• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.38
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• pp.47-68
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• 2008

I have observed the validity of open-offer from a point of European contract law in comparison with International Trade Law in this paper. Generally we know that an offer is an expression of willingness bo be bound to the contract. In English law if there are no intention it will be considered such as circulation of price lists or catalogues. As for French law these activities could be considered as an offer. However German law is closer to English law as to an offer. A contract which does not ascertained price is open-price terms and it can be applied not only for general commercial contracts but also for franchise or for distributorship agreements especially in Europe. When open-price terms applied to reserve a exclusive right to the contract the validity of contract can be a serious matter between principals. In English law an offer must be sufficiently complete to be capable of acceptaqnce. English law does not require that price terms should be indicated on offer. English law allow a open-price terms in the contract. In French law a contract will be valid in the absense of a price which is either determined or objectively determinable. A price by the market price of similar products is not enough to be valid offer. It should be recognized and accepted objectively by third parties. French law require that price terms should be indicated on offer. Open-price terms are not enough to be an effective offer. However German law shows more flexible than French law. In German law if the price is not fixed in the contract there are four ways to determine it. The seller may determine the price by the time of deliver. By reason of thess backgrounds I have made comparison with European contract law and International trade law on the validity of open-price offer in this paper. It seems that we are not familiar with open-price terms although franchise contract or special terms of contract have been increased in these days. So I hope this paper will be helpful to show a new point of view.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.67-85
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• 2009

In English Law it seems that it is essential to apply the principle of equilibrium in the contract, however, it does not seemed to apply as the general rule of the principle of contract. Especially it seems that English Court didn't pay attention to the principle of equilibrium in 18th century. If one of the party do not appeal the equilibrium of the contract, it does not make any difference even today. However the Court may cancel or withdraw the construction of contract between the parties where the principle of equilibrium is damaged by fundamental problems like just-price. In French Law it seems that they have more wide definition of the principle of equilibrium. The French Court may consider that the application of good faith is the performance of condition of the contract between the parties and has no power to relieve of one party of his expressed obligations or warranty. In German Law, it seems that the principle of good faith is fundamental to take into account interest of the parties. They may agree to supply information or not to interfere with a commercial agent regarding performance and maintenance of the contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.37
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• pp.3-33
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• 2008

This study primarily concerns the seller's duty to deliver the goods in conformity with the contract under the United Nations Convention on International Sale of Goods(1980) in comparison with the Draft Principles of European Sales Law. It describes and analyzes the provisions of the CISG as to the seller's duty, focusing on main controversial issues among scholars in their application. It also attempts to compare the rules of the CISG with those of the Draft PESL and to evaluate them in light of the discipline of comparative law. This is for the purpose of facilitating the systematic development and reform of one jurisdiction by any solution from the other jurisdiction found by the comparative study. In addition, this study provides legal and practical advice to the contracting parties when they intends to insert the CISG or the Draft PESL in their contract as a governing law. The comparative study particularly focuses on the following aspects; first, requirements for conformity with the contract which deals with the concept of conformity with the contract, contractual requirements agreed between contractual parties, and implied requirements otherwise not agreed between contractual parties, second, the time when the goods must be in conformity with the contract, third, exclusions of the seller's duty to deliver the goods in conformity with the contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.127-151
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• 2016

UNIDROIT Principles of International Commercial Contracts(PICC) was published in 1994. PICC has been functioned as a guideline of international commercial contracts, an applicable law to govern a contract by the agreement of the parties to a contract, general principles of law and lex mercatoria. In addition, PICC has a role of interpreting or supplementing international uniform law instruments as well as domestic laws, and also has served as a model for national and international legislations. PICC has been accepted as a authoritative source of knowledge of international trade usages of international commercial contracts to the arbitral tribunal rather than domestic court because it excluded the characteristics of hard law at the drafting stage. This article dealt with the rule on gross disparity of validity which fall outside the scope of UN Convention on Contract for the International Sale of Goods(CISG), which has obtained a leading legal position of uniform law in international sales of good. In other words, PICC suggests a series of meaningful solutions to the issue of gross disparity of contract which is the most complicated among legal disputes occurring during the process of conclusion of contact and also extremely different and diverse between legal systems. This article covered the issue of gross disparity of contract at the conclusion of contact and suggested the legal basis of several rules related to the gross disparity by analysing gross disparity rule of PICC. Furthermore, this article suggested legal check points or implication as well as interpretation and evaluation on doctrine of laesio enormis and undue influence or unconscionability. This article also dealt with a comparative analysis with Principles of European Contract Law(PECL) and Common European Sales Law(CESL) which have important legal positions in the area of international commercial contract as well as in terms of close relationship to PICC by linking with recent court or arbitral tribunal rulings.

