• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.29
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• pp.89-119
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• 2006

The almost studies that is related to an e-Trade and an e-Marketplace only have been focused on the diffusion and acceptance since the innovation was adopted in markets. The existing studies failed to notice the resistance of innovation in the course of accepting innovation. The resistance of innovation, however, is not the contrary concept of acceptance, it is should be understood as a construct which can explain the course of the diffusion and acceptance. This study will be analysed as follows: First, nevertheless the resistance of users is important, it couldn't be presented systematically through acceptance of innovation, accordingly the concept of resistance of innovation will derive concept from review of literature researched on prior researches. Second, the factors which can be affected to the resistance of innovation of the main trade firms which use the e-Marketplace will draw. Third, we identify some of determinants that can affect to resistance of user by empirical study, also we investigate how participation can be affected by using a contingency variable. The independent variables used through researched review are the characteristic factors of trade e-Marketplace which was consisted of relative advantage, suitability and complexity, the characteristic factors of trade firms which was consisted of propensity of innovation and attitude, and the characteristic of service quality which was consisted of reliability and reaction. This research also examines the association between independent variables and the resistance of user(dependent variable) by using a variable on participation of user(moderator variable). The sample surveys for this study have been used 109, this study was analysed by the SPSS 12.0 of statistical tool. According to the proved hypothesis there are three important factors which affected the resistance of user. One factor was the relative advantage and complexity from the point of view on the trade firms characteristics of e-marketplace, another factor was the propensity of innovation from the point of view on the trade firms factors, the third factor was the reliance from the point of view on the service quality factors. The results also provided that relative advantage and suitability among the characteristics of e-Marketplace and the reliability among the service quality characteristics have moderated in the moderated regression which was tested the association independent variables and dependent variables while participation of user was using for contingency variable.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.227-252
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• 1999

In this Article the writer introduces the origin and preparation of "the UNIDROIT Principles of International Commercial Contracts". In May 1994 the Governing Council of the UNIDROIT gave its formal imprimatur to the UNIDROIT Principles and recommended their widest possible distribution in practice. After brief discussion of the establishment procedure of the UNIDROIT Principles the writer discusses the legal nature of the Principles as an international restatement of contract law. The UNIDROIT Principles has more flexibility than international convention. But it has deficit in the sense of legal stability. Also the scope of application of the Principles was discussed. It can be applied only to the international commercial contracts. It includes two basic principles in it's application, i. e. "commercial contracts" and "international contracts". For the rest of the Article the writer concentrates on the contents of the Principles and the basic ideas underlying the Principles from the point of view of the comparision between the UNIDROIT Principles and "the UN Convention on the International Sale of Goods" (CISG). The UNIDROIT Principles are only restatements and the CISG is an international convention. The application of the CISG is obligatory due to its nature as an international convention. In the contrary the possibility of the application of the UNIDROIT Principles is more flexible. The UNIDROIT Principles is a more comprehensive instrument than CISG. Therefore it can be applied to all kinds of international commercial contracts. In the contrary the CISG can be applied only to international sales contract. Since CISG only deals with contracts for the sale of goods, and the scope of the UNIDROIT Principles is much wider, no overlap can occur where contracts other than sales contracts are concerned. Rather the UNIDROIT Principles can supplement the CISG and the CISG also can be criteria in interpreting the UNIDROIT Principles. As the conclusion the writer summarizes the meanings of the UNIDROIT Principles and presupposed the futur perspectives of the Principles.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.425-457
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• 2004

This study is to approach e-Trade issues and how to settle the dispute for e-Trade according to on-line Alternative Dispute Resolution (ADR) process. Most on-line systems operate on a limited access basis. The increasing use of the internet to do business brings to light at least important concerns to persons who engage in commerce on-line, or e-Trade. There is some concern about the limits of current internet technology to guarantee the security of e-Trade. The new technology has transformed society and is defining new years of doing business. This revolution in technology has even changed the nature of many of the goods and services that are the subjects of e-Trade. There is also concern about the limits of the legal framework to guarantee the enforcement of e-Trade. A significant issue is how the law should be adapted to reflect business practices regarding such cyberspace agreements as Web site click-on agreements, e-data interchange, and on-line sales. The principal benefits of on-line ADR should typically be faster and less expensive than traditional conciliation arbitration. The on-line ADR system has the several significances, decreasing inappropriate cost as time and burden of ADR, providing an approachable measure of relief and more efficient tool for the settle of dispute. Therefore, on-line ADR could be used as an adjunct resolution process in large class actions where each single claim is small, but varies somewhat, thus requiring some individual fact determination.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.38
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• pp.265-302
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• 2008

