• International Commerce and Information Review
• /
• v.13 no.3
• /
• pp.459-485
• /
• 2011

This paper examines the seller's obligation to deliver documents conforming to the terms of the sales contract as set forth in articles 30 and 34 of the CISG. Article 30 obliges the seller to band over documents relating to the goods. This obligation to band over documents is further elaborated in article 34. According to article 34, the documents must be tendered at the time and place, and in the form, required by the contract. If the seller has delivered non-conforming documents before the agreed time, he has the right to remedy the defects if this would not cause the buyer unreasonable inconvenience or expense. However, the buyer can claim any damages suffered despite the seller's remedy. Specific emphasis is placed on the interplay between the CISG and Incoterms. Incoterms contain detailed rules governing the obligations of the seller to provide for documents. Incoterms constitute international trade usage under articles 9(1) and 9(2) CISG and supplement construction of CISG with UCP under L/C transaction. In the event of failure by seller to deliver the necessary documents, the buyer has certain remedies available, such as the right to claim damages, the right to demand specific performance, and the right to repair. Furthermore, the failure to deliver the required documents under contract constitute a fundamental breach of the underlying sales contract as defined by article 25 of the CISG by the seller, and thereby enable the buyer to avoid the contract entirely article 49. However, it is stressed that since one of the main principles of the CISG is the preservation of the contract, the avoidance of the contract should remain a remedy of last resort.

• International conference on construction engineering and project management
• /
• 2005.10a
• /
• pp.709-713
• /
• 2005

The conflict problems encountered in the construction projects led to prolonged delays in implementation, interruptions and sometimes suspension. This paper has described ten fundamental management principles to avoid conflicts in construction field and increase the productivity. They are: i) hire good (not cheap) construction professionals ii) set reasonable time and cost goals iii) recognize contractors and designers are in business to make profit iv) draft a clear contract document v) pick a suitable project delivery system vi) implement a front-end approach vii) accept construction project as a dynamic process viii) need of education and training of professionals ix) accountability and teamwork in construction site, and x) avoid negligence.

• Journal of Arbitration Studies
• /
• v.25 no.4
• /
• pp.77-95
• /
• 2015

CISG provides a uniform framework for contracts of sale of goods between parties whose places of business are in different States. In 2004 South Korea became the 63th State around world to adopt CISG. Starting next year CISG goes into effect as the law that governs the contracts for international sale of goods, in respect of which CISG displaces the existing domestic civil and commercial codes of Korea. By its provision Article 1(a), CISG applies directly between Contracting States without reference to private international law. As South Korea's biggest trade partners including China, the U.S. and Japan are also parties to CISG, the number of such direct applications continuously increases. Now it is estimated, though roughly, that CISG governs about two-thirds of Korea's import and export trade of goods. The private survey of the author shows that up to now in South Korea there are 39 court cases decided by the first instance courts, 29 cases by the appellate court and six cases by the Supreme Court of South Korea. In nearly all these cases, CISG applied directly. Furthermore, currently CISG is, in several respects, influencing upon the revision of Korean civil code which is designed to modernize it: The revised draft published in 2013 adopts the rules on the revocation of offers provided in articles 15 and 16, the rule on the termination of offers provided in article 17 and the rule on the time that an acceptance takes its effect provided in article 18 of CISG. More importantly, in accordance with the rules taken by CISG, the revision draft no longer requires the existence of fault or negligence on behalf of the breaching party in order for the aggrieved party to void the contract, and the revised draft denies the right of avoidance for trivial, not fundamental, breaches of contract.

• International Commerce and Information Review
• /
• v.14 no.3
• /
• pp.49-73
• /
• 2012

India is a gigantic market with a population of 1.2 billion and an economy that is growing at the second-fastest pace in the world. The volume of trade between India and Korea has been sharply increased with the increase of dispute since 2000. Although avoidance of disputes is always a priority, it is also important to prepare methods of dispute resolution which are efficient and economical. So, understanding of Indian dispute resolution system is a necessary requirement for successful business operation with Indian companies. This article analyzed and compared with the various ways of Indian ADR such as negotiation, mediation, conciliation, Lok Adalat and arbitration in order to help the Korean traders who enter into business with the Indian companies to settle their disputes efficiently. In conclusion, this article suggests the following ways to overcome problems of dispute with Indian companies: First, the Korean companies should recognize the characteristics of Indian ADR Ways respectively. Second, the Korean companies should utilize the conciliation or the mediation in small claim but arbitration in large claim. Third, Write a contract and insert the KCAB's standard arbitration clause in their contract.

