• Title/Summary/Keyword: Commercial Law

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A Study on the Utilization and Problems of Online Dispute Resolution : Focusing on the Online Arbitration (온라인분쟁해결의 활용과 문제점에 관한 연구 - 온라인중재를 중심으로 -)

  • Yu, Byoung-Yook
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.19
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    • pp.191-223
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    • 2003
  • Electronic commerce and the Internet offer unprecedented opportunities. The explosive expansion of the use of the Internet makes it possible for businesses to expand their markets and render services. Global transaction costs are easy to cut off using Internet and transaction speed is faster than before. Where cyberspace is not free from claims, Offline transaction can lead to problems and disputes the same is for cyberspace transactions. However ADR is not meet for the online transaction for speed, cost and open network system, ODR methods to resolve electronic commerce conflicts is crucial for building confidence and permitting access to justice in an online business environment. The use of the Internet and the network in dispute resolution has an impact on the types of communication implied in the relevant processes such as automated negotiation, online mediation and online arbitration and involves new technological issues such as the integrity and confidentiality of data and communication used to transmit and store data. Among the ODR systems Online Arbitration is currently binding both parties disputed and can achieve the aim of dispute award the same as the traditional arbitration. Arbitration is based on the New York Convention 1958, Arbitration Model law 1985 and national Arbitration Act that are founded on territorial area and rested on arbitration agreement, constitution of the arbitral tribunal, due process, final and binding award and enforcement of the arbitration award. To compare with this issues Online arbitration has unnecessarily legal unstability and risk. ODR is the burgeoning field and has created a new issues. All such issues which have been debated in the ADR are composed with ODR. But these are not limited Some of issues are further complicated by the nature of the online environment such as confidentiality and principle of parties. It is true that online arbitration should comply with legal provisions, but which is impossible to adhere of the law. Flexible translation and functional equivalence of legal provisions are needed for acceptance of electronic commerce disputes. Finally electronic commerce now takes place on the Internet, it is inevitable that the commercial world wants access to dispute resolution process that best suits the new commercial environment. ODR methods are processing for development and legal issues are considered by both national and international authorities. Introduction of new Conventions or amend Convention and Model law of ODR comes near.

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A Study on the Important Clause of International Sales Contract (국제물품매매계약(國際物品賣買契約)의 주요 조항(條項)에 관한 연구(硏究))

  • Park, Nam-Kyu
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.18
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    • pp.27-62
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    • 2002
  • The international sale contract is the central contracts in export-import transactions. A good sale contract or set of general conditions of sale will cover all the principal elements of the transaction, so that uncertainties are avoided. The parties' respective duties as concern the payment mechanism, transport contract and insurance responsibilities, inter alia, will all be clearly detailed in the contract. The following key clauses should be included in international contracts of sale and general conditions of sale: ${\bullet}$ preamble ${\bullet}$ identification of parties ${\bullet}$ description of goods ${\bullet}$ price and payment conditions ${\bullet}$ delivery periods and conditions ${\bullet}$ inspection of the goods - obligations and limitations ${\bullet}$ quantity or quality variations in the products delivered ${\bullet}$ reservation of title and passing of property rights ${\bullet}$ transfer of risk - how accomplished ${\bullet}$ seller's warranties and buyer's complaints ${\bullet}$ assignment of rights ${\bullet}$ force majeure clause and hardship clause ${\bullet}$ requirement that amendments and modifications be in writing ${\bullet}$ choice of law ${\bullet}$ choice of dispute resolution mechanism Under most systems of law, a party can be excused from a failure to perform a contract obligation which is caused by the intervention of a totally unforeseeable event, such as the outbreak of war, or an act of God such as an earthquake or hurricane. Under the American commercial code (UCC) the standard for this relief is one of commercial impracticability. In contrast, many civil law jurisdictions apply the term force majeure to this problem. Under CISG, the standard is based on the concept of impediments to performance. Because of the differences between these standards, parties might be well advised to draft their own force majeure, hardship, or excusable delays clause. The ICC publication, "Force Majeure and Hardship" provides a sample force majeure clause which can be incorporated by reference, as well as a hardship clause which must be expressly integrated in the contract. In addition, the ICC Model provides a similar, somewhat more concise formulation of a force majeure clause. When the seller wishes to devise his own excusable delays clause, he will seek to anticipate in its provision such potential difficulties as those related to obtaining government authorisations, changes in customs duties or regulations, drastic fluctuations in labour, materials, energy, or transportation prices, etc.

