• Journal of Arbitration Studies
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• v.33 no.2
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• pp.85-108
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• 2023

In international commercial arbitrations that arise from an international commercial contract, arbitral tribunals ruling on the merits of the arbitration apply the law governing the contract. The parties to contract are free to designate the law under the principle of parties autonomy. This paper examines this principle under the Korean Arbitration Act, and makes some legislative suggestions. For this purpose, this paper first discusses what is the scope of matters covered by the law governing the contract, what are the rules of conflict-of-laws for determining the law governing the contract, and what happens when the arbitral tribunal incorrectly applies the law governing the contract? Then, this paper further goes to examine issues such as the form of choice-of-law agreement, the explicit or implicit choice of law, the parties' ability to choose the rules of law including lex mercatoria, the change of choice-of-law agreement, the independence of choice-of-law clause.

• Proceedings of the Korean Society of Marine Engineers Conference
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• 2006.06a
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• pp.141-142
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• 2006

In relation to the determination of the appropriate choice of law in most of the maritime law issues, 'the law of the flag' or 'the law of the ship's nationality' is commonly used to apply to several provisions which is imposed in Korean Private International Law. But the theory of the law of the flag or ship's nationality suffers from serious problems in case of flag of convenience which is a flag flown by a vessel registered in one state, with which the vessel has few or no connections, while in reality the vessel is owned in or operated from another state. In this case, the article 8 of Korean Private International Law which stipulates the Exception of Choice of Law Clause can be applied to this matter, and thus it is essential to consider many factors which can be used in determining the applicable law through the most significant relationship or genuine link theory.

• Journal of Arbitration Studies
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• v.23 no.3
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• pp.1-23
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• 2013

Form requirements particularly for arbitration clauses are widely perceived as an obstacle for efficiently resolving disputes on an international level. The paper discusses the recent suggestion that the freedom of form principle under Art. 11 CISG extended to arbitration, forum selection, or choice of law clauses in international sales contracts and thus superseded any and all formal requirements in this regard. After analysing national and international form requirements with regard to said clauses, the authors elaborate that while dispute clauses are indeed encompassed by the CISG's scope of application, freedom of form under the CISG was neither intended to nor should it apply to dispute clauses. This result is further confirmed by the interplay of the CISG with other international conventions, first and foremost the 1958 New York Convention, as well as a careful analysis of the so called most-favourable-law-approach.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.54
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• pp.145-166
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• 2012

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises "in connection with"a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.435-459
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• 2011

The electronic trade(e-Trade) revolution is changing the international trade processes dramatically. It permits new kinds of interactions among exporting and importing firms as well as internally within the firms. Ever since the Internet became a popular communications medium in the 1990s, lawmakers have struggled to develop rules for determining which courts can hear disputes involving parties in different choice of law and jurisdictions. In conclusion, I suggest an ongoing research agenda for further refining and developing a more comprehensive cosmopolitan approach. Certainly, as these cases make clear, reconceptualizing the principles underlying court to-court relations is essential in a world where the idea of a transnational community of courts is fast becoming one of the dominant realities of twenty-first century law.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.199-241
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• 2004

This paper discusses to what extent the party autonomy can be allowed in intellectual property dispute resolution agreements in determination of governing law, international jurisdiction, and ADR agreement for arbitration, etc. in considering of the territoriality principle of IP. The party autonomy in choice of governing law and jurisdiction can be fully enjoyed in IP contract disputes. However, the freedom of choice is limited to the disputes regarding IF infringement disputes. The party autonomy is denied in the issues of determination of validity of patent or other IP rights. The author seeks the possibility to allow as much freedom in making choice of applicable law or jurisdiction, or entering into arbitration agreement.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.29
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• pp.39-61
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• 2006

The governing law in international commercial arbitration may be divided into governing arbitration law and governing substantive law. The former governs the parties' arbitration agreement and the conduct of any subsequent arbitration. But the later governs the parties' substantive rights and obligations, which means the law that governs contract formation and performance, and the law to be applied by the arbitrator to the merits of the dispute. The purpose of this paper is to examine how to determine the substantive governing law when there is express choice or implied choice between parties. Moreover this author checked any restrictions on party autonomy and also any possibilities to deviate from the governing law. In case of express choice the sources of the law or rules of law might be the national law of one of the parties, the neutral law, the general principles of law or lex mercatoria according to the arbitration law selected by the arbitral tribunal. Some arbitration laws or rules empower the arbitrator to decide the case ex aequo et bono or to act as amiable compositions. If the governing law could be determined expressly or impliedly by the parties, the arbitral tribunal would make a selection. In this case the criteria for selecting a governing law are not exactly same from country to country. But failing any indication by the parties as to governing law, the arbitral tribunal should apply the rules of law, the law or the law under the rule of conflict that the arbitrators consider applicable, according to the governing arbitration law. Among the connecting factors offered by the conflict rules, (which means the factors that the arbitrators consider applicable), some legal systems give precedence to the formation of the contract, other system to the place of performance of the contract, and others to the closest connection or centre of gravity. But the Rome Convention, which unified the conflict rules of the contracting states, gives precedence to the law of the domicile of the party which has to effect the performance which is characteristic of the contract. Finally this author suggested the Choice of Law Clause which covers governing substantive law and governing arbitration law at the same time. Thus the UNIDROIT Principles as well as any national law may be included as a governing law in international arbitration. So when we make sales or service contract, we should take into consideration of the UNIDROIT Principles as a governing law or a supplement to the governing law.

