• Journal of Arbitration Studies
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• v.32 no.3
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• pp.71-91
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• 2022

The CISG does not stipulate the subject of the burden of proof, and in the arbitral award, the buyer is liable for proof compared to the seller for nonconformity of the product. Without a unified interpretation of the burden of proof of non-contractual goods, confusion of uncertainty may increase if the parties to the sale contract have a dispute due to the trade in goods. It is an important issue to create a unified regulation on this because the courts or arbitration agencies of the Contracting States of the CISG interpret and apply the "seller's obligation to conform to the goods contract" stipulated in this Convention in various ways. In this study, in the case of international Sales of Goods there is a tendency to prefer arbitration through arbitration agencies in the dispute, so the subject of burden of proof is analyzed through arbitration cases applied by CISG as the governing law. Most international commodity trading around the world is regulated by this Convention, but according to the rigid convention regulations, it is analyzed and interpreted through cases where this convention is applied to each country's international arbitration, suggesting the need for a rigid CISG revision.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.465-495
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• 2011

Domestic franchised businesses have been showing relatively fast growth, but the growth is expected to slow down as in those developed countries. In face of this changing market environment, domestic franchisers will have to turn their eyes abroad to achieve sustainable growth. On the other hand, more international franchisors could pursue expanding into the Korean market due to economic or strategic reasons in their home countries. In general, enterprises are faced with several barriers when entering foreign markets by franchising their operation. Issues relating to such entry barriers can be broadly classified into legal and managerial. To begin, international franchising necessitates enterprises to handle various aspects of legal issues. There are no internationally unified rules for franchise agreements as in international goods purchase contracts. This forces franchisors to have deep knowledge of concerned regulations and practices of each of the individual target countries, in particular franchising practices which differ from those of their own countries in terms of rights and obligations of the involved parties. Having regard to this situation, this study reviewed the EU's PEL CAFDC and other domestic and overseas regulations governing franchising. From the results, several contractual obligations were derived that need to be taken into account when handling the issues around the international franchise agreement. In closing this paper mainly having in mind enterprises in various business lines seeking to expand into international franchising, some unmet needs are worth commenting. First, there is an urgent need to establish practical guidelines along with the model agreement addressing the issues of international franchising in the absence of any unified international rules. Second, to meet the first need above, it is needed that the relevant authorities conduct a comprehensive review of the existing franchising regulations available across overseas countries and, based on the results, embark on gathering good common elements in the existing franchising regulations in individual countries, ultimately developing the best possible guidelines and examples.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.147-169
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• 2009

This paper deals with disputes incurred from the CISG provisions in relation with the conformity of goods with a view to finding the general way of approach made by the court and arbitration tribunal in the case laws for the interpretation of CISG based on 6(six) cases thereon. Throughout this study, it has been noted that the German Supreme Court devoted most in creating the general principle of CISG interpretation in relation with national compulsory law of regulation applicable on the conformity of goods. It was New Zealand mussels case in which the German supreme court decided that the exporting country's compulsory law of regulation would be applied in determining the conformity of goods. Furthermore, German supreme court added that CISG does not place an obligation on the exporter to supply goods, which conform to all statutory or other public provisions in force in the import state unless the same provisions exist in the export State as well, or the importer informed the exporter about such provisions existing in the import state, or the exporter had knowledge of the provisions due to special circumstances. It is stipulated in CISG that the goods conform with contract if they are fit for the purpose for which goods of the same description would ordinarily be used. When questions arise concerning matters governed by the CISG that are not expressly defined in the CISG, the question is to be settled in conformity with general principles on which the convention is based. Only when such a general principle cannot be found may the tribunal turn to other sources such as UNIDROIT Principles, Principles of European Contract Law and Lex Mercatoria, etc. Interpretation of CISG should be autonomous, in the sense that it should not depend on principles and concepts derived from any national legal system. Even where a CISG rule is directly inspired by domestic law, the court should not fall back on its domestic law, but interpret the rule by reference to the CISG with a view to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

• Korea Trade Review
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• v.41 no.5
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• pp.305-323
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• 2016

The scope of umbrella clause is very important because it is possible to extend or reduce the range of protection of the investment. Umbrella clause stipulated in the majority of BIT is often controversial, since there is no established criteria for the scope. So, this study considered ICSID arbitration cases related to the scope of umbrella clause. There are two different approaches for the scope of umbrella clause by arbitral tribunals. First, all of the disputes on the investment contract elevated to the disputes on the BIT. And umbrella clause can be applied that the host state entered into investment contract not only as a sovereign but also as a merchant. Second, all of the claims on the investment contract don't elevate to the claims on the BIT. Umbrella clause can be applied only if the host state violates the protected investment contractual rights and obligation under the BIT. And umbrella clause can be applied that the host state entered into investment contract as a sovereign but not as a merchant. Therefore, this study suggests to concretely specify the scope of umbrella clause under the BIT. And it is necessary to improve predictability by establishing continual database of the scope of umbrella clause and to prepare for investment disputes related to the scope of umbrella clause.