• The Journal of Fisheries Business Administration
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• v.43 no.1
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• pp.63-74
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• 2012

The Korean Conflict of Laws Act recently incorporated much of the European Union's recent revision in "EC Convention on the Law Applicable to Contractual Obligations (Rome 1980)"(hereinafter Rome Convention). With the revision of Rome Convention applied to contractual obligations,"Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)"(hereinafter Rome I) has taken effect on December 2009. Before the effectivation of Rome I, "Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)"(hereinafter Rome II) has come into effect on January 2009. This means the revision of certain rules and its practical implications need an in-depth study on governing law rules under Rome I which provides newly effected governing laws applicable to contractual obligations. Moreover, uniform choice of law rules on non-contractual obligations needs to focus especially on marine insurance contract. Where policy assignment and subrogation causes, how to decide the governing law which will be applied to the insurer as a third party? This article attempts to analyze emerging legal issues in legal regimes determining choice of law, especially those in international marine insurance contracts. This will help Korean practitioners to be dialed in legal affairs under English Law as the governing law in their contracts.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.67
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• pp.23-47
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• 2015

European Commission drafted and proposed the Common European Sales Law(CESL) to the European Parliament for the realization of a uniform set of international private law rules within the EU internal market. Since its purpose is for free international commercial activities for the sale of goods, for the supply of digital content and for related services, it was proposed to enable EU Member States to adopt or supplement as their substantive law according to their options. This study is relate to the legal bases on termination of a contract under CESL, they are composed of three parts: damages and interest, restitution and prescription. Damages and interest are divided into damages, general provisions on interest on late payments, and late payment by traders. Damages are explained by dividing into right to damages, general measure of damages, foreseeability of loss, loss attributable to creditor, reduction of loss, substitute transaction, and current price. Restitution is described by dividing into restitution on revocation, payment for monetary value, payment for use and interest on money received, compensation for expenditure and equitable modification. Prescription is explained by dividing into general provisions, periods of prescription and their commencement and extension of periods of prescription. General provisions explain right subject to prescription into a right to enforce performance of an obligation and any right ancillary to such a right. Regarding period of prescription, the short one is two years and the long one is ten years. However, in the case of a right to damages for personal injuries, period of prescription for such right is thirty years. Regarding commencement, the short one begins to run from the time when the creditor has become, or could be expected to have become, aware of the facts as a result of which the right can be exercised, while the long one begins to run from the time when the debtor has to perform. However, in the case of a right to damages, the CESL clarifies that it begins to run from the time of the act which gives rise the right.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.275-305
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• 2009

Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of price, known as a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice were later introduced into England through the Continent. It is, therefore, quite exact that English and European marine insurance law have common roots. Nevertheless, significant divergences between English and European insurance systems occurred since the late 17th century, mainly due to different approaches adopted by English courts. The rule of warranty in English marine insurance was developed and clarified in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English law of marine insurance, and developed different approaches, especially in the field of warranty in marine insurance law. Since the age of Lord Mansfield, English marine insurance law has a unique rule on warranty. This article is, therefore, designed to analyse the overall rule of the rule of warranty in English marine insurance law. The result of analysis are as following. First, warranties are incorporated to serve a very significant function in the law of insurance, that is, confining or determining the scope of the cover agreed by the insurer. From the insurer's point of view, such the function of warranties is crucial, because his liability, agreed on the contract of insurance, largely depend on in, and the warranties, incorporated in the contract play an essential role in assessing the risk. If the warranty is breached, the risk initially agreed is altered and that serves the reason why the insurer is allowed to discharge automatically further liability from the date of breach. Secondly, the term 'warranty' is used to describe a term of the contract in general and insurance contract law, but the breach of which affords different remedies between general contract law and insurance contract law. Thirdly, a express warranty may be in any form of words from which the intention to warrant is to be inferred. An express warranty must be included in, or written upon, the policy, or must be contained in some document incorporated by reference into the policy. It does not matter how this is done. Fourthly, a warranty is a condition precedent to the insurer's liability on the contract, and, therefore, once broken, the insurer automatically ceases to be liable. If the breach pre-dates the attachment of risk, the insurer will never put on risk, whereas if the breach occurs after inception of risk, the insurer remains liable for any losses within the scope of the policy, but has no liability for any subsequent losses. Finally, the requirements on the warranty must be determined in according to the rule of strict construction. As results, it is irrelevant: the reason that a certain warranty is introduced into the contract, whether the warranty is material to the insurer's decision to accept the contract, whether or not the warranty is irrelevant to the risk or a loss, the extent of compliance, that is, whether the requirements on the warranty is complied exactly or substantially, the unreasonableness or hardship of the rule of strict construction, and whether a breach of warranty has been remedied, and the warranty complied with, before loss.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.54
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• pp.3-44
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• 2012

