• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.43-59
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• 2011

Incoterms 2010 have been revised in line with the latest changes in contemporary commercial practice. An understanding of Incoterms 2010 is essential. The Incoterms rules on the use of domestic and international trade terms, facilitate the conduct of global trade. Reference to an Incoterms 2010 rule in a sale contract clearly defines the parties' respective obligations and reduces the risk of legal complications. In 1980 the United Nations Convention on Contracts for the International Sale of Goods(CISG) was introduced to create international certainty and uniformity in the law and to govern issues that arise in an international sale of goods transaction. This paper focuses on harmony and ability of the CISG and Incoterms 2010 to govern contracts for the sale of goods.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.277-293
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• 1999

As the CISG has been legislated for a new legal system playing roles as uniform rules which govern international sale of goods, it requires appropriate criterion of interpretation. The Convention distinguishes between two levels of interpretation. One concerns the interpretation of the rules of contract law contained in the CISG itself, and the other the interpretation of specific statements or the conduct of the individual parties to a transaction.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.3-26
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• 2000

The International Chamber of Commerce published the millennium edition of its standard trade definitions, Incoterms 2000. Incoterms are a basic reference for sales contracts, in constant daily use throughout the world. The new version will make it easier for traders to do business in the new century, despite the growing volume and complexity of international transactions. Since Incoterms were first published in 1936, they have been updated six times. They precisely define the responsibilities of buyer and seller and are recognized as the international standard by customs authorities and courts in all the main trading nations. It is important for traders to incorporate the correct Incoterms into their international contracts to avoid unnecessary legal problems. Courts may otherwise interpret trade terms according to often widely divergent national laws and unless the use of Incoterms is specified, expensive legal disputes can arise. Division of costs is a most important element in every contract of sale. The parties must know not only who does what but also how costs resulting therefrom should be divided between them. In most cases the fact that a party must do something means that he must also bear the resulting costs, unless otherwise agreed. But there are many exceptions to this principle and uncertainties arise, particularly with respect to services performed by other parties. Also, difficulties arise with respect to the division of costs whenever additional costs are caused by unexpected events, such as hindrances causing a ship to deviate or to remain in a seaport longer than expected. The main principle of the division of costs is clear enough: the seller has to pay costs necessary for the goods to reach the agreed point of delivery, and the buyer has to pay any further costs after that point. But as noted, it is not always easy to implement this principle in practice, since the detailed distribution of functions under the various trade terms is not and cannot be fully defined in Incoterms. Instead, failing precise stipulations in the contract of sale, guidance must be sought from other criteria such as commercial practices used earlier by the same parties or the custom of trade.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.147-175
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• 2014

In contracts for the international sale of goods, a seller must deliver appropriate goods and hand over relevant documents according to a contract, which will transfer the ownership of the goods to a buyer. In this case, if there are defects in the contracted goods, the warranty liability will occur. However, in the United Nations Convention on Contracts for the International Sale of Goods (CISG), a term-the conformity of the goods to the contract-is used universally instead of the warranty. According to the CISG, a seller must deliver goods in conformance with the relevant contract in terms of quantity, quality, and specifications, and they must be contained in vessels or in packages according to the specifications in the contract. In addition, a certain set of requirements for conformity will be applied implicitly except when there is a separate agreement between parties. Further, the base period of conformity concerning the defects of goods is the point when the risk is transferred to the buyer. A seller shall be obliged to deliver goods that do not belong to a third party or subject to a claim then, and such obligations shall affect the right or claim of a third party to some extent based on intellectual property rights clauses. If the goods delivered by the seller lack conformity, or incur right infringement or claim of a third party, then it shall be regarded as a default item per the obligation of the seller. Thus, the buyer can exercise diverse means of relief as specified in Chapter 2, Section 3 (Article 45-Article 52) of the CISG. However, such means of relief have been utilized in various ways for individual cases as shown in judicial precedents made until now. Contracting parties shall thus keep in mind that it is best for them to make every contract airtight and they should implement each contract thoroughly and faithfully to cope with any possible occurrence of a commercial dispute.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.57
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• pp.35-60
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• 2013

