• International Commerce and Information Review
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• v.14 no.3
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• pp.453-479
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• 2012

The increase in international trade is clearly reflected by litigation and arbitration. Despite the importance of international commercial transaction, until very recently little was known about how the law interacts with actual practice. The CISG obviously plays an important role, but we are concerned with using choice of law to resolve issue that the CISG leaves unresolved. The case law UPICC is now accessible by means of UNILEX, the database on international case law that focus on CISG cases. The courts and arbitration tribunals throughout the world are developing a growing body of international case law on issues not resolved by the CISG, though arising from transactions to which the CISG applies. The application of the CISG is obligatory due to its nature as hard law an international convention. However, UPICC are only restatements and more flexibility, comprehensive instrument than CISG. This article offers to promote the UPICC application from their present status as a mere soft law instrument through analysing UNILEX cases.

• Korea Trade Review
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• v.43 no.3
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• pp.199-218
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• 2018

The force majeure in the international sale of goods has been widely used regarding liability and settlement of disputes in the event of breach of contract due to circumstances beyond the control of the parties. The purpose of this study is to examine the judgment criteria and cases concerning on force majeure in the application of FTA preferential tariffs. In order to achieve this purpose, this paper uses a literature review and case analysis on exceptional circumstances under the Korea·ASEAN FTA and the Korea·EU FTA. This study, this paper provides several implications for companies seeking preferential tariffs regarding the Korea·ASEAN FTA and the Korea·EU FTA. Korean companies are subject to the following: confirm the denial article of FTA preferential tariffs stipulated in the Korea·ASEAN FTA and the Korea·EU FTA, consider the judgment criteria on exceptional circumstances of customs authorities, confirm the extension criteria on the validity period of certificate of origin, confirm the reply criteria of verification result of the customs authorities of the exporting country, and confirm the violation of the principle of good faith for unrequested action on reply of verification result of customs authorities.

• Korea and Global Affairs
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• v.1 no.1
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• pp.97-114
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• 2017

This article aims for searching the clue of North Korea nuke-problem by understanding it contextually. We must see this from the beginning as many trials in settling the problem have failed. North Korea nuke-problem is related to the change of international implication as well as the domestic process of its development. At first, it started from the regime survival, which evolved with the effect of learning. During the Cold War, its development had combined the principle of 'self-defense' because of Sino-Russia conflict. Particularly, its meaning varied dramatically due to the collapse of Cold War system plus the advent of post-Cold War system. North Korea nuclear program has became a global problem based on the deterioration of North Korea's security milieu and Bush administration's policy. Therefore, the area of common solution for NK nuke-problem must be found in the context of regime survival and the change of its meaning by continual convergence effort.

• The Korean Society of Law and Medicine
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• v.20 no.1
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• pp.83-107
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• 2019

In order to resolve a dispute over a medical accident, the court is in the process of appraising the medical records for medical professionals to report their medical expertise or judgments using that knowledge. The consequences of expert opinion about a medical accident are only one of the methods of evidence as a reference. Therefore, in principle, the court should not be bound to the results, but the court, which is not a medical expert, can not completely rule out medical expert opinion as to whether there is medical malpractice and causality. Therefore, it can not be denied that the proportion of expert opinion of medical records in the dispute about medical accidents is high and it has an important influence on the judgement of the court. In this paper, we examine the significance and function of expert opinion of the medical accident, examine the appraising procedure of the medical records in the court and the appraising procedure of the medical accidents of the Korean medical dispute mediation arbitrator do. In addition, I would like to examine what kind of attitude is being taken in response to expert opinion of medical records in Korea to court, to examine the implications of the case of Japan as a foreign system, and to suggest improvement points in the expert opinion procedure of medical record filing in Korea. In particular, I would like to suggest improvements on issues such as the fairness of the expert opinion of medical records and the delays in litigation due to delays in the process of expert opinion.

• The Korean Journal of Air & Space Law and Policy
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• v.28 no.2
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• pp.223-258
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• 2013

