• Title/Summary/Keyword: E-commerce Law

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E-Commerce in the Historical Approach to Usage and Practice of International Trade ("무역상무(貿易商務)에의 역사적(歷史的) 어프로치와 무역취인(貿易取引)의 전자화(電子化)")

  • Tsubaki, Koji
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.19
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    • pp.224-242
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    • 2003
  • The author believes that the main task of study in international trade usage and practice is the management of transactional risks involved in international sale of goods. They are foreign exchange risks, transportation risks, credit risk, risk of miscommunication, etc. In most cases, these risks are more serious and enormous than those involved in domestic sales. Historically, the merchant adventurers organized the voyage abroad, secured trade finance, and went around the ocean with their own or consigned cargo until around the $mid-19^{th}$ century. They did business faceto-face at the trade fair or the open port where they maintained the local offices, so-called "Trading House"(商館). Thererfore, the transactional risks might have been one-sided either with the seller or the buyer. The bottomry seemed a typical arrangement for risk sharing among the interested parties to the adventure. In this way, such organizational arrangements coped with or bore the transactional risks. With the advent of ocean liner services and wireless communication across the national border in the $19^{th}$ century, the business of merchant adventurers developed toward the clear division of labor; sales by mercantile agents, and ocean transportation by the steam ship companies. The international banking helped the process to be accelerated. Then, bills of lading backed up by the statute made it possible to conduct documentary sales with a foreign partner in different country. Thus, FOB terms including ocean freight and CIF terms emerged gradually as standard trade terms in which transactional risks were allocated through negotiation between the seller and the buyer located in different countries. Both of them did not have to go abroad with their cargo. Instead, documentation in compliance with the terms of the contract(plus an L/C in some cases) must by 'strictly' fulfilled. In other words, the set of contractual documents must be tendered in advance of the arrival of the goods at port of discharge. Trust or reliance is placed on such contractual paper documents. However, the container transport services introduced as international intermodal transport since the late 1960s frequently caused the earlier arrival of the goods at the destination before the presentation of the set of paper documents, which may take 5 to 10% of the amount of transaction. In addition, the size of the container vessel required the speedy transport documentation before sailing from the port of loading. In these circumstances, computerized processing of transport related documents became essential for inexpensive transaction cost and uninterrupted distribution of the goods. Such computerization does not stop at the phase of transportation but extends to cover the whole process of international trade, transforming the documentary sales into less-paper trade and further into paperless trade, i.e., EDI or E-Commerce. Now we face the other side of the coin, which is data security and paperless transfer of legal rights and obligations. Unfortunately, these issues are not effectively covered by a set of contracts only. Obviously, EDI or E-Commerce is based on the common business process and harmonized system of various data codes as well as the standard message formats. This essential feature of E-Commerce needs effective coordination of different divisions of business and tight control over credit arrangements in addition to the standard contract of sales. In a few word, information does not alway invite "trust". Credit flows from people, or close organizational tie-ups. It is our common understanding that, without well-orchestrated organizational arrangements made by leading companies, E-Commerce does not work well for paperless trade. With such arrangements well in place, participating E-business members do not need to seriously care for credit risk. Finally, it is also clear that E-International Commerce must be linked up with a set of government EDIs such as NACCS, Port EDI, JETRAS, etc, in Japan. Therefore, there is still a long way before us to go for E-Commerce in practice, not on the top of information manager's desk.