The Incoterms which is one of the most useful international instrument for sale of goods provides when a contract goods deliver, risk passes and how costs are allocated between seller and buyer on the contract as long as they agree to use a rule of the Incoterms rules. The Incoterms rules have come into effective to use for an international or domestic trade of goods since January 2011, which have been modified several times since these established by ICC in 1936. The origin of Incoterms rules may had been appeared from English traditional FOB terms that had been affected to American regulations for the sale of goods. The Incoterms rules which had been started from the traditional English FOB terms and American FOB terms have been expanded other trade terms, such as CIF. Although FOB is based on the COD(Cash on Delivery), it is possible replaced COD to CAD(Cash against Delivery) through the use of Bill of Lading and Letter of Credit in the international sale of goods between seller and buyer according to the development of infrastructures on the international commercial transactions. This article exercises the process of transition of the Incoterms rules, being based on the English and American traditional FOB contract form through review literatures, judical precedents and provisions. Then this article provides some feasible alternatives to attempting to resolve some regulation problems of FCA, CPT, CIP, and D-rules in the Incoterms$^{(R)}$ 2010.

• Journal of Korea Trade
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• v.23 no.4
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• pp.80-102
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• 2019

Purpose - This paper aims to articulate relationship about factors influencing FTA utilization by dividing them into company's external and internal factors and performing investigation on the relationship between FTA utilization and export performance. Design/methodology - This study verified factors influencing FTA utilization by dividing them into company's external and internal factors and performing investigation on the relationship between FTA utilization and export performance. Empirical analysis was performed by setting internal and external factors required for FTA utilization as variables. To achieve this, research model was established based on previous study, hypothesis was deduced, and statistical program were used to test the hypothesis. This study performed empirical analysis using statistical program of SPSS 18.0 and AMOS 18.0 for the research model. Findings - Empirical analysis was performed regarding the effect of the FTA utilization on export performance and previous study defined export performance as the company's increased economy benefits through export and increase in new transactions. Analysis was also performed for factors affecting the FTA utilization by the company and through management and response of external factors and internal factors it was confirmed that the FTA utilization by the company led to increase in the company's export performance as a result. This study proposes a method to achieve export performance based on this. Originality/value - Companies seeking to utilize the FTA sign the Contract for the International Sale of goods and there are many conditions to meet in order to receive trade preferences during the transaction process. Existing trade order and order in the FTA have to be followed. Country of origin can be seen as key in the FTA. The Rule of Origin becomes the most important evaluation standard in applying preferential tariff in the FTA. Such regulations can be seen as external factors which cannot be controlled by the company. Internal factors are capabilities owned before that can be controlled by the company. The study sought to test the variables regarding factors centered on such capability. This study verified factors influencing FTA utilization by dividing them into company's external and internal factors and performing investigation on the relationship between FTA utilization and export performance.

• Journal of Korea Trade
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• v.27 no.3
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• pp.43-64
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• 2023

Purpose - This paper studies whether CISG can be a suitable governing law for pure service contracts. When CISG was first drafted, there was little disagreement on the fact that contracts for the sale of goods and those for the provision of services were two different types of contract. Based on this understanding, CISG explicitly provides that the Convention will apply to contracts where the preponderant part of the contractual obligation is on the sale of goods, not services. However, as more sales transactions have come to include more elements of services, mainly due to the advancement of the IoT industry, the distinction between goods and services became more blurred. Based on the observation of recent changes, some scholars even argue that such a change supports the applicability and suitability of CISG to even pure service contracts. The purpose of this paper is to critically analyze and evaluate their argument. Design/methodology - This paper focuses on two separate but related issues: CISG's 'applicability' and 'suitability' to service contracts. For the first issue, this paper will examine the rules of interpretation of international treaties under the Vienna Convention on the Law of Treaties of 1969, and will apply its rules to find the proper answer. For the second issue, this paper will perform logical and empirical analyses on the reasoning employed by scholars claiming the suitability of CISG to service contracts. Findings - This paper concludes that CISG does not, and should not, apply to pure service contracts. The argument that CISG applies to pure service contracts directly contravenes Article 3(2) of the Convention, which expressly states that it does not apply to a contract wherein the preponderant part of its obligation is about services rather than sales. Similarly, CISG is not a suitable governing law for pure service contracts because it aims provide rules specifically tailored to the needs of transactions of sales of goods, not services. Servitization of sales of goods transaction does not change this conclusion. Originality/value - This paper presents different views from those offered by some eminent scholars on the issue of applicability and suitability of CISG to service contracts. By doing so, it is hoped that the confusion caused in discussions so far are clarified. Hopefully, this paper can also provide practical guidance to practitioners engaged in the fields of international sales, services, and IoT industries.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.5
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• pp.7-44
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• 1993

