulate the buyer's examination at the destination if the sales contract involves carriage of the goods. This author, from the buyer's perspective, would like to make the following suggestions in regard to the time of examination when the sales contract is made. First, the time of examination and the time of quality decision should be in accord, even though the time of delivery is different. Second, the buyer should clearly indicate the time, the place, the inspector, the particulars and the burden of proof in regard to examination when contracting. Third, the buyer should also clearly indicate the period of notice for the lack of conformity in Claim Clause of sales contract, which should be counted from the time of examination. Fourth, the buyer should remember that he many lose the right to rely on the lack of conformity of the goods if he does not give the seller notice thereof within the stipulated time or reasonable time. Finally, if the buyer wants, to examine the goods at the place of shipment, it is desirable for the buyer to designate internationally recognized inspection organization like SGS.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.25-46
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• 2015

The purpose of this paper is to provide a legal implication about conformity of goods in the international commercial transactions. There are so many legal relationship after the formation of contract. The most of important thing among the obligations of seller is to provide conformal goods which are of quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. If seller violate above duties, seller take the warranty liability. However, CISG describe the conformity of the goods instead of the warranty as follows. First, CISG Art.35(1) states standards for determining whether goods delivered by the seller conform to the contract and Art.35(2) describes standards relating to the goods' quality, function and packaging that, while not mandatory, are presumed to be a part of sales contracts. Article 35(2) is comprised of four subparts. Two of the subparts (article 35(2) (a) and article 35(2)(d)) apply to all contracts unless the parties have agreed otherwise. Second, CISG Art.36 and 38 deals with the time at which a lack of conformity in the goods must have arisen in order for the seller to be liable for it. If seller lack of conformity becomes apparent only after that time, seller is liable for a lack of conformity existing when risk passed to the buyer. Third, CISG Art.49 describe that a buyer who claims that delivered goods do not conform to the contract has an obligation to give the seller notice of the lack of conformity. The most of important things about CISG articles and precedents is that buyer is aware of the lack of conformity and notice it to seller. Failure to satisfy the notice requirements of article 39 eliminates a buyer's defence, based on a lack of conformity in delivered goods, to a seller's claim for payment of the price. Consequently, parties of contract had better agree to the notifying times about lack of conformity. Also, If seller fined the non-conformity, seller has to notify this circumstance to the buyer within short period or agreed time.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.47-73
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• 2015

This study primarily concerns the fundamental breach of contract by a seller and a buyer's two remedies that are entitled to under the CISG. Regarding the breach of contract, the CISG simply provides a list of each party's obligations and regulates that both parties should fulfill the obligations under the contract as well as the Convention. When the CISG specifies the remedies for both parties, it requires to divide the fundamental breach of contract from breach of contract. By doing so, it provides different remedies to both parties depending on whether it is the fundamental breach of contract or not. From the point of buyer's view, the buyer has two remedies when there is the fundamental breach of contract by the seller; they are the right to declare the avoidance of contract and to require the delivery of substitute goods. The fundamental breach of contract is a pre-requisite condition to be fulfilled in order to exercise these two remedies. Although the CISG provides the definition of fundamental breach of contract, its meaning is not clear enough, so it is interpreted and applied case by case. Therefore, this paper will analyze recent cases focusing on the most debated issues regarding the interpretation of fundamental breach of contract; first, who determines the substantial deprivation and when is the time for determination, second, when is the time for unpredictability of substantial deprivation, and last, who has a burden of proof.

• Journal of Korea Port Economic Association
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• v.32 no.4
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• pp.41-56
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• 2016

China is pushing a policy called China's Western Development in order to balance the continent's development level. They are connecting the rich natural resources of the mid-western areas and the capital of the eastern coastal areas of China. Since Korea depends on China the most for trade, it is necessary for Korea to always consider the trade scale and pattern changes of China. Response to changes in the transport and logistics system between the two countries is also demanded. This study aims to analyze the import and export trends between Korean and Chinese provinces of each item from the trade scale point of view. China's global trade routes reorganization and China's western development are considered and the corresponding direction is presented accordingly. The study also suggests strategies to expand the import and export scale with China based on the analysis.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.37
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• pp.89-106
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• 2008

Since the implementation of International Standard Banking Practice(ISBP) in 2003, ICC Publication No. 645 has become an invaluable help to the documentary credit practitioners including banks, companies, transportation and insurance companies etc. However, with the approval of UCP 600 in October 2006, it has become necessary to provide an updated version of the ISBP. It should be emphasized that this ISBP is an updated version as opposed to a revision of ICC Publication No. 645. The new ISBP has been implemented concurrently with UCP 600 since July 1st, 2007. The first necessity was to replace UCP 500 article numbers with those of UCP 600. Second, where it was felt proper, the contents of some paragraphs that appear in ICC Publication No. 645 and that have been covered in UCP 600 have been removed from the updated version of the ISBP. This explains the reduction in the number of paragraphs from 200 to 185. The international standard banking practices documented in the new ISBP are consistent with UCP 600. This ISBP does not amend UCP 600. It explains how the practices articulated in UCP 600 are applied by documentary practitioners. The new ISBP and the UCP 600 should be read in their entirety and not in isolation. It should be kept in mind that any terms in a documentary credit which modifies or excludes the applicability of a provision of UCP 600 may also have an impact on the international standard banking practices. Consequently, when parties concerned must take into account any terms in a documentary credit that expressly modifies or excludes a rule contained in UCP 600.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.37
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• pp.61-85
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• 2008