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Current Status and Issues in Digital Trade Agreements: Focusing on Cross-border Data Flows and Data Protection (디지털 통상의 국제규범화 현황과 쟁점: 국경 간 데이터 이동 및 데이터 보호를 중심으로)

  • Joo Hyoung Lee;Jeongmeen Suh;Jaeyoun Roh
    • Korea Trade Review
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    • v.46 no.3
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    • pp.99-117
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    • 2021
  • Korea's FTA e-commerce regulations are evolving into a standardized norm. However, "location of computing facilities", which was not covered by Korea's existing FTA, was newly established in Korea's first Mega FTA, RCEP. China, a member of RCEP, restricts data movement and requires data localization through its Cybersecurity law. These facts have led to start this study with interest in data-related regulations. It examined country-specific and regulatory characteristics in the process of forming digital trade norms, using the TAPED established by Burri et al. (2020). It also analyzed the current status of introducing norms related to 'data flow', 'data localization' and 'data protection' of the EU, USA and China, which are leading the formation of e-commerce trade norms. Finally, the legal review was conducted to compare the exact meaning of the wording expressed in each agreement for the six recently enacted Mega FTAs and Digital Economic Agreements. These findings are meaningful in that they provided implications for the effectiveness of RCEP and the direction of negotiations on Korea's digital trade norms.

A Empirical Study on the Ways of Searching for Foreign Buyers and the Performances Improvement of Exporting Companies in China - Focused on the Exporting Companies in the Pearl River Delta Economic Zone -

  • Gao, Yue;Bae, Jung Han
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.56
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    • pp.29-54
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    • 2012
  • As market is more and more mature, the survival environment of exporting companies is getting severer, which throws exporting companies into great pressures of the process of growth and development. For most businessmen, the hardest part of starting a foreign business is to find buyers or to get customers, which is more critical for small and medium-size foreign enterprises. The fast changes of internal and external trade and market circumstances, together with the advent of e-commerce, led to the diversified of the way to find foreign buyers for exporting companies. But the performance differs in using different ways of finding foreign buyers. Therefore, this study examines the status of the methods of finding foreign buyers and performance of exporting companies in China. Based on the investigation of the ways of finding foreign buyers, this study tries to find out the most efficient ways of finding foreign buyers for them. And this study tries to propose some practical suggestions for the exporting companies based on the analysis that will help them to improve companies' performances.

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Breach of international sales contract and Exemption possibility due to customs clearance impediment (통관차질(通關蹉跌)로 인한 무역계약(貿易契約) 위반(違反)과 면책(免責)의 가능성(可能性))

  • Chung, Jae-Wan
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.20
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    • pp.241-265
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    • 2003
  • The purpose of this paper is to examine the customs clearance impediment and trade parties breaches of international sales contract by the impediment. Customs clearance impediment arises when (a)clearance is not permitted, (b) importation goods are confiscated, (c)clearance delay without expectation, and (d) additional excessive trade cost caused in the process of clearance. This kind of clearance impediment may cause the breach of international sales contract. And it depends on its contents of contract and causal sequence i.e. cause and effect respectively in determining who is liable for it. If one party exemptions by Article 79 CISG, next three elements must be proved. (a)The failure was due to an impediment beyond his control; (b)the impediment was reasonably unforeseeable at the time of the conclusion of the contract, and (c)the impediment was reasonably impossible to overcome. But the customs clearance impediment is not easy to prove these three elements, the party who is responsible the customs clearance may not be exemptions by Article 79 CISG. And, according to review, it is concluded that the buyer, rather than seller, is liable for the damage which is caused in the process of clearance. It is also confirmed that the seller is sometimes liable for depending on clauses of contracts i.e. quality conditions.

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A Study on the Global Transmission Strategies of e-Trade Documents using Non-Negotiable Sea Waybill (해상화물운송장을 활용한 전자무역문서의 글로벌 유통 전략에 관한 연구)