This study is focused on the review of buyer's remedy resulting from the breach of seller's duty in contracts for the international sale of goods focusing on UNCCIS, 1980 and the problems and suggestions of proper ideas for solving the problems. First problem on the buyer's remedy is related to the breach of seller's duty on del ivory of the contracted goods. When seller has failed to deliver the contracted goods to buyer within the stipulated periods, buyer can treat the contract as avoided and claim damages from seller. By the way, since UNCCIS does not provide any stipulation on the time of buyer's avoidance of the contract, buyer can delay the time of avoidance when the price of contracted goods is rising rapidly and enlarge the amount of damages, Since this stipulation is clearly unreasonable, proper solutions are required for UNCCIS. Second problem is related to the breach of seller's duty on deliver of goods which are of the quantity, quality and description required by the contract and which are contained or packged in the manner required by the contract. When seller has failed to deliver goods which are confirm with the contract, buyer may have one of the two rights of damages and the price reduction according to UNCCIS provided that he does not choose the avoidance. But, since the character and position of the price reduction as a buyer's remedy are not sufficient solutions, more detailed review on this point is required. Third, Seller's duty to provide documents is very important for overseas trade, but UNCCIS does not provide any specific buyer's remedy in comparison with the other remedy and also does not provide any stipulation on the Letter of Credit which have important roles for a device of setting payment in overseas trade. This means that trade customs and practice have not sufficiently reflected in UNCCIS. As the problems mentioned above may decrease the evaluation of buyer's remedy in UNCCIS and, furthermore, that of UNCCIS itself, proper solutions on these points are needed.

• International Commerce and Information Review
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• v.8 no.1
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• pp.243-257
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• 2006

This study is to introduce the Chinese Contract Law against non-performance of the contract and to solve the wide range of problems involving to executing the trading contract. The parties' liability for the period of performance, the place of performance, the failure to deliver conforming goods together with it's nature of the lack of conformity, and the methods of compensation against damages and the force majeure clauses application. Those issues affect directly to commercial transactions in international business. The focus is more on the interrelationship of private individuals in its trade and on aiming to remove the legal obstacles from the Chinese Contract Law to freely flow of international trade. Reference may include foreign corrupt practices, Conventions on Contracts for the International Sale of Goods and Laws of England, France, and Japan. This study has brought the efforts of these issues in the full spectrum of performance and with concentrations on effectiveness to avoid the different viewpoints of the general principles of CISG and commercial practice founded pre-eminently. This study, in presenting the legal framework, will contribute to a better understanding of the purpose of rules of Chinese Contract -Law as they interact to the benefit of the parties involved in international trade transactions. The writer believes that a problem-oriented approach and the concentration as outlined above would offer a different perspective for law faculty teaching in this area and hope that this study can be sufficiently diverse to satisfy many of those views.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.23-42
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• 2018

This study compares the SGA and CISG to find out the difference of the criteria for calculating damages. and it intends to give some important points in trade practice. The damages is intended to compensate the victim for the breach of contract but there are differences between SGA and CISG as follow. First, the SGA and CISG have the same purpose of claiming damages. Both laws and regulations are subject to a full indemnification to compensate for the breach of the contract by the amount equivalent to the loss suffered by the victim. Second, in the general principle related to the calculation of damages, both law enforcement officials are required to be able to predict damages caused by breach of contract. In the case of SGA, however, a foreseeability test or remoteness of damages is required for the relationship between the contract violation and the loss. In other words, it can be said that the causal relation between the contract violation and the damage is strictly applied rather than the CISG. Finally, both laws and regulations of SGA and CISG have a big difference in criteria for calculating damages. In the CISG, after the contract is canceled, it is classified according to the existence of the alternative transaction and the damage amount is calculated based on the contract price. On the other hand, the SGA estimates the loss based on the market price at the delivery of the goods, reflecting the change in the market price instead of the contract price of the goods.