• Journal of Korea Trade
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• v.24 no.8
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• pp.101-120
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• 2020

Purpose - The buyer's right to withhold performance is a useful and important self-help remedy to protect himself from the seller's breach of contract, and it is also the coercive means to induce the seller to perform his part of contract. However, the buyer's exercise of such a right often exposes himself to the risk of breaching the contract. This is generally due to his ignorance when he is entitled to the right and also uncertainties inherent in the law. Therefore, the purpose of this paper is to examine what the requirements should be fulfilled before the buyer exercises the right for the seller's actual breach of contract. Design/methodology - In order to achieve the purposes of the study, it executes a comparative study of the rules as to the requirements for the buyer's right to withhold performance for the seller's actual non-performance under the CISG and the CESL. It mainly focuses on performance due, the seller's non-performance, the buyer's readiness to perform and the requirement of notice. Findings - The main findings of this comparative study can be summarized as follows: Although the CISG has no expressive provision for the buyer's general right to withhold performance for the seller's actual non-performance, it may be inferred from the general principles the CISG underlies, synallagmatic nature of the contract. In addition, it can be drawn by analogy from relevant provisions of the CISG. On the other hand, the CESL expressively provides that the buyer has a general right to withhold performance where the seller fails to tender performance or perform the contract. Therefore, it seems that the position of CESL is rather easier and more apparent to allow the buyer to withhold performance for the seller's non-performance. Originality/value - Most of the existing studies on the right to withhold performance under the CISG have centered on the right to withhold performance for an anticipatory breach of contract. On the other hand, there have been few prior studies on the right to withhold performance for the actual nonperformance during a contractual period of performance. Therefore, this paper examined the requirements for the buyer's right to withhold performance under the CISG and the CESL in a comparative way for the seller's actual breach of obligation. In this conclusion, it may provide practical and legal considerations and implications for business people who are not certain about the right to withhold performance.

• Asia pacific journal of information systems
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• v.17 no.2
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• pp.49-81
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• 2007

Research in the IS (Information Systems) outsourcing has focused on the importance of legal contracts and partnerships between vendors and clients. Without detailed legal contracts, there is no guarantee that an outsourcing vendor would not indulge in self-serving behavior. In addition, partnerships can supplement legal contracts in managing the relationship between clients and vendors legal contracts by itself cannot deal with all the complexity and ambiguity involved with IS outsourcing relationships. In this paper, we introduce a psychological contract (between client and vendor) as an important variable for IS outsourcing success. A psychological contract refers to individual's mental beliefs about his or her mutual obligations in a contractual relationship (Rousseau, 1995). A psychological contract emerges when one party believes that a promise of future returns has been made, a contribution has been given, and thus, an obligation has been created to provide future benefits (Rousseau, 1989). An employmentpsychological contract, which is a widespread concept in psychology, refers to employer and employee expectations of the employment relationship, i.e. mutual obligations, values, expectations and aspirations that operate over and above the formal contract of employment (Smithson and Lewis, 2003). Similar to the psychological contract between an employer and employee, IS outsourcing involves a contract and a set of mutual obligations between client and vendor (Ho et al., 2003). Given the lack of prior research on psychological contracts in the IS outsourcing context, we extend such studies and give insights through investigating the role of psychological contracts between client and vendor. Psychological contract theory offers highly relevant and sound theoretical lens for studying IS outsourcing management because of its six distinctive principles: (1) it focuses on mutual (rather than one-sided) obligations between contractual parties, (2) it's more comprehensive than the concept of legal contract, (3) it's an individual-level construct, (4) it changes over time, (5) it affects organizational behaviors, and (6) it's susceptible to organizational factors (Koh et al., 2004; Rousseau, 1996; Coyle-Shapiro, 2000). The aim of this paper is to put the concept, psychological contract commitment (PCC), under the spotlight, by finding out its mediating effects between legal contracts/partnerships and IS outsourcing success. Our interest is in the psychological contract commitment (PCC) or commitment to psychological contracts, which is the extent to which a partner consistently and deeply concerns with what the counter-party believes as obligations during the IS project. The basic premise for the hypothesized relationship between PCC and success is that for outsourcing success, client and vendor should continually commit to mutual obligations in which both parties believe, rather than to only explicit obligations. The psychological contract commitment playsa pivotal role in evaluating a counter-party because it reflects what one party really expects from the other. If one party consistently shows high commitment to psychological contracts, the other party would evaluate it positively. This will increase positive reciprocation efforts of the other party, thus leading to successful outsourcing outcomes (McNeeley and Meglino, 1994). We have used matched sample data for this research. We have collected three responses from each set of a client and a vendor firm: a project manager of the client firm, a project member from the vendor firm with whom the project manager cooperated, and an end-user of the client company who actually used the outsourced information systems. Special caution was given to the data collection process to avoid any bias in responses. We first sent three types of questionnaires (A, Band C) to each project manager of the client firm, asking him/her to answer the first type of questionnaires (A).

