• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.33
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• pp.221-243
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• 2007

A party to a contract is bound to perform its contractual duties. But outside events may make performance impossible, physically or legally. In such a situation a party may wish to plead "force majeure" as an excuse for failure to perform. The laws of most countries have provisions which dealt with force majeure. These provisions, however, vary from country to country and may not meet the parties' requirement in international contracts. Therefore, parties to international contracts are frequently in need of contract clauses on force majeure. There are many force majeure clauses in standard forms or individually negotiated. The ICC has drawn up provisions which aim at providing assistance for parties when they are making contracts. The force majeure clause grants relief from contractual sanctions and includes provisions for suspension and termination of contract. The purpose of this study is to examine "ICC Force Majeure Clause 2003" in the international sales contract. For this purpose, firstly this study deals with the major contents of the ICC Force Majeure Clause 1985 and 2003. Secondly this study considers the related provisions under CISG, PICC, PECL and the force majeure clause in Model International Sale Contract. Thirdly this study compares ICC Force Majeure Clause 2003 with the relative provisions under CISG, PICC, PECL and the force majeure clause in Model International Sale Contract. It should be noted that the parties often need to adapt the content of this clause so as to take account of the particular circumstances of the individual contract. This paper contributes to help the parties to a contract to draft the meaningful "Force Majeure Clause" containing more precise and elaborate provisions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.179-199
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• 2016

There is legal relation between both parties after contract formation. The parties are liable for performing each duties but a party is not liable for a failure to perform the duties if party proves that the failure was due to the force majeure. The forec majeure has different concepts and legal principles such as change circumstance, hardship, frustration, impediment and so on. Therefore, it need to analyze a historical background and their presence in various domestic legal systems. Although the CISG describes Art. 79 impediment instead of using the force majeure, the impediment has several interpretative limitation. The CISG pursue to harmonize divergent legal concepts and principles from various national laws and legal systems but the harmonization of legal systems make the impediment more confused. The article goes on to analyzes about limitation of the impediment and reviews to examine the force majeure and hardship in PICC. Thus both parties of international contract insert hardship clause in order to prevent the problem of judgment in a court or a court of arbitration under impediment of CISG.

• Journal of Korea Trade
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• v.26 no.7
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• pp.167-184
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• 2022

Purpose - This paper analyzes all possible issues that need to be considered in case disputes occur with regard to force majeure in international commercial contracts through the comparative study between English and Korean during COVID-19. Design/methodology - This paper belongs to the field of explanatory legal study, which aims to explain and test whether the choice of law is linked to the conditions that occur in the reality of judicial practice. The juridical approach involves studying and examining theories, concepts, legal doctrines, and legislation that are related to the problem. Findings - English law does not permit general economic impracticability to qualify as a valid force majeure event. If a party asserts that they were prevented from performing the contract, the courts will examine this strictly. Many commercial contracts in a broad range of sectors and industries are chosen by parties to be governed by English law. With COVID-19, there have been discussion of parties being released from performance as a result of force majeure. Meanwhile, under Korean law, a force majeure event should be unforeseeable and beyond a party's control. Since COVID-19 is a known event for future contracts, to avoid the risk that a similar situation in the future is deemed foreseeable and under a party's control, parties must ensure that such a risk is properly addressed in a contract. Therefore, it is necessary to have a new clause to cover a pandemic. Originality/value - In light of the ongoing unexpected and uncertain economic impacts COVID-19 is expected to bring to the world, it is anticipated that companies will experience an increased number of claims involving force majeure around the world, including English and Korea. As such, taking proactive steps to assess the applicable legal principles, including the concept of force majeure of contract, will help companies be prepared for the financial or legal implications of COVID-19. In this regard, it would be advisable for companies and businesses to take specific actions.

• Korea Trade Review
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• v.45 no.3
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• pp.21-33
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• 2020

This study aims to determine if the current COVID-19 event can be admitted as an excuse for non-performance in international trade transactions. In order to do so, this study selected case study method in the analysis. Firstly, the definitions of Force Majeure addressed in CISG, UCC, Chinese Law, and Korean Law were organized. Secondly, this study reviewed the avian influenza event in 2006 and the natural disaster event occurred in Guangdong, China, in 2017. In the study, three critical evaluation factors are suggested in order to be admitted as a Force Majeure event in international transactions as following: 1) possibility of foresight of the event, 2) possibility to overcome and avoid the event, and 3) the enterprise's countermeasures of the event. As an implication, this study organized the definitions of Force Majeure that were indicated in various kinds of Laws and suggested the basic framework to analyze the possibility of admittance as a Force Majeure event.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.18
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• pp.27-62
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• 2002

The international sale contract is the central contracts in export-import transactions. A good sale contract or set of general conditions of sale will cover all the principal elements of the transaction, so that uncertainties are avoided. The parties' respective duties as concern the payment mechanism, transport contract and insurance responsibilities, inter alia, will all be clearly detailed in the contract. The following key clauses should be included in international contracts of sale and general conditions of sale: ${\bullet}$ preamble ${\bullet}$ identification of parties ${\bullet}$ description of goods ${\bullet}$ price and payment conditions ${\bullet}$ delivery periods and conditions ${\bullet}$ inspection of the goods - obligations and limitations ${\bullet}$ quantity or quality variations in the products delivered ${\bullet}$ reservation of title and passing of property rights ${\bullet}$ transfer of risk - how accomplished ${\bullet}$ seller's warranties and buyer's complaints ${\bullet}$ assignment of rights ${\bullet}$ force majeure clause and hardship clause ${\bullet}$ requirement that amendments and modifications be in writing ${\bullet}$ choice of law ${\bullet}$ choice of dispute resolution mechanism Under most systems of law, a party can be excused from a failure to perform a contract obligation which is caused by the intervention of a totally unforeseeable event, such as the outbreak of war, or an act of God such as an earthquake or hurricane. Under the American commercial code (UCC) the standard for this relief is one of commercial impracticability. In contrast, many civil law jurisdictions apply the term force majeure to this problem. Under CISG, the standard is based on the concept of impediments to performance. Because of the differences between these standards, parties might be well advised to draft their own force majeure, hardship, or excusable delays clause. The ICC publication, "Force Majeure and Hardship" provides a sample force majeure clause which can be incorporated by reference, as well as a hardship clause which must be expressly integrated in the contract. In addition, the ICC Model provides a similar, somewhat more concise formulation of a force majeure clause. When the seller wishes to devise his own excusable delays clause, he will seek to anticipate in its provision such potential difficulties as those related to obtaining government authorisations, changes in customs duties or regulations, drastic fluctuations in labour, materials, energy, or transportation prices, etc.

