• 무역상무연구
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• 제69권
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• pp.23-43
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• 2016

This study describes the exclusion of the seller's liability for defects in title under CISG and UCC. Through comparing two provisions, this article provides contracting parties with guidance regarding choosing governing laws and practical advice. CISG and UCC states not only the seller's liability for defects in title but also the exclusion respectively. Under two provisions, contracting parties who wish to avoid this liability may agree that the liability will not apply. Under UCC ${\S}$2-213(2), the seller's warranty can be disclaimed by specific language in the contract or by the circumstances surrounding the transaction. Although there is no express exclusion provision under CISG Article 41 and 42, Article 6 allows contracting parties to agree that they may exclude the application of the seller's liability. Both Article 42 under CISG and ${\S}$2-213(3) under UCC provide where the buyer furnishes specification to the seller. Under UCC ${\S}$2-213(3), it is the buyer's warranty to hold the seller harmless from any claims which arise from the seller complying with specification furnished by the buyer. But, under CISG Article 42, the seller's duty is excluded if the third party right or claim result from the fact that the seller has complied with specifications provided by the buyer. Therefore Article 42 does not charge the buyer with the duty, but rather limits the circumstances under which he could cause claims under Article 42. Interestingly, CISG has provisions which are absent from UCC. First, under Article 41, the seller escapes the liability if the buyer agree to take the goods subject to the third party right or claim. Second, under Article 42(2)(a), the seller is not liable if the buyer knew or could not have been unaware of the third party right or claim at the time of the conclusion of the contract.

• 한국중재학회지:중재연구
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• 제21권3호
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• pp.3-20
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• 2011

An arbitrator is an impartial person chosen to decide the issue between parties engaged in a dispute. But the arbitrator appointed by a party or arbitration institution shall be impartial or independent and should disclose to the administrator any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. If, at any stage during the arbitration, new circumstances arise that may give rise to such doubts, the arbitrator shall promptly disclose such circumstances to the parties and to the administrator. Upon receipt of such information from an arbitrator or a party, an party must challenge any arbitrator whenever circumstances exist that give rise to justifiable doubts as to arbitrator's impartiality or independence. Under these circumstance, there were two cases declared by the Korean Supreme Court in relation to the cancellation of the arbitration award. One arbitral case was cancelled for the reason of the having been arbitral procedure without disclosure arbitrator's impartiality, and the other case was refused to cancel the ward for the reason of the having been arbitral procedure without challenge an arbitrator. There are not, however, the standard to decide what is definitely the arbitrator's impartiality or independence and the difference on qualification between arbitrator chosen by an party and neutral arbitrator in korean arbitration law and rules. Nevertheless, korean court require arbitrator to be impartial and independent and the arbitration parties to challenge arbitrator' impartiality or independence.

• 무역상무연구
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• 제14권
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• pp.103-152
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• 2000