1967 Outer Space Treaty(Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; OST) is a treaty that forms the basis of international space law. OST is based on the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space announced by UNGA resolution. As of May 2013, 102 countries are states parties to OST, while another 27 have signed the treaty but have not completed ratification. OST explicitly claimed that the Moon and Other Celestial Bodies are the province of all mankind. Art. II of OST states that "outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means", thereby establishing res extra commercium in outer space like high seas. However 1979 Moon Agreement stipulates that "the moon and its natural resources are the Common Heritage of Mankind(CHM)." Because of the number of the parties to the Moon Agreement(13 parties) it does not affect OST. OST also established its specific treaties as a complementary means such as 1968 Rescue Agreement, 1972 Liability Convention, 1975 Registration Convention. OST bars states party to the treaty from placing nuclear weapons or any other weapons of mass destruction in orbit of Earth, installing them on the Moon or any other celestial body, or to otherwise station them in outer space. It exclusively limits the use of the Moon and other celestial bodies to peaceful purposes and expressly prohibits their use for testing weapons of any kind, conducting military maneuvers, or establishing military bases, installations, and fortifications. However OST does not prohibit the placement of conventional weapons in orbit. China and Russia submitted Draft Treaty on the Prevention of the Placement of Weapon in Outer Space and of the Threat or Use of Force against Outer Space Objects(PPWT) on the Conference on Disarmament in 2008. USA disregarded PPWT on the ground that there are no arms race in outer space. OST does not have some articles in relation to current problems such as space debris, mechanisms of the settlement of dispute arising from state activities in outer space in specific way. COPUOS established "UN Space Debris Mitigation Guidelines" based on "IADC Space Debris Mitigation Guidelines" and ILA proposed "International Instrument on the Protection of the Environment from Damage Caused by Space Debris" for space debris problems and Permanent Court of Arbitration(PCA) established "Optional Rules for Arbitration of Disputes Relating to Outer Space Activities" and ILA proposed "1998 Taipei Draft Convention on the Settlement of Space Law Dispute" for the settlement of dispute problems. Although OST has shortcomings in some articles, it is very meaningful in international law in considering the establishment of basic principles governing the activities of States in the exploration and use of outer space, including the Moon and Other Celestial Bodies. OST established the principles governing the activities of states in the exploration and use of outer space as customary law and jus cogens in international law as follows; the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind; outer space shall be free for exploration and use by all States; outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. The principles of global public interest in outer space imposes international obligations erga omnes applicable to all States. This principles find significant support in legal norms dealing with following points: space activities as the "province of all mankind"; obligation to cooperate; astronauts as envoys of mankind; avoidance of harmful contamination; space activities by States, private entities and intergovernmental organisations; absolute liability for damage cauesd by certain space objects; prohibition of weapons in space and militarization of the celestial bodies; duty of openness and transparency; universal application of the international space regime.

• The Korean Journal of Air & Space Law and Policy
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• v.19 no.2
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• pp.9-53
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• 2004

This paper described the contents of theme entitled "Domestic Legislative Problems on the Civil Liability of Air Carrier in Korea" including the current example of fourteen countries' legislation ((1) Great Britain, (2) United States of America, (3) Canada, (4)European Union), (5) Germany, (6) France, (7) Italy, (8) Spain, (9) Swiss, (10) Australia, (11) Japan, (12) People's Republic of China, (13) Taiwan, (14) North Korea) relating to the aviation law or air transport law. Though the Korean and Japanese aviation act has provided only the public items such as (1) registration of aircraft, (2) persons engaged in aviation, (3) operation of aircraft, (4) aviation facilities including airport, (5) air transport business, (6) investigate of aircraft accidents etc., but they could not regulated the private items such as the legal relations of the air transport contract (1) air passenger ticket, (2) air luggage ticket, (3) airway bill, (4) liability of air carrier, (5) amount of compensation for damage caused by aircraft accidents, (6)jurisdiction, (7) arbitration, (8) limitation of action, (9) combined carriage, (10) carriage by air performed by an actual carrier other than contracting carrier, damage caused by aircraft to the third parties etc. in their aviation act until now. In order to solve speedily the legal problems on the limitation of air carrier's liability and long law suit and disputes between wrongdoers and survivors etc, it is necessary and desirable for us to enact a new "Draft for the Air Transport Act" including the abovementioned private items. I would like to propose personally and strongly the legislation of "Draft for the Air Transport Act" in Korea in emphasizing the importance of ensuring protection of the interests of consumers air passengers and shippers in carriage by air and the need for equitable compensation between air carriers and survivors caused by the aircraft accidents such as the German Air Transport Act (Luftverkerhrsgesetz).

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.2
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• pp.35-59
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• 2018

Professor Bin Cheng said that outer space was res extra commercium, while the moon and the other celestial bodies were res nullius before the 1967 Outer Space Treaty(OST). However, Article 2 of the OST made the moon and other celestial bodies have the legal status as res extra commmercium, not appropriated by any country or private enterprises or individual person, but the resources there can be freely available, as those on the high seas. The non-appropriation principle was introduced to corpus juris spatialis internationalis. Whether or not the non-appropriation principle is binding for the non-parties of the OST, many scholars see this principle as an international customary law, even developing into jus cogens. Article 11(2) of the Moon Agreement(MA) reconfirms the nonappropriation principle of Article 2 of the OST, but it has much less effect than the OST because the MA binds only the 18 parties involved. The MA applies only to the moon and celestial bodies other than the Earth in the Solar System, the OST's application scope extends to the Galaxy because the OST has no such substantive enactment. As referred to in the 2015 CSLCA of USA or Luxembourg's Law of Space Resources, allowing individuals and enterprises run by other countries to commercially explore and utilize the space resources, the question may arise whether this violates the non-appropriation principle under Article 2 of the OST and Article 11 of the MA. In the case of the CSLCA, the law explicitly specifies that sovereignty, possessory rights, and judiciary rights to a specific celestial body cannot be claimed, let alone ownership. This author believes that this law respects the legal status of outer space and the celestial bodies as res extra commmercium. As long as any countries or private enterprises or individuals respect the non-appropriation principle of outer space and the celestial bodies, they could use, exploit it. Another question might be raised in the difference between res extra commercium on the high seas and res extra commercium in outer space and the celestial bodies. Collecting resources on the high seas and exploiting space resources should be interpreted differently. On the high seas, resources can be collected without any obstacles like fishing, whereas, in the case of the deep sea-bed area, the Common Heritage of Mankind principles under the UNCLOS should be operated by the International Seabed Authority as an international regime. The nature or form of the sea resources found on the high seas are thus different from that of space resources, which are fixed on the moon and the celestial bodies without water. Thus, if individuals or private enterprises collect these resources from outer space and the celestial bodies, they might secure a certain section and continue collecting or mining works without any limitation. If an American enterprise receives an approval from the U.S. government, secures the best location and collects resources on the moon, can other countries' enterprises access to this area? How large the exploiting place can be allotted on the moon? How long should such a exploiting activity be lasted? Under the current international space law, these matters might be handled according to the principle of "first come, first served." As a consequence, the international community should provide a guideline or a proposal for the settlement of any foreseeable disputes during the space activity to solve plausible space legal questions in the near future.