• The Journal of Asian Finance, Economics and Business
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• v.8 no.3
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• pp.155-163
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• 2021

The study aims to investigate the effect on Philippine occupational choice of House Bill No.7787, also known as the National Wage Law, which was filled by the Philippine Congress that mandates the implementation of an across the board minimum daily wage of Php750.00 to all workers in the Philippines. This study had used the Computable General Equilibrium-Top-Down Behavioral Microsimulation approach to determine the effect of National Wage Law on occupational choice. The results of the study revealed that the implementation of said National Wage Law would affect the distribution of labor force across occupational classification such as wage workers, entrepreneurial farming activities workers, and entrepreneurial non-farming activities workers. This has resulted from a higher utility that will be derived from the wage working sector once the National Wage Law will be implemented. Further, among regions in the Philippines, the Calabarzon, National Capital Region, and Central Luzon had recorded the highest number of workers who prefer the wage income sector. The findings of the study also suggest that the Philippine agricultural sector will be greatly affected by the National Wage Law due to the preference of workers to shift from the entrepreneurial farming sector to belong to the wage sector.

• The Journal of Fisheries Business Administration
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• v.43 no.1
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• pp.63-74
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• 2012

The Korean Conflict of Laws Act recently incorporated much of the European Union's recent revision in "EC Convention on the Law Applicable to Contractual Obligations (Rome 1980)"(hereinafter Rome Convention). With the revision of Rome Convention applied to contractual obligations,"Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)"(hereinafter Rome I) has taken effect on December 2009. Before the effectivation of Rome I, "Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)"(hereinafter Rome II) has come into effect on January 2009. This means the revision of certain rules and its practical implications need an in-depth study on governing law rules under Rome I which provides newly effected governing laws applicable to contractual obligations. Moreover, uniform choice of law rules on non-contractual obligations needs to focus especially on marine insurance contract. Where policy assignment and subrogation causes, how to decide the governing law which will be applied to the insurer as a third party? This article attempts to analyze emerging legal issues in legal regimes determining choice of law, especially those in international marine insurance contracts. This will help Korean practitioners to be dialed in legal affairs under English Law as the governing law in their contracts.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.25
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• pp.41-71
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• 2005

"UNIDROIT Principles 2004" focused on an enlargement rather than a revision. An additional Section or Chapter so to speak, which are about, the Authority of a Agents, Third Party Rights, Set-off, Assignment of Rights, Transfer of Obligations and Assignment of Contracts, and Limitation Periods have been added, while the only change of substance made to the 1994 Edition, apart from two paragraphs in the Preamble, and three new provisions in Chapter 1 and 2 which are necessary to adapt the Principles to the needs of electronic contracting. The Principles which have the nature of the restatement of international uniform laws (for example CISG) are continuous exercise. Therefore we should note whether in the future our concerns would be on a additional topics on a improvement of the current text by monitoring the reception of the "UNIDROIT Principles 2004" in practice, and the application by contracting parties. The purposes of the Principles may be classified into three ; the rules of law governing the contract, means of interpreting and supplementing international uniform law or domestic law, or models for national and international legislator. Among them, the function of governing law may be applied by the express choice by the parties or by the implied choice like "general principles of law" or "les mercatoria", and it may be applied in the absence of any choice of law by the parties. Among there importance functions, this writer would like to emphasize the function to supplementing international uniform law instruments. The reason is that the CISG which has been established as an international uniform sales act and to which our country would be a contracting State from March, 2005, needs a lot of gap-filling. For this purpose it is advisable the parties to insert following provisions in their contract. "This contract shall be governed by the CISG, supplemented when necessary by the UNIDROIT Principles 2004" Thus success in practice of the UNIDROIT Principles over the last then years has surpassed the most optimistic expectations. It is hoped that the 2004 Edition of the UNIDROIT Principles will be just as favorably received by legislators, business persons, lawyers, arbitrators and judges and become even better known and more widely used throughout the World.