• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.261-301
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• 2016

Recently the abusive calls on on-demand bonds have been a critical issue among many engineering and construction companies in Korea. On-demand bond is referred to as an independent guarantee in the sense that the guarantee is independent from its underlying contract although it was issued based on such underlying contract. For this reason, the issuing bank is not required to and/or entitled to look into whether there really is a breach of underlying contract in relation to the call on demand-bonds. Due to this kind of principle of independence, the applicant has to run the risk of the on demand bond being called by the beneficiary without due grounds. Only where the call proves to be fraudulent or abusive in a very clear way, the issuing bank would not be obligated to pay the bond proceeds for the call on on-demand bonds. In order to prevent the issuing bank from paying the proceeds under the on-demand bond, the applicant usually files with its competent court an application for injunction prohibiting the beneficiary from calling against the issuing bank. However, it is in practice difficult for the applicant to prove the beneficiary's call on the bond to be fraudulent since the courts in almost all the jurisdictions of advanced countries require very strict and objective evidences such as the documents which were signed by the owner (beneficiary) or any other third party like the engineer. There is another way of preventing the beneficiary from calling on the bond, which is often utilized especially in the United Kingdom or Western European countries such as Germany. Based upon the underlying contract, the contractor which is at the same time the applicant of on-demand bond requests the court to order the owner (the beneficiary) not to call on the bond. In this case, there apparently seems to be no reason why the court should apply the strict fraud rule to determine whether to grant an injunction in that the underlying legal relationship was created based on a construction contract rather than a bond. However, in most jurisdictions except for United Kingdom and Singapore, the court also applies the strict fraud rule on the ground that the parties promised to make the on-demand bond issued under the construction contract. This kind of injunction is highly unlikely to be utilized on the international level because it is very difficult in normal situations to establish the international jurisdiction towards the beneficiary which will be usually located outside the jurisdiction of the relevant court. This kind of injunction ordering the owner not to call on the bond can be rendered by the arbitrator as well even though the arbitrator has no coercive power for the owner to follow it. Normally there would be no arbitral tribunal existing at the time of the bond being called. In this case, the emergency arbitrator which most of the international arbitration rules such as ICC, LCIA and SIAC, etc. adopt can be utilized. Finally, the contractor can block the issuing bank from paying the bond proceeds by way of a provisional attachment in case where it also has rights to claim some unpaid interim payments or damages. This is the preservative measure under civil law system, which the lawyers from common law system are not familiar with. As explained in this article, it is very difficult to block the issuing bank from paying in response to the bond call by the beneficiary even if the call has no valid ground under the underlying construction contract. Therefore, it is necessary for the applicants who are normally engineering and construction companies to be prudent to make on-demand bonds issued. They need to take into account the creditability of the project owner as well as trustworthiness of the judiciary system of the country where the owner is domiciled.

• Korea Trade Review
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• v.42 no.1
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• pp.69-97
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• 2017

This study purpose to examine the importer's risks that may arise from origin investigation by Customs authorities. We have drawn the important factors affecting the application of FTA preferential tariffs and divided the stages from the conclusion of the contract for the importer to the undergoing origin investigation. In addition, we demonstrate empirically that the risks that arise in areas where importers are difficult to control exist. As a management method of the uncontrollable risk from the importer, we have provided the methods that the seller stipulated the seller's responsibility in the trade contract, prepared for situations in which no one was responsible, and formulated a friendly and cooperative supply chain. Even if the seller's liability is clarified in the contract for sale, the risk of the investigation into the origin of the imported goods is not completely eliminated. This is because, under the current agreement and system, there is no way for the customs authority of the contracting party of the FTA to claim compensation for damages incurred by importers due to breach of agreement such as not returning the result of the origin verification. Importers are subject to customs duties, but there may actually be situations in which no one is responsible for them.

