• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.41
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• pp.3-21
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• 2009

To understand the procedure of international commercial transaction clearly and logically, this author would like to emphasize the contractual approach in this paper. The main contract in the transaction is the contract of sale; to perform this contract, the three subordinate or supporting contracts(including the contract of carriage, the contracts of insurance and the contract of payment) should be followed and performed. In the contract of sale, besides the express Terms, the trade Terms have very comprehensive meanings. Each trade term in Incoterms(2000) deals with the matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of the goods sold. It also provides for the duties of seller or buyer relating to the contract of carriage, the contract of insurance and the payment in the process of the delivery of goods. Especially, it does not provide the methods of payment concretely, but it imposes the seller to hand over the documents evidencing the conformity of the contract of sale, and the delivery which includes the documents of carriage and/or insurance. Thus although the trade Terms deal with the obligations of the seller or buyer directly, they are very closely related with the contract of carriage and the contract of insurance indirectly, and also with contract of payment using the documentary draft. For the Arbitration or the litigation in the case of the breach of contract, the trade Terms play very significant roles. When an arbitrator or a judge decides the case, they should understand each obligation clearly, in which case, the trade terms give answers about who is wrong or who is right. Therefore, the contractual approach focusing on the trade terms would give very fruitful advantages to the students or teachers in understanding the procedure of the international commercial transaction systematicly and comprehensively.

• Journal of Arbitration Studies
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• v.11 no.1
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• pp.37-73
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• 2001

I. Preface It is widely understood that the 21st century, with the development of information technology(IT) and the spread of networks, will be called a digital economy where information-driven business will be norm rather than the smokestack economy of the past. And the drastically changed world market is expected to generate even more commercial transactions across the world creating large numbers of legal disputes. Therefore, each country will attempt to develop ADR(Alternative Dispute Resolution) as an alternative to judicial proceedings in order to cope with not only the ever-increasing international commercial claims but also domestic legal disputes. Taking this reality into account, this study begins with an exploration of mediation procedure as a way of helping the court faced with its overwhelming numbers of lawsuits. And also this study makes a theoretical comparison between ADR and mediation procedure, analyzing critical factors affecting the mediation agreement. Furthermore, it is designed to find ways for disputing parties to make better use of mediation and ensure fairness to the parties involved. It tries to enhance mediators' understanding of critical factors influencing the mediation agreement and their ability to handle commercial disputes in a more efficient way. To make an empirical analysis of these factors, bibliographic research and questionnaire were used. This analysis will fill the gap between the theory and reality, and make possible the structured research on the factors. Therefore, this study sets the model by which we can evaluate how the three critical factors (parties' inclination, mediators' characteristics, institutional features) affect the parties reaching a mediation agreement. Based on this analysis, a theoretical hypothesis was built and a questionnaire was made and distributed. During the course of this work, SPSSWIN 10.0 program was applied.

• Journal of Arbitration Studies
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• v.21 no.3
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• pp.115-136
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• 2011

In the past, Chinese arbitral system and Chinese arbitral associations were avoided by international society due to the cases which Chinese court rejected the recognition and enforcement of foreign arbitral awards based on rural protection. Especially Chinese court adjudicated to reject the recognition and enforcement of arbitral awards by interpreting public policy broadly. The abuse of public policy by court threats the existence of commercial arbitration system. Under this awareness, the author figured out Chinese court shows what kind of attitude about public policy of Chinese court in the present through analyzing the cases about rejection of enforcement in Chinese arbitral awards in order to analyze whether Chinese court still maintain the negative attitude like past or there exist changes with public policy which is one of the rejection reasons of recognition and enforcement in foreign arbitral awards as the central figure. Chinese court behaved in an uncooperative attitude about arbitral awards like that it reached a verdict to reject the enforcement of arbitral awards by reason of violation in public policy about several foreign arbitral awards at the beginning stage of establishing arbitration law. However, the situation of abuse in public policy was improved a lot by Chinese prime court which enforces pre-inspection system about judgment of rejection of enforcement in arbitral awards. So, there is no case about rejecting the approval and enforcement of arbitral awards by reason of violation in public policy by Chinese court except Yongning Co. case. Moreover, Chinese court got the trust and support from other countries through reinforcement of applied standard. However, Chinese court had been expressed concern from international society because they highly applied public policy and rejected to enforce arbitral awards in the recent case of Yongning Co.. Therefore, this study examined whether it is appropriate to apply public policy of Chinese court in the case of Yongning Co., and then I concluded that. Although Yongning Co. case is the first case which Chinese prime court agrees with public policy by reason of rejection of approval and enforcement in foreign arbitral awards, in my opinion, it doesn't mean that Chinese court has fundamental change in basic attitude and position about the approval and enforcement of foreign arbitral awards. Chinese court keeps the cautious uses of public policy in legal judgment of foreign arbitral awards and it looks like implementing the obligation in regulation of New York Convention sincerely.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.147-175
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• 2014

In contracts for the international sale of goods, a seller must deliver appropriate goods and hand over relevant documents according to a contract, which will transfer the ownership of the goods to a buyer. In this case, if there are defects in the contracted goods, the warranty liability will occur. However, in the United Nations Convention on Contracts for the International Sale of Goods (CISG), a term-the conformity of the goods to the contract-is used universally instead of the warranty. According to the CISG, a seller must deliver goods in conformance with the relevant contract in terms of quantity, quality, and specifications, and they must be contained in vessels or in packages according to the specifications in the contract. In addition, a certain set of requirements for conformity will be applied implicitly except when there is a separate agreement between parties. Further, the base period of conformity concerning the defects of goods is the point when the risk is transferred to the buyer. A seller shall be obliged to deliver goods that do not belong to a third party or subject to a claim then, and such obligations shall affect the right or claim of a third party to some extent based on intellectual property rights clauses. If the goods delivered by the seller lack conformity, or incur right infringement or claim of a third party, then it shall be regarded as a default item per the obligation of the seller. Thus, the buyer can exercise diverse means of relief as specified in Chapter 2, Section 3 (Article 45-Article 52) of the CISG. However, such means of relief have been utilized in various ways for individual cases as shown in judicial precedents made until now. Contracting parties shall thus keep in mind that it is best for them to make every contract airtight and they should implement each contract thoroughly and faithfully to cope with any possible occurrence of a commercial dispute.