• Journal of Korea Trade
• /
• v.26 no.1
• /
• pp.81-98
• /
• 2022

Purpose - This study aims to compare the requirements under the United Nations Convention on Contract for the International Sales of Goods (CISG) and the Korean Civil Act (KCA) regarding the buyer's right to require the delivery of substitute goods. The buyer's right to demand substitute delivery not only protect them from the seller's breach of contract but also preserves the contractual bond between the parties by providing an opportunity for sellers to protect their goodwill and circumvent the extreme remedy of avoidance. However, as substitute delivery entails additional efforts and costs for return and re-shipment, this right should not be allowed in every case of defect. Additionally, unlike the CISG, the KCA contains no specific provision related to the requirements for claiming substitute delivery. Therefore, it would be meaningful to examine and compare what requirements should be fulfilled before the buyer exercises the right in relation to non-conforming goods under the CISG and the KCA. Design/methodology - We conducted a comparative study of the requirements under the CISG and the KCA regarding the buyer's right to require delivery of substitute goods given a seller's delivery of non-conforming goods. Additionally, we referred to the opinions from the CISG Advisory Council, the draft of the KCA amendment, and related precedents, mainly focusing on the existence and severity of defects, reasonableness, and timely notice and requests as the major requirements for substitute delivery. Findings - The results of this study can be summarized as follows: First, the CISG provides more detailed requirements about the right to require delivery of substitute goods; by contrast, the KCA does not stipulate any such requirement. Thus, specific requirements for substitute delivery should be included when amending the KCA. Second, the CISG attempts to minimize overlapping and conflict with other remedies by specifying detailed requirements for the delivery of substitutes. Third, both the CISG and KCA require reasonableness for substitute delivery. Originality/value - Although there are no explicit legal requirements for substitute delivery under the KCA, there has been relatively little discussion of this issue to date. Therefore, the findings of our study can guide future revisions of the KCA to fill this loophole. Moreover, the recently released CISG Advisory Council opinion that clarifies the continuing confusion and debate, can help distinguish which remedy is suitable for a particular case. It may provide practical advice for businesspeople in international trade as well as legal implications for the future development of the KCA.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.72
• /
• pp.57-80
• /
• 2016

Since 2006, the Law Commission and Scottish Law Commission have been engaged in a major review of insurance contract law, finally leading to the legislation of Insurance Act 2015. According to the enforcement of the Insurance Act 2015 on 12 August 2016, ss 18~20 of the Marine Insurance Act 1906(MIA 1906) were repealed and substituted by the new concept of fair presentation. This article intends to analyze the legal implications through the comparative research between the duty of fair presentation in Insurance Act 2015 and ss 18~20 of MIA 1906. The major changes in Insurance Act 2015 are designed to (1) encourage active engagement by the insurer rather than passive underwriting, asking questions of the insured if the desired information is not provided at the stage of proposal; (2) encourage policyholders to structure and signpost their presentation in an clear and accessible way, and prevent data dumps; (3) give guidance as to how the insured should prepare a fair presentation, by undertaking a reasonable search of available information and giving examples of what circumstances might be material; (4) clarify whose knowledge in the insured's organization is attributed to the insured for the purposes of disclosure; (5) clarify the exceptions to the duty of disclosure, including circumstances "which are known or presumed to be known to the insurer"; and (6) replace the remedy of avoidance in all circumstances with more proportionate remedies. This is a default regime, which may be altered by agreement between the parties.

• Economic and Environmental Geology
• /
• v.41 no.5
• /
• pp.609-615
• /
• 2008

Peru is located on Andean Range and faced Pacific Ocean and one of the important oil and gas production countries in the South America. Peru's oil business have been invested by foreign oil companies due to the good investment environment, even though the Peru could not be self-sufficiency in oil. Increase in oil price of the world has contributed to the oil and gas developments and productions in the last few years in many oil and gas blocks, such as in the 1-AB blocks and Camisea gas field within the Amazon jungles. Korean oil companies also have obtained several oil and gas blocks in the Peru in last few year, corresponding with the resources diplomacy of Korean government. Investment is strongly expected to be increased in the Peru's oil business due to positive investment environment, such as low royalty rate, tax avoidance, and the favourable terms of the contract to foreign companies etc.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.67
• /
• pp.119-142
• /
• 2015