• Journal of radiological science and technology
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• v.30 no.2
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• pp.89-93
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• 2007

Contrast medium is a very useful tool for X-ray examinations. But contrast medium has some unavoidable adverse reactions. For those patients who have never received contrast medium before, it is impossible to predict whether they will suffer from certain kinds of adverse reactions. Thus, radiologists should use strategies to minimize adverse events and be prepared to promptly recognize and manage any reactions to the contrast media. If a radiologist commits medical malpractice, he will face civil responsibility. Medical malpractice means a tort or breach of contract that occurs in a medical setting. Medical malpractices happen, despite the efforts of hospital staff. Many courts have applied the traditional doctrine of respondeat superior in actions against organizations for injuries caused by their employees. It is a legal doctrine, which states that an employer is responsible for employee actions performed within the course of the employment. A hospital is an organization for health purposes. An organization may be convicted of an offense committed by an employee of the organization acting in its behalf and within the scope of his office or employment. Organizational liability involves a wide variety of legal issues, including tort liability, wrongful employment practices, personal injury, breach of fiduciary duty, and so on. Many executive directors of organizations are aware of their personal and organizational risks of exposure to legal liabilities. The employer must have the right to control the physical conduct of the employee and must consent to receive the employee's services, while expecting some benefits from the services offered. Therefore, legal liability can be imposed for improper selection, assignment, training, and supervision of employees. In conclusion, the hospital itself has organizational liability for adverse reactions to the contrast medium.

• Journal of Navigation and Port Research
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• v.37 no.6
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• pp.617-625
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• 2013

"Sale and purchase brokers" are independent contractors who act as agents for principals intending to seller or buy ships in English Maritime Law. The essential feature is that legal position of shipbroker is largely one of agency. They can be obtained by a study of the Lloyd's Register or the equivalent registers of other Classification Societies, the American Bureau of Shipping and Korean Registers. Such a broker is of valuable assistance to the prospective seller or purchaser. And the broker's liability normally arises in the context of a contract. But, expressed in general terms, those contractual obligations are, in absence of contrary agreement, to act with reasonable care and skilled to obtain the cover requested by his client not to guarantee that such will be concluded and to ensure that the scope of the policy, its essential terms and relevant exclusions are made known to the insured. Acting in this professional capacity, the broker's liability are such that the facts upon which an action for breach of contract may be based may also found an action for the trot of negligence provided that there is shown to be the necessary 'assumption of responsibility' by the broker conveyed directly or indirectly to the insured. This thesis deals with liability of S&P Brokers, the legal problems of ship broking, commission, conflicts of interest and secret commissions in English Maritime Law and the Cases.

• The Korean Society of Law and Medicine
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• v.18 no.1
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• pp.3-35
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• 2017

The Supreme Court of Korea first admitted compensation for damages caused by breach of informed consent in 1979. From then on, specific details of informed consent are shaping up and developing through court precedents. The duty of informed consent of doctor is based on article 10 of the Constitution and medical contract, and is expressly prescribed Article 12 of Framework Act on Health and Medical Services and other acts and regulations. By the way, the regulations about duty of informed consent of doctor have been established in Medical Law revised on December 20, 2016, and the revised Medical Law will be implemented on June 21, 2017. According to the revised Medical Law, medical practices subject to description and consent are operation, blood transfusion and general anesthesia that threaten to cause serious harm to human life or to the body. When performing these medical activities, the written consent must be explained and agreed upon in advance. If a doctor violates the law, he will incur fines of less than 3 million won. Comparing and viewing the revised Medical Law and existing legal principles about the duty of informed consent, we can confirm that there is a substantial difference between the two parties. Accordingly, despite the implementation of the revised medical law, the existing legal principles are unlikely to be affected. However, from the perspective of legal uniformity and stability, it is undesirable that legal judgments on the same issues differ from each other. The revised Medical Law about informed consent needs to be reformed according to existing legal principles. And, as in the case of Germany, it is desirable to include the matters concerning informed consent in the civil code.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.41-65
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• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• Journal of Arbitration Studies
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• v.26 no.1
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• pp.29-51
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• 2016