  • RYU, Seung-Yeal
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.68
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    • pp.1-21
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    • 2015
  • The purpose of this study is to propose a new mechanism for the global transmission of electronic trade documents and to promote them using it. Trade settlement methods are changed from L/C bases to non-L/C bases and in particular, the telegraphic transfer is dramatically increased since mid 1990. But the status of transmission of electronic trade documents still rely on the letter of credit and bill of lading. So it need to change the process of transmission of electronic trade documents utilizing non-negotiable sea waybill instead of bill of lading. In this study, I pointed out two problems as obstacle factors in global transmission of electronic trade documents. First is the system connection problem between domestic and foreign banks and second is the electronic right transfer problem in the bill of lading. Electronic bill of lading has already been made, but are not used and e-Nego has also not been activated under the above issues. Therefore, it should be solved previously the above problems for the global transmission of electronic trade documents under the letters of credit. However, in transactions of transfer, it does not need the inter-bank connection and also does not occur the electronic right transfer problem of bill of lading if using the non-negotiable seaway bill instead of bill of lading. In this paper, I recommend the global transmission strategies of e-trade documents using the non-negotiable sea waybill in transactions of transfer. Hopefully, I expect the activation of global transmission of e-trade documents through the utilization of electronic non-negotiable sea waybill as suggested by this study.

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A Study on the Basic Requirements and Operation Plan of E-trade Platform (전자무역 플랫폼의 기본요건과 운영방안에 관한 연구)

  • Lee, Sang-Jin
    • International Commerce and Information Review
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    • v.6 no.2
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    • pp.107-127
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    • 2004
  • The rapid development of internet information technology has increased interest in e-Trade these days, but it is not activated greatly up to now. In order to promote e-Trade, it is essential to construct cooperative process such as connecting systems among trade related parties. Building e-Trade platform which is based on the infrastructure of the past trade automatic system is key point of promoting e-Trade. To do this, a study on the basic concept and specific components of e-Trade platform is needed absolutely. At this point of view, after this paper has examined domestic and foreign studies on the fundamental technologies about electronic commerce, it drew several key technologies that could be applied to e-Trade considering the current IT trend. Then it evaluates these technologies according to Technology Reference Model(TRM) of the National Computerization Agency. This will help us to show the operation strategy as well as the concept of future e-Trade platform and its composition. On the basis of the theoretical background, this paper classified NCA's technology model into 6 fields, which are application. data, platform, communication, security and management. Considering the key technologies, e-Trade platform has to be mutually connected and accept international standards such as XML. In the aspect of business side, trade relative agencies' business process as well as trading company's process has to be considered. Therefore, e-Trade platform can be classified into 3 parts which are service, infrastructure and connection. Infrastructure part is compared of circulating and managing system of electronic document, interface and service framework. Connecting service (application service) and additional service (application service) consist of service part. Connecting part is a linking mutual parts and can be divided into B2B service and B20 service. The organization operating this e-trade platform must have few responsibilities and requirements. It needs to positively accept existing infrastructure of trade automatic system and improving the system to complete e-trade platform. It also have to continuously develop new services and possess ability to operate the system for providing proper services to demanders. As a result, private sector that can play a role as TTP(Third Trust Party) is adequate for operating the system. In this case, revising law is necessary to support the responsibility and requirement of private sector.

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Customary Criteria on the Compliance Duty of Commercial Invoice in the Export Trade (수출거래(輸出去來)에서 상업송장(商業送狀)의 일치성의무(一致性義務)에 관한 관습적(慣習的) 해석기준(解釋基準))

  • Seo, Jung-Doo
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.25
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    • pp.99-119
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    • 2005
  • Recently, the export claims related to the compliance of the commercial invoice are increasing. This paper aims to review the basic requirements of the invoice, and two theories on the document compliance, i.e., the strict compliance and the substantial compliance, and to analyse the substantial compliance of the invoice through some recent cases under the UCP 500, ICC's opinions and the International Standard Banking Practice (ISBP). As regards the compliance of the invoice, a majority of the cases has held that it must comply strictly with the credit terms ("strict compliance rule"). However, a minority of courts and credit industry standards such as the UCP and ISBP published by ICC take a different approach, infusing the credit law notions such as equity, "substantial compliance rule", etc. The extent of the substantial compliance of the invoice is particularly explained in the above-mentioned invoice paragraphs of the ISBP and supported by a large number of ICC's official opinions. Especially, the parties and descriptions in the invoice must correspond with those in the credit, being not inconsistent with the other documents. Other issues related to invoices such as a tolerance of the quantity, the amount, and the number of originals or copies, etc. must comply with the credit terms substantially.