Shipbuilding industry is one of the most influential ones in Korea. As shipbuilding industry is labor-intensive, it contributes to enhancing both local economy and national economy. Shipbuilding industry has been downsizing since the end of 2008 due to global financial crisis caused by America's sub-prime mortgage and aggravated by European countries' fiscal deficit. As a large fund is required for a single normal shipbuilding contract, fund raising is one of the most important elements in shipbuilding contract. Shipbuilding contract, requires refund guarantee in order for a buyer to reimburse the progressive payment paid to a builder. The disputes under shipbuilding contracts are mostly settled by arbitration rather than by law suit. English laws and English courts have been preferred for the choice of law as well as for the choice of forum. Due to depreciation of the ship value since the end of 2008, a number of buyers are trying to cancel the contract by raising unjust claim under the contract. Once disputes occurs regarding shipbuilding contract, a large amount of loss is inevitable. In order to mitigate the disputes arising from the shipbuilding contract, careful caution is required in drafting a shipbuilding contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.44
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• pp.3-29
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• 2009

The PECL have been drawn up by an independent body of experts from each member state of the european union under a project supported by the european commission and many other organizations. Salient features of the general provisions of the PECL, freedom of contract and pecta sunk servanda, good faith and fair dealing, most of the PECL are non-mandatory. The CISG uses the term fundamental breach in various setting. The concept of fundamental breach is a milestone in its remedial provisions. Its most important role is that it constitutes the usual precondition for the contract to be avoided(Art. 49., Art. 51., Art. 64., Art. 72., Art. 73). In addition, where the goods do not conform with the contract, a fundamental breach can give rise to a requirement to deliver substitute goods. Furthermore, a fundamental breach of contract by the seller leaves the buyer with all of his remedies intact, despite the risk having passed to him(Art. 70). Basically, PECL, PICC generally follows CISG, it was similar to all the regulation's platform though the terms and content sometimes differ. For example regarding to the non-performance and remedies, in the case of non-performance, that is the PECL/PICC term analogous to breach of contract as used in the CISG. Furthermore the PECL/PICC used fundamental non-performance refered to in PECL Art. 8:103 ; PICC Art. 7.1.1. correspond generally to the concept of fundamental breach referred to in CISG Art. 25. The main significance of the fundamental non-performance, in any systems, is to empower the aggrieved party to terminate the contract. The need for uniformity and harmony in international commercial contracts can be expected to lead to growth of international commerce subject to the CISG, PICC, and PECL. It is hoped that the present editorial remarks will provide guidance to improve understanding between the contractual party of different countries in this respect and following key-words.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.1-36
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• 2016

Unlike continental European legal systems (civil law systems), specific performance in common law refers to an equitable remedy requiring exactly the performance that was specified in a contract. It usually granted only when money damages would be an inadequate remedy and the subject matter of the contract is unique. Thus, under common law specific performance was not a remedy, with the rights of a litigant being limited to the collection of damages. Consistent with the practice in civil law jurisdictions, United Nations Convention on Contracts for the International Sale of Goods (CISG) makes specific performance the normal remedy for breach of a contract for the sale of goods. Therefore, the buyer may require a breaching seller to deliver substitute goods or to make any reasonable repair. Likewise, the sellermay require the buyer to taker delivery of goods and pay for them. Despite this, Article 28 of the CISG restricts the availability of specific performance where it would be unavailable under the domestic law of the jurisdiction in which the court is located. Thus, the CISG's more liberal policy toward specific performance is restricted by common law. There are some legal issues in CISG's specific performance availability by Article 28. This paper analyzes these issues as interpreting Article 28 of CISG, by examining various theories of application to actions for specific performance and comparing CLOUT cases involving CISG Article 28.