This paper reviews the Supreme Court decision of the United Kingdom in Jivraj v. Hashwani (2011) concerning the employment issue of arbitrators, falling within the exception of genuine occupational requirement under the Employment Equality (Religion or Belief) Regulations 2003, and nationality of arbitrators. In 2011, the Supreme Court of the United Kingdom delivered its judgment in Jivraj v. Hashwani, unanimously overturning decision of the English Court of Appeal. The facts of this case and the decision of the Court of Appeal have been widely discussed. The decision of the Supreme Court has been met with approval within the international arbitration community in London, having restored the legal position to that prior to the Court of Appeal's ruling. Thus, the Supreme Court unanimously overturned the Court of Appeal's finding that arbitrators are the employees of the arbitrating parties. Arbitrators were held to be genuinely self-employed, and therefore outside the scope of the Regulations or Equality Act(2010). As such, the anti-discrimination provisions are not applicable to the selection, engagement or appointment of arbitrators. Most importantly, the Supreme Court's finding that arbitrators are not employees removes the possibility of challenges to arbitration agreements on the grounds that they are in breach of the Equality Act. As a practical matter, parties no longer need to consider carving out nationality provisions when drafting arbitration agreements.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.239-273
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• 2009

Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice of Italian merchants were later introduced into England through Lombard merchants. It is, therefore, quite exact that English and Continental marine insurance law have common root. Nevertheless, some significant divergences between English and Continental marine insurance systems occurred since the late 17th century, mainly due to different approaches adopted by English courts. The rule of warranty in English marine insurance was established in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English law of marine insurance and developed different approaches, especially in the field of warranty in marine insurance law. Since the age of Lord Mansfield, English marine insurance law has developed a unique rule on warranty. Bearing in mind the realities of the 18th century, it could easily be understood why Lord Mansfield afforded such a strict legal character to marine warranties. At that time, the 'promise' given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed dramatically since the times of Lord Mansfield. Of course, it is still important that the assured keep his promises to the insurer under the insurance contract, which is based upon utmost good faith. Nevertheless, the remedy of automatic discharge from liability, regardless of existence of a casual link between the breach and loss seems harsh in the realities of the 21st century. After examining the warranty regime adopted by the German and Norwegian hull clauses, it is fair to say that they provide a more equitable approaches for the assured than does English law. Therefore, this article suggests that English warranty regime needs overall reform and it is time to reform.

• 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.

• International Commerce and Information Review
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• v.11 no.1
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• pp.291-308
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• 2009

The implied obligation under the contract of affreightment not to carry dangerous goods without prior notice to the carrier applies to the contractual relationship between the charterer and the owner under charterparties. The charterers will be in breach of an implied undertaking under the common law if they load dangerous cargoes without making notice of dangerous nature of them to the owner. It is indicated to be necessary to change the term "shipper" to "charterer", with relation to such implied obligation, where the Hague/Hague-Visby Rules are incorporated into the charter, however, it is not so apparent where an actual shipper is involved. So long as an actual shipper could be identified, the shipper rather than the charterer shall be responsible for damages arising from the dangerous nature of the cargo itself. In this case, the actual shipper is interpreted to have an implied contractual relationship with the carrier just by the act of delivering the cargo to the carrier for loading. If the vessel were damaged by shipment of the dangerous cargo under charterparty, the carrier can claim against such damages based on the contractual obligations under charterparties: "implied and expressed duty not to ship dangerous cargo without notice to the carrier"; "Art.IV.6 of the Hague/Hague-Visby Rules"; "Indemnity Clause" and "Redelivery Clause". The carrier has the conventional right under the Hague/Hague-Visby Rules to land, destroy or render the goods innocuous where the dangerous cargo threatens the means of transport or other interests on board. When the carrier has not consented to make the shipment, the carrier's disposal right could be exercised without limitation. However, where the carrier has consented to make the shipment of the dangerous goods with the knowledge concerned, the right of disposal of such goods should be exercised with limitation.