English contract law has traditionally taken the view that it is not the duty of the parties to a contract to give information voluntarily to each other. In English law, one of the principal distinctions between insurance contract law and general contract law is the existence of the doctrine of utmost good faith in insurance law. The doctrine gives rise to a variety of duties, some of which apply before formation of the contract while others apply post-formation. This article is, therefore, designed to analyse the overall structure and problems of the doctrine of utmost good faith in English marine insurance law. The results of analysis are as following : First, the requirement of utmost good faith in marine insurance law arises from the fact that many of the relevant circumstances are within the exclusive knowledge of the assured and it is impossible for the insurer to obtain the facts to make a appropriate calculation of the risk that he is asked to assume without this information. Secondly, the duty of utmost good faith provided in MIA 1906, s. 17 has the nature as a bilateral or reciprocal, overriding and absolute duty. Thirdly, the Court of Appeal in Skandia held that breach of the pre-formation duty of utmost good faith did not sound in damages since the duty did not arise out of an implied contractual term and the breach did not constitute a tort. Instead, the Court of Appeal held that the duty was an extra-contractual duty imposed by law in the form of a contingent condition precedent to the enforceability of the contract. Fourthly, the scope of the duty of utmost good faith is closely related to the test of materiality and the assured is required to disclose only material circumstances subject to MIA 1906, s. 18(1) and 20(1). The test of materiality, which had caused a great deal of debate in English courts over 30 years, was finally settled by the House of Lords in Pan Atlantic and the House of Lords rejected the 'decisive influence' test and the 'increased risk' test, and the decision of the House of Lords is thought to accept the 'mere influence' test in subsequent case by the Court of Appeal. Fifthly, the insurer is, in order to avoid contract, required to provide proof that he is induced to enter into the contract by reason of the non-disclosure or misrepresentation of the assured. Sixthly, the duty of utmost good faith is, in principle, terminated before contract is concluded, but it is undoubtful that the provision under MIA 1906, s. 17 is wide enough to include the post-formation duty. The post-formation duty is, however, based upon the terms of marine insurance contract, and the duty lies entirely outside s. 17. Finally, MIA 1906, s. 17 provides expressly for the remedy of avoidance of the contract for breach of the duty. This means rescission or retrospective avoidance of the entire contract, and the remedy is based upon a fairly crude 'all-or-nothing' approach. What is needed in English marine insurance law is to introduce a more sophiscated or proportionate remedy.

• 무역상무연구
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• 제72권
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• pp.57-80
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• 2016

Since 2006, the Law Commission and Scottish Law Commission have been engaged in a major review of insurance contract law, finally leading to the legislation of Insurance Act 2015. According to the enforcement of the Insurance Act 2015 on 12 August 2016, ss 18~20 of the Marine Insurance Act 1906(MIA 1906) were repealed and substituted by the new concept of fair presentation. This article intends to analyze the legal implications through the comparative research between the duty of fair presentation in Insurance Act 2015 and ss 18~20 of MIA 1906. The major changes in Insurance Act 2015 are designed to (1) encourage active engagement by the insurer rather than passive underwriting, asking questions of the insured if the desired information is not provided at the stage of proposal; (2) encourage policyholders to structure and signpost their presentation in an clear and accessible way, and prevent data dumps; (3) give guidance as to how the insured should prepare a fair presentation, by undertaking a reasonable search of available information and giving examples of what circumstances might be material; (4) clarify whose knowledge in the insured's organization is attributed to the insured for the purposes of disclosure; (5) clarify the exceptions to the duty of disclosure, including circumstances "which are known or presumed to be known to the insurer"; and (6) replace the remedy of avoidance in all circumstances with more proportionate remedies. This is a default regime, which may be altered by agreement between the parties.

• 한국항해학회지
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• 제19권2호
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• pp.77-97
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• 1995

The protection of the marine environment is one of the main international legal problems in recent years. In parallel with the industrial development, a great quantity of chemical materials were used and in consequence, mass transportation of oil and other dangerous materials was required on the one hand, and discharge of industrial wasters drew also the attention on the other hand. Furthermore, oil tankers accidents, mass use of nuclear materials, sea-bed exploration and exploitation stimulated further deep human concern on the marine environment. The expansion of international concern to new and more dangerous sources of marine pollution regarded more strict and legal control on the Oil Tanker(DWT 95, 000tons, Cb=0.805) model. Calculation results are compared to the international, especially regional level. In particular, this study is concerned with the preservation of the Northeast Asian Seas surrounded by Japan, the Russian Far East, South Korea, North Korea, China and Taiwan. These adjacent countries must intensify cooperation regarding the prevention, reduction and control of the contamination of the sea. And this cooperation between the States concerned should, as much as possible, be aimed at maximizing the effectiveness of measures to prevent or abate transboundary environmental pollution. To achieve this purpose, States concerned should be imposed upon duties such as duty to assess the environmental impact, duty to inform, duty to consult and duty to assist on the basis of general principle of international law, international customary law and other various resolutions of international bodies. Depending on the nature and extent of actual or potential transboundary pollution with the use of a natural resource or the environment in general the establishment of some form of institutionalized cooperation between the States concerned may become useful or indispensable. The functions of this Organization are, inter alia, to keep the implementation of the Convention and the protocals under continuous observation, to make recommendations on regional or sub-regional rules and standards to be elaborated and on measures to be taken by the Contracting Parties, to be notified of any grave and imminent danger from pollution or threat of pollution by the Contracting Parties and to promote in close cooperation with appropriate governmental bodies additional measures to protect the marine environment of the Northeast Asian Seas, and so on. Above mentioned countries, first of all, are located within the Northeast Asian Seas geographically and, therefore, take responsibilities of preserving the clean sea against marine interferences regardless of any difference of the social, political and economic systems. They must be followed under the UNCLOS and other marine conventions. Under the present circumstances, Northeast Asian Seas will become dead seas in case that there is no instant and prompt action against pollution. Hence we have an absolute obligation to promote the development of the mandatory international environmental law, which in turn can faciliate more effective implementation of the regional cooperation by the neighbouring states within this area.