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Problems on the Door to Door Application of International Air Law Conventions (국제항공운송협약의 Door to Door 운송에의 적용에 관한 문제점)

  • CHOI, Myung-Kook
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.78
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    • pp.1-29
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    • 2018
  • This article demonstrates that both the Warsaw Convention Systemand the Montreal Convention are not designed for multimodal transport, let alone for "Door to Door" transport. The polemic directed against the "Door to Door" application of the Warsaw Convention systemand the Montreal Convention is predominantly driven by the text and the drafting philosophy of the said Contentions that since 1929 support unimodalism-with the rule that "the period of the carriage by air does not expend to any carriage by land, by sea or by inland waterway performed outside an airport" playing a profound role in restricting their multimodal aspirations. The drafters of the Montreal Convention were more adventurous than their predecessors with respect to the boundaries of the Montreal Convention. They amended Art. 18(3) by removing the phrase "whether in an aerodrome or on board an aircraft, or, in the case of landing outside an aerodrome, in any place whatsoever", however, they retained the first sentence of Art. 18(4). The deletion of the airport limitation fromArt. 18(3) creates its own paradox. The carrier can be held liable under the Montreal Convention for the loss or damage to cargo while it is in its charge in a warehouse outside an airport. Yet, damage or loss of the same cargo that occurs during its surface transportation to the aforementioned warehouse and vice versa is not covered by the Montreal Convention fromthe moment the cargo crosses the airport's perimeter. Surely, this result could not have been the intention of its drafters: it certainly does not make any commercial sense. I think that a better solution to the paradox is to apply the "functional interpretation" of the term"airport". This would retain the integrity of the text of the Montreal Convention, make sense of the change in the wording of Art. 18(3), and nevertheless retain the Convention's unimodal philosophy. English courts so far remain loyal to the judgment of the Court of Appeal in Quantum, which constitutes bad news for the supporters of the multimodal scope of the Montreal Convention. According the US cases, any losses occurring during Door to Door transportation under an air waybill which involves a dominant air segment are subject to the international air law conventions. Any domestic rules that might be applicable to the road segment are blatantly overlooked. Undoubtedly, the approach of the US makes commercial. But this policy decision by arguing that the intention of the drafters of the Warsaw Convention was to cover Door to Door transportation is mistaken. Any expansion to multimodal transport would require an amendment to the Montreal Convention, Arts 18 and 38, one that is not in the plans for the foreseeable future. Yet there is no doubt that air carriers and freight forwarders will continue to push hard for such expansion, especially in the USA, where courts are more accommodating.

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A Study on the reflection ratio of ICAO Annex 6 (Operations of Aircraft) incorporated into our domestic air laws - Focused on ICAO Annex 6 Part I (International Commercial Air Transport - Aeroplanes) - (ICAO 부속서 6(항공기 운항)의 국내 항공법령 반영률에 관한 연구 - ICAO Annex 6 Part I (국제상업항공운송-항공기)을 중심으로 -)

  • Noh, Kun-Soo;Jie, Min-Seok;Kim, Woong-Yi
    • The Korean Journal of Air & Space Law and Policy
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    • v.28 no.2
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    • pp.97-115
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    • 2013
  • The world-wide principal criteria of aircraft operations is ICAO Annex 6. Operations of Aircraft. Among ICAO Annex 6, Part I is for International Commercial Air Transport - Aeroplanes and it assumes major part of civil aviation. ICAO has been providing Contracting States with SARPs(Standards and Recommended Practices) and monitor each State's reflection degree into their domestic air law, so-called USOAP(Universal Safety Oversight Audit Program). Current ICAO USOAP is Snap-shot method, but it will be changed to USOAP-CMA method from the year of 2013. ICAO USOAP results have overall effects on national aviation industry such as routes, insurance, airlines cooperation and so forth. Low grades of results attract international attention and that leads to flag carrier's operation stoppage, route restriction, airlines cooperation restriction, insurance increase directly or indirectly. Thus it is important to get excellent grades in ICAO USOAP and to maintain confidence. Our government ranked top to get 98.89 grades in 2008 ICAO USOAP but after 2008 the revised provisions have not been reflected sufficiently into our air law. So I would like to grip reflection ratio of ICAO Annex 6 Part I into our domestic air law by using the most updated revised edition on this paper. Together I would like to suggest alternatives for the non-reflected and partially reflected.

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The Historical Origins and Modern Insights of the Chinese Arbitration System (중국 중재제도의 역사적 연원과 현대적 시사점)

  • Xiao Xiao
    • Journal of Arbitration Studies
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    • v.33 no.4
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    • pp.37-67
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    • 2023
  • Arbitration is a just and efficient method for resolving economic disputes. It adapts to the needs of economic development and is an important institution in today's society. Around the world, a tradition of resolving disputes through arbitration spontaneously developed in ancient times and gradually evolved into a legal system with the development of jurisprudence starting from the Middle Ages. In China, formal legislation on arbitration began in the modern era during the Republic of China period. However, the origins of arbitration as a method for resolving disputes can be traced back to ancient times, during the Qin and Han dynasties. The most significant modern arbitration legislation in China is the "Arbitration Law" enacted in 1995, which drew on the experiences of foreign arbitration laws. Despite this, there are still many areas in arbitration legislation that require improvement based on practical experiences. Currently, revisions to the Arbitration Law are underway, and historical experiences may offer valuable insights, assisting in better integrating the Arbitration Law with Chinese society. This article primarily focuses on the role and impact of the imported modern commercial arbitration system in China and how it can be harmonized with China's legal culture in the future.