This paper intends to analyse some legal issues on "Zeroing" which is based on the article 2.4.2 under the WTO Anti-dumping Agreement. "Zeroing" stands for a specific methodology in calculating a general dumping margin for a product in question under which negative individual dumping margins are treated as zero (thus "zeroed") before aggregating all individual dumping margins. The article 2.4.2 of the Anti-dumping Agreement regulates three types of calculating methodology on dumping margin as first symmetrical method(average-to-average: A-A), second symmetrical method(individual-to-individual: I-I) and asymmetrical method(average-to-individual: A-I). However, this article does not have any provisions about the "Zeroing" practice. In their anti-dumping practices, the EC and the United-States calculated dumping margin based on the "Zeroing", but this methodology has been disputed in the Dispute Settlement Body(DSB) of the WTO. This paper analysed their legal problems with some WTO cases in particular concerning EC-Bed Linen, U.S.-Softwood Lumber Zeroing, U.S.-Zeroing(EC) and U.S.-Sunset Review(Japan) cases. On the basis of theses analysis, we can therefore ask some questions as follows; To begin with, although the article 2.4.2 of the WTO Anti-dumping Agreement does not clearly refer to the "Zeroing", how do some developing countries, as the U.S.A and the E.U. calculate dumping margin as the "Zeroing"? Secondly, what is the relationship between the symmetrical method and asymmetrical method to the dumping margin? And if we adopt the zeroing method, what is the different rate to anti-dumping margin? Thirdly, although the Panel decided that the zeroing methodology of dumping margin used by th U.S.A in administrative review between the U.S.A and the E.U, why does the Appellate Body made the decision that the american methodology is incompatible with the WTO Anti-dumping Agreement? Lastly, what will be affected the upper decision taken by the Appellate Body to the DDA negotiation of anti-dumping matters? Even though the WTO Appellate made a decision that the zeroing method is incompatible with the principles of the WTO law, this methodology contains a lot of problems. Some members of the WTO as the U.S.A and the E.U did not officially declare this methodology to abandon, and the debate concerned is arguing. Therefore this paper tried to present the adequate solution in order to promote the zeroing methodology in the international anti-dumping system and practices.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.16
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• pp.7-34
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• 2001

This Study analyzes the fact that whether or not, the applicant, by failing to object promptly to the facial discrepancies of the presented documents and to return those documents to the issuing bank, has waived his right to sue for breach of the Application agreement based on the recent Korea-US Case law. Some commentators claim that an applicant has a duty to notify the issuing bank within a reasonable time after receiving the documents that they do not comply with the letter of credit requirements and to return those documents to the issuing bank, and also suggest that a failure to do so result in a waiver of discrepancies that operates as a matter of law. But such decisions make little sense in letter of credit transaction. Unless otherwise agreed, Applicant agreement does not require that the applicant notify the issuing bank of any facial discrepancies of the documents or return those documents. Moreover there is no support in the body of law, i.e., UCP 500 or the Revised UCC Article 5, for an automatic waiver or preclusion arising from the applicant's failure to object promptly. In addition, beyond the lack of authority to support an automatic waiver arising from the applicant's failure to object and return the documents, in a letter of credit transaction the issuing bank is the only party charged with the duty of scrutinizing documents. Therefore, if there are discrepancies, it is the bank that should have to seek an express waiver from the applicant ; the issuing bank should not avoid responsibility for failing to notice discrepancies because the applicant was slow to scrutinize the documents closely or because the applicant failed to inform the issuing bank of such discrepancies. Requiring that applicants inspect documents independently defeats the purpose of retaining the issuing bank, erodes the bank's responsibility to perform its role diligently, and may result in the bank avoiding liability despite negligent payment. If the bank wants to require an applicant to report discrepancies promptly, he may include a provision in the Application agreement limiting the time limit within which the applicant must give notice of facial discrepancies and return the documents. This approach will ensure the continued wide-spread use of documentary credit as a reliable payment mechanism.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.23
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• pp.3-38
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• 2004