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A Study on the Interpretation and Application of Investment Treaties for Arbitral Award under International Investment Disputes (국제투자분쟁에서 중재판정시 투자조약의 해석과 적용에 관한 연구)

  • Hwang, Ji Hyeon;Park, Eun Ok
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.59
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    • pp.59-78
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    • 2013
  • The interpretation and application of investment treaties takes place mostly by ad hoc tribunals. Their composition varies from case to case. But in interpreting and applying investment treaties are bound to exist on a ground rule and coherent criteria. Given summarizing contents of this study, those are as follows. When interpreting investment treaties, (i) most tribunals is based on Article 31 and 32 of the VCLT, (ii) tribunals rely on previous decisions, (iii) tribunals resort to travaux pr$\acute{e}$paratoires, (iv) tribunals consider the interpretative statement. When applying investment treaties, (i) treaties apply only in relation to acts or events that occurred after their entry into force, (ii) tribunals have applied different inter-temporal rules to jurisdictional clauses and substantive provisions in treaties, (iii) the relevant date for purposes of jurisdiction is the date of the institution of proceedings, (iv) Under the ICSID convention, the host state and investor's nationality must be a party to the convention on the date the proceedings are instituted. This study is expected to possibly become guideline in the interpretation and application standards of investment treaties. So future disputes can be prevented and prepared in advance.

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A Study on the Improvement of Clearance Procedure for Electronic Trade (전자무역을 위한 통관업무의 개선에 관한 연구)

  • Lee, Bong-Soo
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.37
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    • pp.253-273
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    • 2008
  • The thesis examines the problems for improvement of clearance procedure and shows the various ways of overcoming them. Practical implications regarding the innovation of clearance procedure are as follows. First, the basis of information for customs clearance service should be built for unifying customs clearance information and imports and exports goods. Second, Customs Service need to keep on trying continuously that customs clearance system should be inter-convertible in the inside and outside of the country. Third, reliable law and execution system should be needed to revitalize customs clearance business and the government need to take measures for new system which is suitable for our own country. Finally, mutual cooperation administration system for customer in domestic and foreign country should be made for supplying high quality clearance service. As we have reviewed above contents, the customs clearance business meet the needs of innovation with new information technique to overcome lots of problems which come by when we execute simplification of customs clearance procedure and customs inspection administration fairly. As well as, when we review a few methods in the line of our customs system, we need strongly completion of related system and arrangements in trade business and similar fields. Hereafter we hope the limitation of this study should be overcome by the process of proper inspections through subsequent studies.

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Product Liability in the Shipbuilding in the "MSC Carla" case (MSC Carla 사례상 선박의 제조물책임)

  • Seo, Jeong Woo;Jo, Jong Joo
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.64
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    • pp.155-185
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    • 2014
  • Liability for the manufacture or supply of defective products can arise in two principle ways, in tort and in contract. English law has long regarded shipbuilding contract as agreement for the sale and purchase of goods. The consequence of which is that unless the Buyer and Builder agree otherwise, terms will automatically be implied into the contract between them as to the quality and performance of the completed vessel. The same principle applies to sub-contracts allied to the shipbuilding contract. On the other hand, one case decisions established that ".... a contract to build a ship, though a contract of sale of goods, has also some characteristics of a building contract", Recently the liability of a manufacturer in tort for physical damage i.e. personal injury and damage to property other than alleged to be defective is now well settled in most countries. Accordingly the Builder may face third party claims in tort more regularly than they have in the past, if the statutory implied terms have not been expressly excluded in contract. In such circumstances, it is necessary for the Builder to be prepared with counter measures to secure the stability of the vessel from its design development, building process, delivery and operation etc. The purpose of this paper is, from the case of "MSC Carla", to review product liability, jurisdiction and the initial date of extinctive prescription, then to suggest counter measures to the Builder.

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