• 무역학회지
• /
• 제45권5호
• /
• pp.117-139
• /
• 2020

In case of international long-term transactions, there are various risks of economic change of circumstances including skyrocketing price increase and shortage of raw material, as well as force majeure in a general sense. Nevertheless, pretty many of international long-term commercial contracts do not include the provisions of renegotiation and adaptation of the contract. In this case, possibility of renegotiation and adaptation depends mainly on the applicable law. Namely, it may be possible or not, according to choice of law. The reason is that national laws have nuances each other, and most of national courts are traditionally reluctant to accept hardship. and also, provisions of international uniform law (CISG) has ambiguity and inflexibility in relation to the problems of change of circumstances. Accordingly, this paper analyzes comparatively the doctrines and provisions related to renegotiation and adaptation of contracts of the most representative countries such as England, U.S.A., France, Germany as well as provisions CISG and soft law such as PICC. By doing so, the author makes clear which laws of instruments is more flexible or acceptable in allowing renegotiation and adaptation of long-term commercial contracts, and emphasizes on the importance of inclusion of express terms by using other alternative supplementing clauses, as a best solution for settling the problems of legal uncertainty of contract in relation to renegotiation and adaptation.

• 무역상무연구
• /
• 제12권
• /
• pp.65-84
• /
• 1999

During the past few decades, we have witnessed three approaches to overcome the legal disparities between trading countries: - determining the individual governing law in accordance with the conflict of laws principle; - unifying and harmonizing private international law into uniform rules and substantive laws under the auspices of ICC, UNCITRAL, UNIDROIT and various NGOs ; and - drafting model laws like the UNCITRAL Model Law on Electronic Commerce and promoting member countries to enact them. Against this backdrop, the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the process by which it was adopted, established the benchmark for the unification of commercial law. The CISG, completed in 1980, merged civil and common law concepts and came into force in 1988 after a certain number of countries endorsed the treaty. Besides the CISG, the U.N. Limitations Convention and the UNIDROIT Principles of International Commercial Law, to name a few, have attempted to set cross-border legal norms and standards in the international business transactions. However, since the advent of computer-based commerce, there have emerged all-out efforts to establish uniform rules before national legal systems have been developed. As a consequence, the Model Law on Electronic Commerce has become a specimen legislation covering functional equivalents of paper-based writing and signature. For the credit enhancement exemplified by the Uniform Rules for Demand Guarantees (ICC Publication No.458), the UNCITRAL prepared the U.N. Convention on Independent Guarantees and Stand-by Letters of Credit, which was adopted by the U.N. General Assembly in 1995 but remains still not effective as only two countries have ratified this treaty so far. In this connection, two draft conventions underway at UNIDROIT and UNCITRAL deserve our attention as the probability of unification in the Korean Peninsula is mounting. They are to create security interests for commercial finance in moveable equipment and accounts receivable. The UCC-type security rights are regarded to be useful to enable the North Koreans with limited properties to borrow from the banks.

• 무역상무연구
• /
• 제21권
• /
• pp.129-151
• /
• 2003

Nowadays even if environment of international commercial transaction is changing quickly municipal law could not meet with such change accordingly. So far, however, efforts towards unification have prevailingly taken the form of binding instruments, such as non-national or supranational legislation, international conventions or international model laws. Among them, the UNIDROIT Principles with parties' autonomous and yet non-binding character do not only meet the substantive requirements of a true law merchant. In addition they also counter some of the main points of criticism against the modern lex mercatoria. As such the Principles constitute a cornerstone in the lex mercatoria debate and may become the heart of the new lex mercatoria. The purpose of this article is to ask whether there could be applied the Principles in international commerce. For the purpose it is to investigate when the Principles are applied in international commerce and how effectively the Principles are applied for the decision in international commercial disputes. Even though the Principles are used for reference by parties involved for the voluntary regulation of their contract, it is sufficiently expected that the Principles are to be a stepstone of uniform contract law in international commerce. Until now cases of appling the Principles are not satisfied with its expectation as a source of non-legislative means of unification or harmonization of law. Given the party's autonomy in the contract, this is among other things because business parties are strongly tend to observe their national laws in their international commerce. And also, even though there are a number of neutral and uniform regulations for international commercial contracts, parties do not often recognize their usefulness with being up to expectation. In order to explore the applicability of the Principles a number of cases of ICC International Court of Arbitration and others are quoted.

