• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.60
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• pp.27-46
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• 2013

The Incoterms and United Nations Convention on Contract for the international Sales of Goods(CISG) allocate a risk in their articles. These rules make a decision that the parties who make a transaction are bound to bear the risk or damages of goods. Though a goods have a damages or loss during a transportation, buyer is liable for the payment of purchase price. In this case, this paper defines the meaning whether who can bear the risk under Incoterms and CISG. In the majority cases which deal between parties, after shipment or at the end of carriage, the loss or damages are found in buyer's hand. If a damages or loss is made during transit, customarily these risk are covered by insurance. Otherwise, these rules provide a tools for solving this problems. Then, between parties should be accomplished their target equitably.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.3-22
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• 2003

The CISG has been effective since January 1,1988. Even if both parties of international sales contract are located in ratifying countries, the CISG does not apply to certain excluded transactions. The CISG does not apply if the parties have opted out of the CISG. When the parties opt out, they usually agree on the law that is to replace the CISG. In the context of international sales, the frequent and difficult choice of law problems will arise when the CISG applies to a transaction but does not resolve all the legal issues before the tribunal. So this article deals with the question. What should we select the applicable law in such situations? (1) For products liability issues excluded from the CISG by article 4 and 5, the court should apply the substantive law of the market state and the statute of limitations law of the forum, (2) For validity issues excluded from the CISG by article 4(a). the court should apply the UNIDROIT Principles when its rules resolve the issue.

• International Commerce and Information Review
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• v.19 no.1
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• pp.191-210
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• 2017

The old sources of competitive edge and value added were land, labor, and capital. In today's knowledge-based economy in the 21st century, technology is attracting attention as a new engine of growth. That paradigm shift of world economy has resulted in the global spread of technology transfer and the gradual increase of trade of intangible goods including patents and know-how as well as tangible goods in international trade. An international license agreement is a representative form of technology transfer. In license agreements, the providers of technology keep their ownership of technology, allow the implementation of technology to the users of technology only for a certain period of time, and receive loyalty as a reward. Economic profit through such technology trade can be realized with the smooth implementation and termination of agreement. International license agreements are different from sales contracts, which represent international business transaction based on mutual obligation, in many aspects in that they target intangible goods of technology and aim for rent for a certain period of time. This study thus set out to examine issues that could be controversial in the main and individual obligation of the parties in international license agreements and provide implications helpful for the prevention of disputes in advance.

• 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.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.91-113
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• 2017

UN Convention on International Sale of Goods (CISG) and International Commercial Arbitration aim at the promotion and facilitation of international trade. Both of them share similar general principles; i.e., party autonomy and pacta sunt servanda. Also they are often applied concurrently in the case of the international commercial trade. The purpose of this article is to investigate whether the CISG could apply the formation of the arbitration clause that is included in the main contract governed by CISG. Sellers and buyers have freedom of designating choice of law that is applied to their contracts. An international arbitration agreement is presumed to be separable from the contract in which it is found. However, arbitration clauses commonly form part of a general contract. Thus, the CISG is intended to be applied to dispute resolution clauses, including arbitration clause even if it is not completely suitable. Notably, there is a fundamental distinction between the CISG and arbitration. The CISG abolished the formalities of contract. New York convention requires Contracting States' Courts to enforce written international agreements to arbitrate.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.25-52
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• 2009

An acceptance is effected by a statement or other conduct of the offeree indicating assent. Silence or inactivity does not in itself amount to acceptance. An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. It uses in stating rules on whether an acceptance is too late to form a contract and an offeree may withdraw an acceptance after transmission. The offeree may indicate assent by performing an act such as one relating to the dispatch of the goods or payment of the price without notice to the offeror. The acceptance by action also is to be performed within the time fixed between the parties or within a resonable time. However, an oral offer must be accepted immediately by an offeree. After an acceptance by action, the offeree avoid revocation of an offer by giving the offeror prompt notice to that effect. Even if a reply an offer contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter offer, the reply to an offer contains additional and different terms which do not materially alter the terms of the offer constitutes an acceptance unless the offeror objects to the discrepancy or to that effect. Additional or different terms relating to the price, payment, quality & quantity of the goods, time & place of delivery, a party's liability or the settlement of disputes are considered to materially alter the terms of the offer.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.23-42
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• 2018

This study compares the SGA and CISG to find out the difference of the criteria for calculating damages. and it intends to give some important points in trade practice. The damages is intended to compensate the victim for the breach of contract but there are differences between SGA and CISG as follow. First, the SGA and CISG have the same purpose of claiming damages. Both laws and regulations are subject to a full indemnification to compensate for the breach of the contract by the amount equivalent to the loss suffered by the victim. Second, in the general principle related to the calculation of damages, both law enforcement officials are required to be able to predict damages caused by breach of contract. In the case of SGA, however, a foreseeability test or remoteness of damages is required for the relationship between the contract violation and the loss. In other words, it can be said that the causal relation between the contract violation and the damage is strictly applied rather than the CISG. Finally, both laws and regulations of SGA and CISG have a big difference in criteria for calculating damages. In the CISG, after the contract is canceled, it is classified according to the existence of the alternative transaction and the damage amount is calculated based on the contract price. On the other hand, the SGA estimates the loss based on the market price at the delivery of the goods, reflecting the change in the market price instead of the contract price of the goods.