• Journal of Korea Port Economic Association
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• v.21 no.3
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• pp.219-238
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• 2005

The purpose of this study is to analyze the concept, requirement and the effect of Force majeure and Hardship under the UNIDROIT Principles of International Commercial Contract. Under the UNIDROIT Principles Non-performance by a party is excused if that party proves that the non-performance was due to an impediment beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequence. There is hardship where the occurrence of events fundamentally alters the equilibrium of the contracts and the events occur or become known to the disadvantaged party after the conclusion of the contract; the events could not reasonably have been taken ito account by the disadvantaged party at the time of the conclusion of the contract; the events are beyond the control of the disadvantaged party; and the risk of the events was not assumed by the disadvantaged party.

• The Korean Journal of Air & Space Law and Policy
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• v.31 no.1
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• pp.37-62
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• 2016

Two controversial issues exist in interpretation of "Force Majeure" set forth in the Article 931 (4) of the Korean Commercial Code. Firstly, its scope of application is ambiguous. Secondly, there is a concern that the "immunity" under paragraph 1 and "Force Majeure" may overlap each other. "Force Majeure" refers an event resulted from either natural disaster or 3rd-party. Meanwhile, the latter implies relatively extensive and comprehensive meaning and its interpretation may vary depends on law enforcement. In general, the aircraft accident hardly results in damage or loss to the 3rd-party. Additionally, it is worth to review newly enacted clause and to define its applicability. When the 3rd party is suffered from damage or loss incurred by any external act, it is necessary to explicit the concept of the non-contractual liabilities with respect to 3rd party. From the perspective of protecting aviation industries, the commercial aviation operator may be entitled to immunity in respect of claim for damage incurred by the event of Force Majeure. However, this approach is directly opposite to the victim's benefit and protection by the law. Therefore, the priority of the legal protection should be considered. Although the interest of the commercial aviation operator is not negligible, the protection of the law should be favorable to the 3rd party. Otherwise, the innocent party has no right to claim for damage incurred by aviation accident. Another issue is about the possibility of overlapping of the provision set forth in the paragraph 1 and 4. The former states that the liabilities shall be exempted on account of either the unsettled political or economic situation but this clause is inconsistent with the interpretation on Force Majeure under the latter. As argued above, this may include any event resulted from either political or economic account by the external influence of the 3rd party, thus these two provisions are overlapped. Consequently, in order to develop ordinances and guidelines and to ensure an equal protection to both parties, above two issues must remain open for further discussions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.9
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• pp.45-82
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• 1996

• Korea Trade Review
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• v.43 no.3
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• pp.199-218
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• 2018

The force majeure in the international sale of goods has been widely used regarding liability and settlement of disputes in the event of breach of contract due to circumstances beyond the control of the parties. The purpose of this study is to examine the judgment criteria and cases concerning on force majeure in the application of FTA preferential tariffs. In order to achieve this purpose, this paper uses a literature review and case analysis on exceptional circumstances under the Korea·ASEAN FTA and the Korea·EU FTA. This study, this paper provides several implications for companies seeking preferential tariffs regarding the Korea·ASEAN FTA and the Korea·EU FTA. Korean companies are subject to the following: confirm the denial article of FTA preferential tariffs stipulated in the Korea·ASEAN FTA and the Korea·EU FTA, consider the judgment criteria on exceptional circumstances of customs authorities, confirm the extension criteria on the validity period of certificate of origin, confirm the reply criteria of verification result of the customs authorities of the exporting country, and confirm the violation of the principle of good faith for unrequested action on reply of verification result of customs authorities.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.44
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• pp.57-84
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• 2009

This Study attempts to compare and analyze on Principle of Change Circumstances under th CISG, PICC and PECL which are covered international commercial contract. In many international commercial contract, time is very important because delays in performance are sanctioned heavily by substantial penalty clauses. When change in circumstances affects contract performance, the contract will often not be suspended or terminated. Therefore, principle of change circumstances is being prepared of fluidity of contract environment and its effect in general. Taking into consideration the problems relating to the renegotiation or adaptation in the cases of radical change of circumstances where the CISG applies, it is suggested that the contracting parties should make clear their intentions, that is, whether they will provide for the possibility of renegotiation where the price of goods has been altered by inserting a hardship clause or for the possibility of mutual discharge from liability in the cases of economic impossibility or hardship by inserting a force majeure clause. Such provision will be desirable especially in situations where there is a long term contract, the price of goods sold tends to fluctuate in the international commerce, or where especially in contracts subjected to arbitration, the parties subject their contract to legal sources or principles of supranational character. Therefore, this study has shown that the hardship provisions in the CISG, PICC and PECL has similarities to each a validity defense and an excuse defense. it was provisions that CISG governs this issue in Article 79, PICC Article 6.2.1, 6.2.2, 6.2.3 and PECL Article 6.111.