• 한국중재학회지:중재연구
• /
• 제9권1호
• /
• pp.161-182
• /
• 1999

The purpose of this paper is to examine the applicability of the UNIDROIT Principle in international commercial arbitration. For this purpose, I have studies the basic two characters of this Principles: One is of general rule(principle); Another is of international and commercial character. According to CISG, questions concerning matters governed by the CISG which are not expressly settled in it are to be settled in conformity with the general principles, so this Principles will cover many questions which are not expressly settled in the applicable law, by gap-filing, analogy or usage. In the preamble of this Principles, there are five cases in which the Principles shall be applied or may be applied. If the disputes are submitted to the any national court, the application of this Principles would be restricted because of the mandatory rules of national, international or supranational origin. But the disputes are submitted to arbitration, the arbitrator would have more discretional powers to apply the Principles than the judge. The reason is that in the arbitration, the arbitrators do not bear obligation to act in conformity with the law applicable by virtue of the rules of rules of private international law. I also examined the applicability of the Principles in cases which there are no mentions in preamble: When the international arbitrators choose the Principles; When the arbitrators decide ex aequo et bono; When the both parties have not chosen the governing law; When there are gaps in domestic law chosen by the parties; When the applicable domestic law is insufficient. In all these cases, the Principles may be applied more easily and conveniently in arbitration than in litigation. Thus to envisage the application of this Principle in international arbitration, first both parties in international commercial contracts should incorporate this Principle as a governing law in their contracts, and second, the arbitrators should try to apply this Principles in their arbitrations by choice, analogy, general principles or usage.

• 한국중재학회지:중재연구
• /
• 제17권1호
• /
• pp.117-136
• /
• 2007

Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the international private law and the international commercial arbitration. The purpose of this article is to make research on the party's autonomy principle for the international commercial arbitral awards. For this purpose ist to analyse regal issue the applicability of the lex mercatoria and the possibility of $d\acute{e}pe\c{c}age$ relating to the party autonomy. In this Article ist dealt with Art. 29 para. 1 of the Korean Arbitration Act in comparison with Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure. The Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure provides equally. "The arbitral tribunal shall decide the dispute in accordence with such 'rules of law' as chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules." The term 'rule of law' used to describe the applicability of the lex mercatoria and the possibility $d\acute{e}pe\c{c}age$. Unlike Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para.1 of the German Code of Civil Procedure. Act, Art. 29(1) of the Korean Arbitration Act provides that the arbitral tribunal shall decide the dispute in accordence with the 'law' chosen by the parties as applicable to the substance of the dispute. However the majority view in Korea takes the position that the term 'law' should be interpreted broadly so as to encompass 'rules of law' at UNCITRAL Model Law and the German Code of Civil Procedure.

• 한국중재학회지:중재연구
• /
• 제16권1호
• /
• pp.81-119
• /
• 2006

The parties in the trade can have full autonomy and can resolve disputes independently, impartially and without delay by selecting arbitration by agreement. Korea and Japan had revised their Arbitration Laws to incorporate as many provisions of the 1985 UNCITRAL Model Law as possible. Japan had amended its century-old arbitration law, becoming the 45th country to adopt the UNCITRAL Model Law on International commercial arbitration. New Arbitration Law was enacted as Law No.138 of 2003 and effective on March 1, 2004, is applicable to both national and international arbitration. Korea had amended its arbitration law on December 31, 1999 and its New Arbitration Law incorporates the most of the 1985 UNCITRAL Model Law as Japan. Arbitration must be popular in resolving international commercial disputes in Northeast Asian bloc in order to increase the volume of intra-trade in the Northeast Asian bloc. But in order for the parties to make use of arbitration in the bloc, the arbitration laws of nations in the bloc must have similarity and unification. As Korea and Japan playes important roles in the bloc, both nations's arbitration laws must be studied in view of similarity and difference to unify both nations' arbitration laws by way of showing an example. Therefore, this paper deals with both nations' arbitration laws in view of comparative law to unify their arbitration laws and Northeast Asian Nations' arbitration laws.