Bills of lading are crucial in international sales on shipment terms since they guard buyers against loss of or damage to the goods in transit by giving them the rights against carriers. A bill of lading, as document of title, gives the buyer the right to demand physical possession of the goods from the carrier and enables the buyer who is in possession of damaged or short-delivered goods to sue the carrier. In this context the buyer in sales on CIF or CFR terms or FOB terms with additional services benefits from the bill of lading which functions as a receipt of goods and a evidence of the terms of the contract of carriage. Protection of such buyer's interests can be provided in the sale contract through appropriate express or implied terms on the seller's documentary obligations: Which transport document, a bill of lading or a sea waybill, is required? Who should be named as the consignee in the transport document and, in case of bill of lading, by whom should the bill be endorsed? What should be stated in the bill of lading for the quantity of the goods? How about a bill of lading that contains so called "unknown clause"? How many bills of lading for the entire contract goods should be tendered? Can a bill of lading stating that the goods have been shipped in apparent good order and condition also state that the goods were damaged after shipment? This paper seeks to provide answers for these particular questions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.64
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• pp.65-97
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• 2014

Arbitration is the dispute methods for speedy and economic resolutions in international commercial areas. In maritime disputes cases in East Asia, Korea and Japan are the regional benefits to cover and deal with the maritime cases on arbitration. And Korea and Japan are the competitive maritime industry for heavy shipbuilding industry, cargo carrier, processing and transhipment service on ports, and ship financial services in national competitive areas. Japan is the Tokyo maritime arbitration commission(TOMAC) as an uniquely capable of dealing with arbitrations involving problems arising in the sea field. TOMAC provides amended its arbitration rules 2014 aiming at matching with the maritime disputes circumstances with three maritime arbitration rules as ordinary rules, simplified rules and the rules of small claims arbitration procedure. KCAB however, as the unique commercial arbitration board in Korea is dealing on all of the commercial disputes on only the international commercial arbitration rules in 2011. Though KCAB is dealt with maritime dispute cases on international arbitration rules in Korea, it is small and simple compared with TOMAC in Japan. Maritime disputes are highly complicated and embroiled with multi-parties contract and subcontracts arising under contracts relating to bills of lading, charter parties, sale and purchase of ships, shipbuilding, ship financing and so forth. This paper is to provides a discussion and comparison on recently arbitration rules focus on the maritime aspects on Korea and Japan. We need to consider to make an independent and special institute and maritime arbitration rules including the multiparty consolidation and med-arb provisions for handling the disputes and resolution of maritime conflict cases in Korea.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.72
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• pp.1-24
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• 2016

This study focused on getting clear understanding on the legal bases in terms of plurality of obligors and plurality of obligees through a analysis the PICC(2010) which has been standing firmly as the general principles of international commercial contract. Related to the title of this paper, PICC are dealing with not only plurality of obligors but plurality of obligees. The contents of the former are as follows; presumption of joint and several obligations and obligee's rights against joint and several obligors (arts.11.1.1, 11.1.2, 11.1.3), availability of defences and rights of set-off and effect of performance and set-off (arts.11.1.4, 11.1.5), effect of release or settlement and effect of expiration or suspension of limitation period (arts.11.1.6, 11.1.7), effect of judgment (art.11.1.8), apportionment among joint and several obligors and extent of contributory claim (arts.11.1.9, 11.1.10), rights of the obligee, defences in contributory claims, inability to recover (arts.11.1.11, 11.1.12, 11.1.13) and so on. On the other hand the contents of the latter are as follows; definitions (art.11.2.1), effects of joint and several claims (art.11.1.2), availability of defences against joint and several obligees (art.11.2.3), allocation between joint and several obligees (art.11.1.4). The main subjects are one is when several obligors are bound by the same obligation towards an obligee, the obligations are joint and several when each obligor is bound for the whole obligation, the obligations are separate when each obligor is bound only for its share and the other is when several obligees can claim performance of the same obligation from an obligor, the claims are separate when each obligee can only claim its share, the claims are joint and several when each obligee can claim the whole performance and the claims are joint when all obligees have to claim performance together.

• Journal of Information Management
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• v.33 no.3
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• pp.87-104
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• 2002

With China Market and strengthening of an international and political position of China, we need to promote exchange and cooperation with China for the supplement of economic vitality and for contriving the contribution of the flow of growth. The necessity of salient traits is needed such as sharing information, training a specialist, network between China Specialists, system establishment of China information DB and sharing China information. Accordingly, KIEP makes the most of limited special manpower and information, and developed China Specialist Forum Website : CSF which will make a stepping stone of systematic, synthetic exchange and cooperation with China. KIEP presented a development direction, comparing and analyzing promptly easy to get the information China Specialists want here, CSF made for mutual exchange of science, trade and the other issue, Taiwan website "a commercial business intelligence network of China and Taiwan", and Singapore "IE Singapore".