• 한국중재학회지:중재연구
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• 제28권2호
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• pp.217-248
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• 2018

This paper reviews the Supreme Court of Japan in Decision of December 12, 2017, 2016 (Kyo) 43 (2011) concerning arbitrator's duty of disclosure and reasonable investigation under the Japan Arbitration Act (Arbitration Act). The Supreme Court of Japan recently issued a precedential decision interpreting, for the first time, the arbitrator disclosure requirements of the Arbitration Act. Under Article 18(4) of the Arbitration Act, arbitrators have an ongoing obligation to disclose circumstances which may give rise to justifiable doubts as to their impartiality or independence. The Supreme Court held that Article 18(4) of the Arbitration Act - requiring arbitrators to disclose all "facts likely to give rise to doubts as to his/her impartiality or independence" - (1) is not satisfied by blanket disclosures or advance waivers of potential future conflicts, and (2) requires disclosure of facts both known to an arbitrator or "that can be normally ascertained by an investigation that is reasonably possible${\cdots}$" This new standard presents opportunities and challenges for enforcing arbitration awards in Japan, and suggests measures that both arbitrators and parties can use to protect their awards. Also, the Supreme Court's new standards for evaluating arbitrator conflict disclosures suggest some measures that both arbitrators and parties to arbitration in Japan can take to protect the enforceability of their awards. The key factual question posed by the Supreme Court's ruling was whether an arbitrator's conflicts check was reasonable. Maintaining records regarding a review of potential conflicts or any investigation provides a ready source of proof in case of a future challenge. The Supreme Court has spoken clearly that so-called advance waivers of potential conflicts are not effective under Japanese law. Instead, to the extent that potential conflicts arise during the course of arbitration, they should be specifically disclosed.

• 무역상무연구
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• 제69권
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• pp.523-541
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• 2016

According to Chinese Arbitration Law, combination of mediation with arbitration means that in the process of arbitration, arbitrator may conduct mediation proceedings for the case they are handling, provided both parties agree to do so. If mediation succeeds and the parties reach a settlement agreement, the arbitrators may render a consent award or a written mediation statement in accordance with the contents of the settlement agreement. If mediation fails, the arbitration proceedings will be resumed until the case is concluded by making of an arbitral award. There is no formal name of this system in China, it is called "combination of mediation with arbitration", "mediation in arbitration process" or "arbitration-mediation", the author of this thesis select "arbitration-mediation" and make it simply as "Arb-Med". This thesis concentrates on three issues that arbitrators and the parties have to clarify and pay attention to once they choose to use Arb-Med. The first part is about the 'waivable problems', include waive the right to challenge a arbitrator who act as a mediator at the same time with parties' approval, as well as the question about the waiver of the arbitrator's duty to disclose confidential information obtained during mediation. The second part is 'public policy in Arb-Med', introduces the concept of public policy, the bias may arise the complaint about public policy, and the due procedure problem. And the last part is about the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, especially about the award including some contents which has relation to third party's interests.