• 무역상무연구
• /
• 제71권
• /
• pp.85-105
• /
• 2016

Independent guarantee is new financial product developed in international commercial transaction. The nature of independent guarantee is an independent undertaking, which takes the form of documentary transaction. As long as the documents presented by the beneficiary are on their face complying with the terms and conditions of the guarantee, the guarantor is obliged to pay upon the complying presentation. Where parties choose to apply for issue of independent guarantee in international commercial transactions in China, Chinese court shall respect the autonomy of parties. If either the guarantor or the beneficiary is located outside of China, or the facts which cause the establishment, change or cancellation of independent guarantee relationship occurred outside of China, it shall be deemed as foreign related independent guarantee. If the interested parties requests for confirmation of the independence of foreign related independent guarantee, it shall be supported by Chinese court. However, parties dealing with Chinese domestic commercial transaction have not fully realized the severity of independent guarantee liability. The market credit is being cultivated and the financial innovation is being explored at present in China. In order to guard against the systematic and the regional financial risk, before relevant rules are promulgated, Chinese court shall not recognize the independence guarantees issued for the domestic commercial transaction, but treat it as joint liability surety.

• 항공우주정책ㆍ법학회지
• /
• 제5권
• /
• pp.101-118
• /
• 1993

Generally there is no law and liability system which applies particulary to commercial space ventures. There are several international treaties and national statutes which deal with space ventures, but their impact on the liability of commercial space ventures has not been significant. Every state law in the United States will impose both tort and contract liability on those responsible for injuries or losses caused by defective products or by services performed negligently. As with the providers of other products and services, those who participate in commercial space ventures have exposure to liability in both tort and contract which is limited to the extent of the resulting damage The manufacturer of a small and cheap component which caused a satellite to fail to reach orbit or to operate nominally has the same exposure to liability as the provider of launch vehicle or the manufacturer of satellite into which the component was incorporaded. Considering the enormity of losses which may result from launch failure or satellite failure, those participated in commercial space ventures will do their best to limit their exposure to liability by contract to the extent permitted by law. In most states of the United States, contracts which limit or disclaim the liability are enforceable with respect to claims for losses or damage to property if they are drafted in compliance with the requirements of the applicable law. In California an attempt to disclaim the liability for one's own negligence will be enforceable only if the contract states explicitly that the parties intend to have the disclaimer apply to negligence claims. Most state laws of the United States will refuse to enforce contracts which attempt to disclaim the liability for gross negligence on public policy grounds. However, the public policy which favoured disclaiming the liability as to gross negligence for providers of launch services was pronounced by the United States Congress in the 1988 Amendments to the 1984 Commercial Space Launch Act. To extend the disclaimer of liability to remote purchasers, the contract of resale should state expressly that the disclaimer applies for the benefit of all contractors and subcontractors who participated in producing the product. This situation may occur when the purchaser of a satellite which has failed to reach orbit has not contracted directly with the provider of launch services. Contracts for launch services usually contain cross-waiver of liability clauses by which each participant in the launch agrees to be responsible for it's own loss and to waive any claims which it may have against other participants. The crosswaiver of liability clause may apply to the participants in the launch who are parties to the launch services agreement, but not apply to their subcontractors. The role of insurance in responding to many risks has been critical in assisting commercial space ventures grow. Today traditional property and liability insurance, such as pre-launch, launch and in-orbit insurance and third party liability insurance, have become mandatory parts of most space projects. The manufacture and pre-launch insurance covers direct physical loss or damage to the satellite, its apogee kick moter and including its related launch equipment from commencement of loading operations at the manufacture's plant until lift off. The launch and early orbit insurance covers the satellite for physical loss or damage from attachment of risk through to commissioning and for some period of initial operation between 180 days and 12 months after launch. The in-orbit insurance covers physical loss of or damage to the satellite occuring during or caused by an event during the policy period. The third party liability insurance covers the satellite owner' s liability exposure at the launch site and liability arising out of the launch and operation in orbit. In conclusion, the liability in commercial space ventures extends to any organization which participates in providing products and services used in the venture. Accordingly, it is essential for any organization participating in commercial space ventures to contractually disclaim its liability to the extent permitted by law. To achieve the effective disclaimers, it is necessary to determine the applicable law and to understand the requirements of the law which will govern the terms of the contract. A great deal of funds have been used in R&D for commercial space ventures to increase reliability, safety and success. However, the historical reliability of launches and success for commercial space ventures have proved to be slightly lower than we would have wished for. Space insurance has played an important role in reducing the high risks present in commercial space ventures.