• Korea Trade Review
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• v.42 no.1
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• pp.27-45
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• 2017

A new phenomenon in recent trade is the rising interest in the trade of product production and manufacturing methods themselves, unlike in the past, when the interest was focused on the trade of tangible goods. That is, technology is considered as the object of trade instead of a simple element of production as "technology itself is commercialized". The broad meaning of technology encompasses all the property of knowledge with economic value. Its narrow meaning refers to technology used to produce and manufacture goods. Technologies have features such as no forms, heterogeneity, accumulation of value and extinction of right. The trade of technology commands different styles and content from that of tangible goods due to their unique characteristics; and accordingly, has various risk factors. In other words, technology can be traded in various ways according to commercial objectives including licensing, technical partnership, and joint investment in addition to general trading. The specific forms of technology transfer strategies depend on the purposes and situations between corporations. In case of technical trade with any form, the parties should be cautious about the following practical aspects: First, the contract should clearly define the scope and transfer method of technology. It is a very important matter how the provider of technology will provide the user of technology with abstract technology with no substantiality. Second, a monopoly on technology recognized as intellectual property rights is granted to their inventors for some periods of time, but anyone can have access to that technology after the term of existence. Thus, it is important to check the terms of existence of a patent as well as the terms of contract. Third, the user of technology should fulfill his confidentiality obligation to prevent the technology of the provider from being leaked to a third party unjustly. Fourth, the provider of technology should make a contribution to the successful implementation of the technology by the user as well as provide the licensed technology. Finally, a model contract is recommended to minimizing the legal hiatus of complex technology transfer trade when concluding a contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.187-210
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• 2011

International transactions have the threat of non-payment by the buyer or non-performance by the seller. Parties tend to search for additional means of securing performance and payment beyond the mere agreement in the contract. Such security may be achieved by means of a letter of credit. When contracting parties have agreed to pay by means of a letter of credit, the buyer's bank takes upon itself the obligation to pay the purchase price when the seller tenders the documents that are stipulated in the letter of credit. The documents must comply strictly with the terms of the credit.. The documents play a crucial role in letter of credit transaction. The principles of abstraction, separability and strict compliance governing the letter of credit transaction are considered. The concept of fundamental breach of Article 25 CISG was discussed. This article examines whether a failure to deliver documents conforming to the terms of the letter of credit can constitute a fundamental breach of the sales contract as defined by Article 25 of the CISG by the seller and thereby enable the buyer to avoid the contract. For letter of credit transactions it should be accepted that the delivery of non-performing documents constitutes a fundamental breach, if the result of this breach is that the bank refuses to pay the price for the goods. On the other hand, in the interpretation of Article 25 CISG, it should be noted that if the parties have agreed to payment by means of a letter of credit, they have simultaneously agreed to apply the strict compliance principle to the delivery of documents in the sales contract. Finally the parties should ensure that inconsistency between the requirements under the documentary credit and the requirements under the contract of sale is avoided, since the buyer may be in breach of his payment obligation if the seller cannot get paid under the documentary credit when his documents conform with the contract of sale.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.93-123
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• 2005

As the international commercial transaction has drastically grown up with the mainland China, commercial disputes that are required to settle through ADR have tremendously increased during the last decade. Since China has not been fully exposed to the Free World for a long period of time, there would have been a great amount of misunderstanding about their competency and integrity to deal with internationally oriented commercial transactions with a view to internationally acceptable manner. This arbitration case was related to the contract in dispute of C&A Inc. as the importer v. China XX Importation Co. as the exporter for the sale of Silicon Metal. But after the contract were formed, exporter(respondent) declined to deliver the goods under the contracts because the market price of Silicon Metal increased according to the argument of the importer(claimant). Importer had to purchase alternative goods from other companies to substitute for the goods subject to the contracts in dispute. Importer purchased silicon metal of the same quality as under the contracts from two other Chinese companies as the necessary measure to mitigate the loss, paying prices higher than the contract price. Since exporter had breached the contracts, importer's loss should be compensated by the exporter as the Arbitration Tribunal decided for supporting importer's claim of loss for the substitute goods. This study is aiming at analyzing the rationale of the arbitral awards made by the Shanghai Commission in terms of (l)Place of Arbitration, (2)Applicable Law, (3)Validity of the Contracts, (4)Doctrine of Frustration, (5)Responsibility for the Mitigation of Damage by the Importer.