• 무역상무연구
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• 제24권
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• pp.25-49
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• 2004

English contract law has traditionally taken the view that it is not the duty of the parties to a contract to give information voluntarily to each other. In English law, one of the principal distinctions between insurance contract law and general contract law is the existence of the duty of disclosure in insurance law. This article is, therefore, designed to analyse the scope or extent of the duty of disclosure and the remedy for breach of the duty in English marine insurance law. The main purpose of this article is also to seek the alternative remedy for the breach. The results of analysis are as following : First, the scope of the duty of disclosure is closely related to the test of materiality and the concept of a hypothetical prudent insurer. The assured is required to disclose only material circumstances subject to MIA 1906, s. 18(1). The test of materiality, which had caused a great deal of debate in English courts over 30 years, was finally settled by the House of Lords in Pan Atlantic and the House of Lords rejected the 'decisive influence' test and the 'increased risk' test, and the decision of the House of Lords is thought to accept the 'mere influence' test in subsequent case by the Court of Appeal. Secondly, an actual insurer is, in order to avoid contract, required to provide proof that he is induced to enter into the contract by reason of the non-disclosure of the assured. But this subjective test of actual inducement is somewhat meaningless in sense that English court takes the test of materiality as a starting point and assumes the presumption of inducement even in case of no clear proof on the inducement. Finally, MIA 1906, s. 18 provides expressly for the remedy of avoidance of the contract for breach of the duty of disclosure. This means rescission or retrospective avoidance of the entire contract, and the remedy is based upon a fairly crude 'all-or-nothing' approach. The remedy of rescission is too draconian from the point of view of the assured, because he can be deprived of all cover despite he is innocent perfectly. An inadvertent breach from an innocent mistake is as fatal as wilful concealment. What is, therefore, needed in English marine insurance law with respect to remedy for the breach is to introduce a more sophisticated or proportionate remedy ascertaining degrees of fault.

• 무역학회지
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• 제42권6호
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• pp.1-25
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• 2017

본 연구는 하자물품에 대한 매도인의 책임에 관한 CISG와 CESL상 매도인의 계약에 적합한 물품인도의무에 관한 비교연구라는 연구목적 하에 다음과 같은 주요 연구내용을 담고 있다. 첫째, CISG 및 CESL상 하자담보책임 관련 규정중 매도인의 계약에 적합한 물품인도의무의 내용을 구체적 내용의 검토와 더불어 그간 논의의 전개과정을 살펴본다. 둘째, 각 규범의 관련 규정과 상호 비교하여 살펴봄으로 근대입법의 흐름을 진단하여 무역업계의 하자담보책임 관련 이해의 차이를 좁히고 실무적 대응방안의 기초를 마련한다. 셋째, 비교연구를 통하여 상호 차이점에 대한 해석론적 내지 개정 의견을 제시하도록 한다. 이러한 비교연구의 시도는 특히 거래당사자로서 상인과 소비자의 각자 이익의 관점에서 그들의 계약상 합리적 기대를 올바로 반영하고 있는지를 평가하고자 한다.

• 정보관리연구
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• 제37권4호
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• pp.141-159
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• 2006

논문에서는 지식재산권 문제로 특허심판소송으로 기업인들이 많은 피해를 입은 경험사례를 바탕으로 한 실태분석 결과를 나타냈다. 우리나라 기업에서 느끼는 특허소송에 대한 특허권침해와 관련하여 특허권자 및 침해자 입장에서 취해야 할 대응전략을 제시했다. 중소기업에서 특허권을 침해하는 경우, 특허권을 남용하는 경우, 영업비밀을 누설하는 경우, 직무발명을 누설하는 경우 등에 관하여 특허권자와 침해자 입장에 대한 대응책을 제시하였다.