Many insurers have traditionally incorporated "fraud clauses" into insurance policies, setting out the consequences of making a fraudulent claim. Even in the absence of an express terms, English courts provide insurers with a remedy for a fraudulent claim. However, the law in this area is complex, convoluted and confused. English Law Commission think that the law in this area needs to be reformed for three reasons; (1) the disjunctive between the common law rule and section 17 generates unnecessary disputes and litigation, (2) increasingly, UK commercial law must be justified to an international insurance society, and (3) the rules on fraudulent claims are functioned as a deterrent if they are clear and well-understood. In order for these purposes, English Law Commission recommends a statutory regime to the effect that, when an insured commits fraud in relation to a claim, the insurer should (1) have no liability to pay the fraudulent claim and be able to recover any sums already paid in respect to the claim, and (2) have the option to treat the contract as having been terminated with from the time of the fraudulent act and, if chosen the option, be entitled to refuse all claims arising after the fraud, but (3) remain liable for legitimate losses before the fraudulent act. LC is not recommending a complete restatement of the law on insurance fraud generally. For example, LC does not seek to define fraud, instead, recommends the introduction of targeted provisions to confirm the remedies available to an insurer who discovers a fraud by a policyholder.

• The Journal of the Korea Contents Association
• /
• v.18 no.7
• /
• pp.388-400
• /
• 2018

Small houses are continuously supplied after the alleviated housing act enacted in 2009. This study aimed to conduct a survey among an expert group associated with small house construction, propose problems by discovering difficulties and vulnerable points small and medium-sized construction companies experience while launching construction works as well as factors that impede the safety and housing environment of small houses. Furthermore, it ultimately intends to propose improvements. First, low-priced order is a major cause of unreasonable contract. Most companies were found to have low-priced orders in order to manage order performance. Low bidding and low-priced order are implemented to maintain construction businesses, ultimately threatening the safety environment of buildings. In addition, it is assumed that moderate bid periods and construction periods should be guaranteed. Second, work standardization for small and medium-sized companies is needed due to numerous cases that failed to meet order process. Additionally, regular instruction is required as many employees are not fully aware of relevant contents. Third, the most urgent policy direction turned out avoidance of low-priced bidding and removing insolvent enterprises from the market. Small and medium-sized construction companies that primarily build small houses undergo poor work condition. Therefore, the safety environment of small houses should be enhanced through work standardization and avoiding low-priced order.

• Cross-Cultural Studies
• /
• v.50
• /
• pp.103-130
• /
• 2018

This research aims to explore the associated linguistic features and functions of Chinese as used for business trading purposes, and which is based on a discourse analysis through a case in which a Korean buyer and a Chinese supplier have exchanged Internet based e-mails. The research questions include first, the linguistic functions and characteristics of Chinese shown as identified in this trade case through e-mails, second, the use of Chinese trade specific terms, and third, the apparent and dynamic negotiation strategies that are identified as followed by the cultural value systems which are used for resolving interest conflicts and issues between the buyer and supplier in the course of negotiating business contracts between two parties. The participants of this research pertain to a Korean buyer, James and a Chinese supplier, Sonya. The associated data consists of 74 e-mails exchanged between the two parties, initiated in an effort to begin and complete a trade item, in this case namely the product of napkin holders. The research for the study is based on the discourse analysis and empirically analyses models of Chinese linguistic functions and features. The findings are the following. First, as identified, the specific Chinese functions used and sequenced in this trade case are of a procedure, request, informing, negotiation and persuasion. Second, the essential trade terms used in this business interaction involve the relevant issues of 1) ordering and price negotiating, 2) marking the origin of the products, 3) the arrangement of the product examination and customs declaration for the anticipated import items, 4) preparation of the necessary legal documents, and 5) the package and transport of the product in the final instance. Third, the impact of the similarities and differences in the cultural value systems between Korea and China on the negotiations and conflict resolution during a negotiated contract between two parties are speculated in terms of the use of culturally based techniques such as face-saving and the utilization of uncertainty-avoiding strategies as meant to prevent misunderstandings from developing between the parties. The concluding part of the study discusses the implications for a practical Chinese language education utilizing the linguistic functions and features of the Chinese culture and language strategies as useful in business associations for trading purposes, and the importance of intercultural communication styles based on similar of different identified cultural values as noted between two parties.