Development of Automated Structural Design and Analysis Aided-Program of Aluminum Extrusion Carbody Structures for Railway Vehicle (알루미늄 압출재 철도차량 차체 구조물의 자동화 구조 설계 및 해석 지원 프로그램 개발)

  • Kim, Jun-Hwan;Shin, Kwang-Bok;Kang, Seung-Gu;Lee, Young-Ju
    • Proceedings of the KSR Conference
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    • 2011.10a
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    • pp.2679-2683
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    • 2011
  • The purpose of this study is to develop automated structural design and analysis aided-program of aluminum extrusion carbody structures for railway vehicle. This developed program is possible to perform simultaneously structural design and design verification of aluminum extrusion profiles independent of expertise and experience of design engineers. Design engineers was able to design it using database of existing aluminum extrusion profiles or user-defined function. The design verification was programmed to evaluate its structural integrity according to Korean Railway Safety Law or Urban Transit Safety Law. Also, this program could automatically generate an executable file of various commercial finite element program and CAD files such as stp and iges by GUI environment applications using MFC(Microsoft Foundation Classes). In conclusion, it is expected to contribute to reduce product development time and improve product quality of aluminum extrusion profile and structures in railway industry.

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Finite Element Analysis of Rubber Extrusion Forming Process (고무 압출성형 공정에 대한 유한요소 해석)

  • Ha, Yeon-Sik;Cho, Jin-Rae;Kim, Tae-Ho;Kim, Jun-Hyoung
    • Proceedings of the KSME Conference
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    • 2007.05a
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    • pp.762-767
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    • 2007
  • As a macromolecule material, melted rubber flow shows characteristics of shear thinning fluid. The dynamic viscosity of this rubber fluid is influenced by temperature and shear strain rate. In this study, the numerical simulation of rubber extrusion forming process has been performed using commercial CFD code, Polyflow. Power-law model considering the effect of shear rate is used for the computer simulation of this non-Newyonian flow. Also Non-isothermal behavior is considered as Arrhenius-law model. Distributions of velocity and temperature are predicted through the simulation.

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Problems and Revision of D-terms in Incoterms 2000 (Incoterms 2000 D-terms의 문제점(問題點)과 개정방안(改正方案))

  • Oh, Se-Chang
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.15
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    • pp.33-57
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    • 2001
  • Although the parties did not expressly incorporate Incoterms into their contracts, Incoterms which have reflected a generally authorized principles and custom might be a part of sale contract. As indication of Introduction in Incoterms 2000, although the D-terms are different in nature from the C-terms, since the seller according to the D-terms is responsible for the arrival of the goods at the agreed place or point of destination at the border or within the country of import. Therefore, according to importance of Incoterms, although Incoterms 2000 have been revised in line with the most current commercial practice, because mentioned problems in this paper can be raised, they must be revised through Introduction, Rules or Guide Book of Incoterms.

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An analysis on supporting programs of procuring goods for export in Korea

  • Kim, Jae-Seung;Park, Se-Hoon;Choi, Young-Joo
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.48
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    • pp.79-100
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    • 2010
  • To promote the nation's exports, in Korea several government led programs are alive for procuring and manufacturing goods for export. The trade supporting programs are consisted of Trade Financing Program, Trade Tax Program, and Trade Insurance. The programs are summarized ; First, Trade Financing Program is available to exporters of procuring raw materials and finished goods for export. It is extended with exceptionally low interests from the Korean commercial banks. Second, Trade Tax Program provides whole or part of customs drawback to exporters. customs drawback is' made when exporters meet requirements of Customs for export. Third, Trade Insurance Program cover risks of uncertainty which is beyond the exporters' capacity at low insurance premium. It is suggested that the exporters have deep knowledge of these three programs to their ends. Especially Trade Financing Program and Trade Insurance Program can be a combined work for the financially weak SMEs. Further, there are rooms for these programs to develop to enhance the competitiveness of SME exporters.

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Some Problems on the Guidebook to Incoterms(R) 2010 published by ICC (국제상업회의소 발간 "ICC Guide to Incoterms(R) 2010" 상의 문제점에 관한 연구)

  • Lee, Shie-Hwan
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.54
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    • pp.81-98
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    • 2012
  • The Incoterms(R) 2010 rules take account of the continued spread of customs-free zones, the increased use of electronic communications in business transactions, heightened concern about security in the movement of goods and changes in transport practices. And the Guide to Incoterms(R) 2010 is the authoritative companion work to Incoterms(R) 2010, the ICC rules on the use of domestic and international trade terms. The guide responds to business needs for a better understanding of these ICC rules that are used in countless commercial transactions every day. But, contrary to the previous guidebook, there is many errors and mistake in the Guide to Incoterms(R) 2010 which should be amended. The purpose of this paper is to point out the problems and amend the errors and unify the expression in guidebook.

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