On-line game business has emerged as the most lucrative entertainment industry, with over 4 million players in China, with more than 45% of the market dominated by Korean on-line games. While the interactive entertainment market continues to expand, with many new Korean on-line game publishers entering the market, relatively little is known about which factors influence online game players' behavioral intentions (i.e., intention to play, brand-identity, word of mouth, flow, etc.) in this area. It appears that in this extremely attractive and growing services segment, academics, as well as practitioners, would benefit from investigating the relationships among the players' intention to play, social norms, word of mouth, flow, and the impacts of several other key game-related constructs. A conceptual framework is proposed and a simultaneous equation model is developed. This paper develops the exploratory LISREL model for identifying the factors affecting the players' intention to play for on-line games. Based on data collected from on-line questionnaire survey in China, the validity of the model has been tested and interesting conclusions have been developed concerning the relationships between the game-related constructs. It is hoped that this result might provide the useful guidelines for developing the successful on-line game contents. With better understanding of the players' behavioral intentions, Korean on-line game developers should be able to penetrate the China market with sustainable advantage over their competition.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.151-192
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• 2000

This study has been focused on the revisions and characteristics of the 7 non-maritime trade terms(EXW, FCA, CPT, CIP, DAF, DDU and DDP) in Incoterms 2000. Main characteristics are as follows: First, the use of different expressions intended to convey the same meaning has been avoided and the same expressions as appear CISG have been used. Second, the content of preamble in each trade terms has been shortened and definitedly. Third, if the parties are going to use variants of trade terms in Incotrems 2000, the meanings should be made clear by adding explicit wording in the contract of sale. Main revisions of the 7 trade terms are as belows: First, Incoterms 2000 has emphasized that in EXW, the seller delivers when he places the goods at the disposal of the buyer at the seller's premises or another named place(i.e. works, factory, warehouse, etc.) not cleared for export and not loaded on any collecting vehicle. Second, in FCA, delivery is completed; a) If delivery occurs at the seller's premises, the seller is responsible for loading. b) If delivery occurs at any other place, the seller is not responsible for unloading. Third, in CPT and CIP, all costs and charges relating to the goods whilst in transit until their arrival at the agreed place of destination, unloading costs and all duties, taxes and other charges as well as the costs of carrying out customs formalities payable upon import of the goods and for their transit through any country are linked with the content under the contract of carriage. Fourth, Incoterms 2000 has emphasized that in DAF, the seller delivers when the goods are placed at the disposal of the buyer on the arriving means of transport not unloaded, cleared for export, but not cleared for import at the named point and place at the frontier, but before the customs border of the adjoining country. Fifth, Incoterms 2000 has emphasized that in DDU, the seller delivers the goods to the buyer, not cleared for import(in DDP, cleared for import), and not unloaded from any arriving means of transport at the named place of destination. Sixth, if the parties do not intend to deliver the goods across the ship's rail, FCA, CPT and CIP instead of FOB, CFR and CIF should be used.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.40
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• pp.3-30
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• 2008

This article attempts to describe and analyze the rules on the buyer's remedies for lack of conformity under PELS. It shows that such remedies under the PELS operate in a two-tier remedial scheme which is alien to both domestic and international legal systems. That is, repair and replacement take the position of primary remedy, whereas termination, price reduction and damages are secondary remedies which are available only where the primary remedies cannot be invoked. Notwithstanding its superiority, the PELS have some drawbacks in several aspects. First, the PELS seems to place its focus on the factor of cost except the other factors, for instance, the significance of the lack of conformity, when one decides whether the first tier remedies cause the seller unreasonable effort or expense. It is argued that the factors can be considered by referring to art. 1:302 PECL. Second, the PELS does not expressively provide any exclusion of the seller's right to choose between repair or replacement on the basis of unreasonable uncertainty in reimbursing the expenses advanced by the buyer. It argues that if there is such uncertainty, it should be regarded as causing the buyer an unreasonable inconvenience under art. 4:204(1). Third, the PELS does not seem to properly reflect the consumer's interests in that most consumers prefer to have the absolute right of termination as against the commercial sellers who have a relatively stronger bargaining position. The reasons for that is that there is a big hurdle, i.e., a hierarchy of remedies, to be overcome by the consumer to battle with the commercial seller, and that unavoidable vagueness in defining a minor lack of conformity has been often used against the consumer, but in favour of the commercial seller with a strong bargaining position.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.18
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• pp.159-188
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• 2002

