• 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.

• 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.

• 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.

• Korea Trade Review
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• v.47 no.3
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• pp.129-139
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• 2022

Ethical issues in international trade will first need to be resolved through applicable public methods. However, considering that there is a party who produced and manufactured the goods, that is, a seller, and a buyer who purchased the goods, the area of the public law is now a matter of private law. Since the CISG does not mention the term 'ethics' in the full text, an ethical consideration is needed to interpret using existing provisions. In addition, a review of the validity, explicit and implied conditions, trade usages, or established practices between the parties through the CISG shows that ethical issues between the trading parties subject to the CISG may constitute part of the sales contract. Ethical hardship in the process of implementing the contract can also be seen as a impediment in the CISG. However, the safe way for a party to avoid disputes is to explicitly insert a contract clause incorporating ethical standards in the contract or add related terms and conditions and codes of ethics.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.159-185
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• 2011

This paper is intended to discuss the controversial issue of the principles of change circumstances under the legal system of international commercial transactions. The principles of change circumstances, so called clausula rebus sic stantibus is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept). The practical needs of international transactions differ from the established concepts of national contracts law. The purpose of this paper is to analyze the legal system and theories under the regimes of international commercial transactions such as the CISG, the PICC, and the PECL. Clausula rebus sic stantibus does not apply if the parties to a treaty had contemplated for the occurrence of the changed circumstance. It only relates to the changed circumstances that were never contemplated by the parties. This paper has shown that the hardship provisions in the CISG, PICC, 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(in addition to Article 7.1.7), PECL Article 6.111(in addition to 8.108). It is time when we should reconsider its legal system with great interest in order to harmonize with the international standpoint. It will be the turning point of our viepoint under the international commercial transactions.

• 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 Korean Journal of Air & Space Law and Policy
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• v.20 no.1
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• pp.211-253
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• 2005

Recently, the Korean Supreme Court released two important decisions concerning damages for the pain and suffering from Aircraft noise. The local people who are living near the Air Force practice site at Maehyang-ri and the Kimpo International Airport brought lawsuits against the Korean government requesting damages for their financial loss from the severe noise and the damages for their pain and suffering. Plaintiffs alleged that they suffered physical malfunctions, extreme disturbances and the reduction of property values from the extreme noises which were daily repeated. District Court of Seoul Province did not allow plaintiffs all but the damages for pain and suffering. Plaintiffs could not prove the causation between their financial loss and the noise. The Supreme Court confirmed the lower court's decision. Article V of the National Compensation Act (analogous to the Federal Tort Claims Act of the USA) reads, "the government shall be liable for any loss caused by the defect on establishment or maintenance of public facilities." In the two cases, the major issue was whether the government's establishment or maintenance of Air Force practice site and the airport was defective because they caused serious noise to surrounding neighbors. Previously, the Supreme Court interpreted the clause "defect on establishment or maintenance of public facilities" as failure of duty to provide safety measures to the degree generally required to ordinary manager. However the Court at this time interpreted differently that the defect could be found if the facility caused to any person loss to the degree intolerable. In the two cases the Court confirmed the lower court's finding that noise level at the site was severe enough to be intolerable. This standard is based on the severity of the loss rather than the failure of duty. It became easier for plaintiffs to prove the cause of action under this interpretation. The consequence of the ruling of these two cases is 'rush to the courtroom' by the local people at similar situations. The ruling of these two cases was not appropriate both in theory and in consequence. The Korean tort system is basically based on the theory of negligence. Strict liability is exceptional only when there is special legislation. The Court created strict liability rule by interpreting the Art. V of the National Compensation Act. This is against the proper role of the court. The result of the cases is also dismal. The government was already sued by a number of local people for damages. Especially the Department of Defense which is operating many airports nationwide has financial hardship, which will cause downsizing military practice by the Air Force in the long run, This is no good to anyone. Tens of millions of dollars which might be used for compensation might be better used to prevent further noise problem surrounding airports.