• International Commerce and Information Review
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• v.15 no.1
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• pp.35-65
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• 2013

In December 2012, the Ministry of Land, Transport and Maritime Affairs and Ministry of Knowledge Economy held a commission and distributed a standardized logistics contract between the shipper and the logistics companies in order to spread and to promote contract standardization. With such background in place, this study examines the leading research on different types and attributions in present logistics contracts in order to propose guidelines for creating contract clauses that would lead to a win-win relationship among the parties involved in the logistics outsourcing relationships. This study further compares and contrasts the concreteness of local and international logistics contracts through case studies, and provides practical thought-provoking points on concretization of clauses on potential risks and additional expenses for local logistics companies when signing logistics contracts. Firstly, the composition and contents of both local and international logistics contracts are similar in the way that both deal with the basic principles between the concerned parties such as the following: contract terms, validity, scope of work, operational procedures, payment terms, and dispute resolutions. Secondly, for flexibility of potential dispute resolution, both logistics contracts define the definition of dispute and follow the classical contractual approach of dispute resolution through third-party arbitration. Thirdly, compared to local contracts, international logistics contracts provide more concretized and specific clauses on the occurrence of potential risks and hazards; on the other hand, compared to international logistics contracts, it seemed that local contracts contained more clauses in favor of the shipper. This research then suggests ideas to eliminate the classic tradition - logistics companies enduring the damages that occur as a result of the structural differences between the shipper and the logistics companies - through efforts to actively negotiate in advance the predictable problems and risks and by reflecting the mutually agreed points in the contract, and further offers guidelines on contract concretization for distribution of standardized logistics contracts in the future.

• Journal of Arbitration Studies
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• v.24 no.2
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• pp.33-52
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• 2014

Although climate change is a global scale question, some concerns have been raised that principles of investment arbitration may not adequately address the domestic implementation of climate change measures. A recent ICSID investment arbitration of Vattenfall v. Germany with regard to the investor's alleged damages from the phase-out of nuclear plants is a salient climate change case. The 2005 Kyoto Protocol was made to reduce greenhouse gas emissions and it provides a number of flexible mechanisms such as Joint Implementation (JI) and Clean Development Mechanism (CDM). Implementation of the Kyoto Protocol allows dispute settlement through investor-state arbitration. Any initiation of stricter emission standards can violate the prohibition on expropriations in investment agreements, regardless of the measures created to reduce greenhouse gas emissions. The effect-based expropriation doctrine can charge changes to existing emission standards as interference with the use of property that goes against the legitimate expectation of a foreign investor. In regulatory chill, threat of investor claims against the host state may preclude the strengthening of climate change measures. Stabilization clauses also have a freezing effect on the hosting state's regulation and a new law applicable to the investment. In the fair and equitable standard, basic expectations of investors when entering into earlier carbon-intensive operations can be affected by a regulation seeking to change into a low-carbon approach. As seen in the Methanex tribunal, a non-discriminatory and public purpose of environmental protection measures should be considered as non-expropriation in the arbitral tribunal unless its decision would intentionally impede a foreign investor's investment.

• Proceedings of the CALSEC Conference
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• 1998.10a
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• pp.45-55
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• 1998

A legal system is designed to regulate social phenomena appropriately minimizing potential disputes arising out of conflicts with social phenomena and to seek for stability of legal life. The development of information technology and network infrastructure changed way of communication significantly, which realized the new transactional concepts, such as EDI(Electronic Data Interchange), Commerce At Light Speed(CALS) and Electronic Commerce(EC). However, current legal systems of each nation, which are based upon the paper document, do not seem to accomodate such types of emerging transactions. In that context, we can observe many issues which cannot be resolved among the parties involved in such transactions even under the several sui-generis statutes regarding EDI in Korea. Based upon the recognition of the above circumstances, this paper will browse legislative efforts in advanced countries and international institutions like UNCITRAL, and WTO. Also this will cover outstanding issues in relation with the deployment of electronic commerce in Korea and suggest what should be revisited for better accommodation of the changes going on.