International joint ventures are usually formed and managed by domestic companies and foreign investors for the common objectives. They offer an opportunity for each partner to benefit significantly from the comparative advantages of the other. Local partners bring knowledge of the domestic market; familiarity with government bureaucracies and regulations; understanding of local labor markets; and existing manufacturing facilities. Foreign partners can offer advanced process and product technologies, management know-how, and access to export markets. In Korea, joint ventures have been encouraged to usher in foreign investors with foreign currency capital badly needed during the IMF financial crisis. In the meantime, Korean laws and regulations with respect to joint ventures have been largely overhauled to promote foreign direct investment (FDI) both inbound and outbound. They include four types of FDI, i.e., acquisition of foreign stocks, provision of long-term loans, participation in joint operations like resources development, and establishment of foreign offices. From the legal point of view, the formal joint venture agreement must be an offspring of a series of tough negotiations between domestic and foreign partners. They usually stress the long-term relationship with the good will and dedication to each other, and restrict the free transfer of stocks. Both partners are earnestly interested in the ownership and management of the joint venture. So they keep a close eye on the articles of incorporation, changes of business environment, conflict resolution methods, transparency of accounting and other financial matters. When a multinational corporation (MNC) is involved in the joint venture, conflicts over management strategies, marketing and other issues take place more often than not between the MNC and local partners. We have to pay attention to joint ventures, particularly, in China and North Korea. As witnessed in other transition economies, China is eagerly bringing in foreign direct investments for the development of nation's economy. China encourages foreign investors to establish ordinary joint ventures, contractual joint ventures, solely invested foreign capital companies and jointly operated development companies with local partners. In North Korea, however, joint ventures have a different meaning like contractual joint ventures in China, in which North Korean partners have an initiative in the management. Rather, jointly operated companies or simply processing-for-wage companies are recommended in view of the unpredictable legal infrastructure in North Korea.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.23
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• pp.155-219
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• 2004

This paper focuses on two recent legislative developments in electronic commerce: the "Uniform Computer Information Transactions Act" ("UCITA") of USA and the "preliminary draft convention on the use of data message in [international trade] [the context of international contracts]" ("preliminary draft Convention") of UNCITRAL. UCITA provides rules contracts for computer information transactions. UCITA supplies modified contract formation rules adapted to permit and to facilitate electronic contracting. UCITA also adjusts commonly recognized warranties as appropriate for computer information transactions; for example, to recognize the international context in connection with protection against infringement and misappropriation, and First Amendment considerations involved with informational content. Furthermore, UCITA adapts traditional rules as to what is acceptable performance to the context of computer information transactions, including providing rules for the protection of the parties concerning the electronic regulation of performance to clarify that the appropriate general rule is one of material breach with respect to cancellation (rather than so-called perfect tender). UCITA also supplies guidance in the case of certain specialized types of contracts, e.g., access contracts and for termination of contracts. While for the most part carrying over the familiar rules of Article 2 concerning breach when appropriate in the context of the tangible medium on which the information is fixed, but also adapting common law rules and rules from Article 2 on waiver, cure, assurance and anticipatory breach to the context of computer information transactions, UCITA provides a remedy structure somewhat modeled on that of Article 2 but adapted in significant respects to the different context of a computer information transaction. For example, UCITA contains very important limitations on the generally recognized common law right of self-help as applicable in the electronic context. The UNCITRAL's preliminary draft Convention applies to the use of data messages in connection with an existing or contemplated contract between parties whose places of business are in different States. Nothing in the Convention affects the application of any rule of law that may require the parties to disclose their identities, places of business or other information, or relieves a party from the legal consequences of making inaccurate or false statements in that regard. Likewise, nothing in the Convention requires a contract or any other communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract to be made or evidenced in any particular form. Under the Convention, a communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract, including an offer and the acceptance of an offer, is conveyed by means of data messages. Also, the Convention provides for use of automated information systems for contract formation: a contract formed by the interaction of an automated information system and a person, or by the interaction of automated information systems, shall not be denied on the sole ground that no person reviewed each of the individual actions carried out by such systems or the resulting agreement. Further, the Convention provides that, unless otherwise agreed by the parties, a contract concluded by a person that accesses an automated information system of another party has no legal effect and is not enforceable if the person made an error in a data message and (a) the automated information system did not provide the person with an opportunity to prevent or correct the error; (b) the person notifies the other party of the error as soon as practicable when the person making the error learns of it and indicates that he or she made an error in the data message; (c) The person takes reasonable steps, including steps that conform to the other party's instructions, to return the goods or services received, if any, as a result of the error or, if instructed to do so, to destroy such goods or services.