• Journal of Arbitration Studies
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• v.17 no.3
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• pp.3-30
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• 2007

The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") done in New York on June 10, 1958 has been adhered to by more than 140 States at the time of this writing, including almost all important trading nations from the Capitalist and Socialist World as well as many developing countries. The Convention can be considered as the most important Convention in the field of arbitration and as the cornerstone of current international commercial arbitration. Korea has acceded to the New York Convention since 1973. When acceding to the Convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provisions relating to the enforcement of arbitral awards falling under the New York Convention begin at Article III. The Article III contains the general obligation for the Contracting States to recognize Convention awards as binding and to enforce them in accordance with their rules of procedure. The Convention requires a minimum of conditions to be fulfilled by the party seeking enforcement. According to Article IV(1), that party has only to supply (1) the duly authenticated original award or a duly certified copy thereof, and (2) the original arbitration agreement or a duly certified copy thereof. In fulfilling these conditions, the party seeking enforcement produces prima facie evidence entitling it to obtain enforcement of the award. It is then up to the other party to prove that enforcement should not be granted on the basis of the grounds for refusal of enforcement enumerated in the subsequent Article V(1). Grounds for refusal of enforcement are stipulated in Article V is divided into two parts. Firstly, listed in the first Para. of Article V are the grounds for refusal of enforcement which are to be asserted and proven by the respondent. Secondly, listed in Para. 2 of Article V, are the grounds on which a court may refuse enforcement on its own motion. These grounds are non-arbitrability of the subject matter and violation of the public policy of the enforcement country. The three main features of the grounds for refusal of enforcement of an award under Article V, which are almost unanimously affirmed by the courts, are the following. Firstly, The grounds for refusal of enforcement mentioned in Article V are exhaustive. No other grounds can be invoked. Secondly, and this feature follows from the first one, the court before which enforcement of the award is sought may not review the merits of the award because a mistake in fact or law by the arbitrators is not included in the list of grounds for refusal of enforcement set forth in Article V. Thirdly, the party against whom enforcement is sought has the burden of proving the existence of one or more of the grounds for refusal of enforcement. The grounds for refusal of enforcement by a court on its own motion, listed in the second Para. of Article V, are non-arbitrability of the subject matter and public policy of the enforcement country. From the court decisions reported so far at home and abroad, it appears that courts accept a violation of public policy in extreme cases only, and frequently justify their decision by distinguishing between domestic and international public policy. The Dec. 31, 1999 amendment to the Arbitration Act of Korea admits the basis for enforcement of foreign arbitral awards rendered under the New York Convention. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of the award.

• Journal of Arbitration Studies
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• v.19 no.2
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• pp.95-126
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• 2009