• 무역상무연구
• /
• 제32권
• /
• pp.59-91
• /
• 2006

The Arbitration Act of Korea was promulgated in 1966. Since the promulgation of Arbitration Act of Korea, consecutive amendments took place in 1973, 1993, 1997, 1999, 2001 and 2002. Among the various set of amendments, those of 1999 were designed to accommodate the UNCITRAL Model Law on international Commercial Arbitration of 1985. Korea has acceded to special international conventions on dispute settlement such as the New York Convention of 1958 and the Washington Convention of 1965. The Korean Commercial Arbitration Board(KCAB) administers the arbitration proceedings in accordance with its Arbitration Rules approved by the Korean Supreme Court. Since the establishment of the first Arbitration Rules in 1966. consecutive amendments took place in 1973, 1981, 1989, 1993, 1996, 2000 and 2004. The KCAB plans to enact the International Arbitration Rules, which will be available to disputing parties in addition to the KCAB Arbitration Rules. In 2005, arbitration applications received at KCAB recorded a historic high at 213 cases, an increase of 22% from 175 cases in 2000. But in 2005, the total amount involved in the arbitration cases decreases to US$ 129 million, a decline of 63% from US$ 346 million in 2000. The KCAB should take the following measures for activating the commercial arbitration system: the globalization of KCAB, the advertisement of arbitration system, the security of qualified arbitrators, and the enhancement of the secretariat service. In conclusion, the KCAB should make efforts for the development of the arbitration system and for the upgrade of customer satisfaction. Moreover the KCAB should make further efforts to grow into a global arbitration institution as well as strengthening relations with international arbitration institutions.

• 한국중재학회지:중재연구
• /
• 제20권2호
• /
• pp.91-130
• /
• 2010

This thesis, which mainly focuses on judicial supervision of commercial arbitration in China, will deal with the developing process of arbitration system and analyze the actual condition of judicial supervision in commercial arbitration. And it also focuses on the underlying problems attributed to the excessive judicial intervention and an effort that the related academic world, arbitration industry and legal circles in China start to make in order to improve the system, resolving them. About the time China became a member of the WTO and about the 10th anniversary of the enforcement of Arbitration Law, powerful demands to solve the problems started to exist intensively. Academic field in China integrated these demands into the form of "proposed amendment of arbitration law", which enhanced the independence of arbitration and the autonomy of the involved parties drastically, as it accepted major contents of UNCITRAL Model Law while preserving of original tool of Chinese arbitration system. Separately from the movement in academic field, Supreme People's Court starts to exert itself for the, improvement of arbitration system, by announcing a series of proposed judicial interpretation so that it could collect the public opinion continuously and reflect the gathered opinion in judicial interpretation efficiently. Notwithstanding, there still remains to be ameliorated that the Arbitration Law of the PRC won't be able to overcome original limit when valuating judicial intervention on arbitration in some ways.