One of the controversial issues in investor-state investment arbitration is the interpretation of "umbrella clause" that is found in most BIT and FTAs. This treaty clause requires on Contracting State of treaty to observe all investment obligations entered into with foreign investors from the other Contracting State. This clause did not receive in-depth attention until SGS v. Pakistan and SGS v. Philippines cases produced starkly different conclusions on the relations about treaty-based jurisdiction and contract-based jurisdiction. More recent decisions by other arbitral tribunals continue to show different approaches in their interpretation of umbrella clauses. Following the SGS v. Philippines decision, some recent decisions understand that all contracts are covered by umbrella clause, for example, in Siemens A.G. v. Argentina, LG&E Energy Corp. v. Argentina, Sempra Energy Int'l v. Argentina and Enron Corp. V. Argentina. However, other recent decisions have found a different approach that only certain kinds of public contracts are covered by umbrella clauses, for example, in El Paso Energy Int'l Co. v. Argentina, Pan American Energy LLC v. Argentina and CMS Gas Transmission Co. v. Argentina. With relation to the exhaustion of domestic remedies, most of tribunals have the position that the contractual remedy should not affect the jurisdiction of BIT tribunal. Even some tribunals considered that there is no need to exhaust contract remedies before bringing BIT arbitration, provoking suspicion of the validity of sanctity of contract in front of treaty obligation. The decision of the Annulment Committee In CMS case in 2007 was an extraordinarily surprising one and poured oil on the debate. The Committee composed of the three respected international lawyers, Gilbert Guillaume and Nabil Elaraby, both from the ICJ, and professor James Crawford, the Rapportuer of the International Law Commission on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, observed that the arbitral tribunal made critical errors of law, however, noting that it has limited power to review and overturn the award. The position of the Committee was a direct attack on ICSID system showing as an internal recognition of ICSID itself that the current system of investor-state arbitration is problematic. States are coming to limit the scope of umbrella clauses. For example, the 2004 U.S. Model BIT detailed definition of the type of contracts for which breach of contract claims may be submitted to arbitration, to increase certainty and predictability. Latin American countries, in particular, Argentina, are feeling collectively victims of these pro-investor interpretations of the ICSID tribunals. In fact, BIT between developed and developing countries are negotiated to protect foreign investment from developing countries. This general characteristic of BIT reflects naturally on the provisions making them extremely protective for foreign investors. Naturally, developing countries seek to interpret restrictively BIT provisions, whereas developed countries try to interpret more expansively. As most of cases arising out of alleged violation of BIT are administered in the ICSID, a forum under the auspices of the World Bank, these Latin American countries have been raising the legitimacy deficit of the ICSID. The Argentine cases have been provoking many legal issues of international law, predicting crisis almost coming in actual investor-state arbitration system. Some Latin American countries, such as Bolivia, Venezuela, Ecuador, Argentina, already showed their dissatisfaction with the ICSID system considering withdrawing from it to minimize the eventual investor-state dispute. Thus the disagreement over umbrella clauses in their interpretation is becoming interpreted as an historical reflection on the continued tension between developing and developed countries on foreign investment. There is an academic and political discussion on the possible return of the Calvo Doctrine in Latin America. The paper will comment on these problems related to the interpretation of umbrella clause. The paper analyses ICSID cases involving principally Latin American countries to identify the critical legal issues arising between developing and developed countries. And the paper discusses alternatives in improving actual investor-State investment arbitration; inter alia, the introduction of an appellate system and treaty interpretation rules.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.27-53
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• 2015

Recently, a plastic surgery hospital in Seoul, has been raided following suspicions that ghost surgery was performed by an unauthorized substitute surgeon on a chinese woman who lapsed into a death. Following the incident, an organization to eradicate ghost surgery was created in March by Consumers Korea, founded to protect consumer rights, and the Korea Alliance of Patients Organization. The organization has received reports of illegal medical practices. To substitute another physician without the patient's consent and without his knowledge of the substitution is fraud and deceit and a violation of a basic ethical concept. The patient as a human being is entitled to choose his own physician and he should be permitted to acquiesce in or refuse to accept the substitution. It should be noted that it is the operating surgeon to whom the patient grants his consent to perform the operation. The patient is entitled to the services of the particular surgeon with whom he contracts. The surgeon, in accepting the patient, obligates himself to utilize his personal talents in the performance of the operation to the extent required by the agreement creating the physician-patient relationship. He cannot properly delegate to another the duties which the patient authorizes him to perform personally. 'Ghost surgery' comes under Article 257(Inflicting Bodily Injury on Other or on Lineal Ascendant) of the Criminal Code. Substitution another physician without the patient's consent and without his knowledge of the substitution shall be performed Inflicting Bodily Injury. This is a controversial issue that'ghost surgery' comes under Article 347(Fraud) of the Criminal Code. It maybe controversial that operation substituted by another physician without the patient's consent and without his knowledge of the substitution becomes the component of Fraud. Also, Ghost surgery' comes under Article 27 (Prohibition of Unlicensed Medical Practice, etc.), Article 22 (Medical Records, etc.), Article 33 (Establishment) of the Medical Service Act. The surgeon's obligation to the patient requires him to perform the surgical operation: (1) within the scope of authority granted him by the consent to the operation; (2) in accordance with the terms of the contractual relationship; (3) with complete disclosure of all facts relevant to the need and the performance of the operation; and (4) to utilize his best skill in performing the operation.