• Journal of Arbitration Studies
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• v.17 no.3
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• pp.3-30
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• 2007

The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") done in New York on June 10, 1958 has been adhered to by more than 140 States at the time of this writing, including almost all important trading nations from the Capitalist and Socialist World as well as many developing countries. The Convention can be considered as the most important Convention in the field of arbitration and as the cornerstone of current international commercial arbitration. Korea has acceded to the New York Convention since 1973. When acceding to the Convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provisions relating to the enforcement of arbitral awards falling under the New York Convention begin at Article III. The Article III contains the general obligation for the Contracting States to recognize Convention awards as binding and to enforce them in accordance with their rules of procedure. The Convention requires a minimum of conditions to be fulfilled by the party seeking enforcement. According to Article IV(1), that party has only to supply (1) the duly authenticated original award or a duly certified copy thereof, and (2) the original arbitration agreement or a duly certified copy thereof. In fulfilling these conditions, the party seeking enforcement produces prima facie evidence entitling it to obtain enforcement of the award. It is then up to the other party to prove that enforcement should not be granted on the basis of the grounds for refusal of enforcement enumerated in the subsequent Article V(1). Grounds for refusal of enforcement are stipulated in Article V is divided into two parts. Firstly, listed in the first Para. of Article V are the grounds for refusal of enforcement which are to be asserted and proven by the respondent. Secondly, listed in Para. 2 of Article V, are the grounds on which a court may refuse enforcement on its own motion. These grounds are non-arbitrability of the subject matter and violation of the public policy of the enforcement country. The three main features of the grounds for refusal of enforcement of an award under Article V, which are almost unanimously affirmed by the courts, are the following. Firstly, The grounds for refusal of enforcement mentioned in Article V are exhaustive. No other grounds can be invoked. Secondly, and this feature follows from the first one, the court before which enforcement of the award is sought may not review the merits of the award because a mistake in fact or law by the arbitrators is not included in the list of grounds for refusal of enforcement set forth in Article V. Thirdly, the party against whom enforcement is sought has the burden of proving the existence of one or more of the grounds for refusal of enforcement. The grounds for refusal of enforcement by a court on its own motion, listed in the second Para. of Article V, are non-arbitrability of the subject matter and public policy of the enforcement country. From the court decisions reported so far at home and abroad, it appears that courts accept a violation of public policy in extreme cases only, and frequently justify their decision by distinguishing between domestic and international public policy. The Dec. 31, 1999 amendment to the Arbitration Act of Korea admits the basis for enforcement of foreign arbitral awards rendered under the New York Convention. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of the award.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.173-199
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• 2008

A letter of credit transaction of the preexistence have been raising one's head fraud charge problem as a result of abusing the principles of independence and abstraction. Every society has certain rules and conventions which it regards as important and most of people in any society. The paper document means a document in a traditional paper form. The eUCP credit must specify the formats in which electronic records are to be presented. In these present times, the issuance of documentary credit are performed by the SWIFT(Society for Worldwide Inter bank Financial Telecommunication) system. The eUCP have been written to allow for presentation completely electronically or for a mixture of paper documents and electronic presentation. Presentation is deemed not to have been made if the Beneficiary's notice is not received. An electronic record that cannot be authenticated is deemed not to have been presented. The e-UCP is the supplement of current existing UCP but is superior to UCP under some circumstances. The document shall include an electronic record. The place for presentation of electronic records means an electronic address. The current e-UCP is not clear on this matter. We have to note followings in case of presenting the documents electronically and applying the e-UCP. There are three principles in the letter of credit transaction, that is to say, independence and abstraction, document dealing, strict compliance. IN the electronic letter of credit, these principles are called as independence and abstraction, electronic document dealing, strict compliance.

• East Asian Journal of Business Economics (EAJBE)
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• v.11 no.2
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• pp.39-57
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• 2023

Purpose - This paper is to examine the work of a third party in the process of import and export management. In other words, the purpose of this paper is investigate the status and functional role of a third party in relation to each terms of the trade contract. Research design, data, methodology - This study consists of 5 chapters through literature survey. It will examine the involvement of the third party through each terms. Chapter 1 introduction, Chapter 2 deals with trade contracts, Chapter 3 investigates the shipping terms, payment terms, and insurance terms, and Chapter 4 reviews with commercial arbitration. And in Chapter 5, it looks at the conclusion and implications. Results - The relevant party in the import and export management process may be a third party through outsourcing, not the principal. At this time, in fulfilling each condition of trade, it can be seen that the implementation of tasks through the participation of a third party with high expertise can more smoothly and productively implement the overall import and export management. Therefore, it can be seen that the implementation of the trade business in which the third party participated can be interpreted in terms of derivative effects and at the same time can be a way to improve the principal's competitiveness procedurally. Conclusions -Through this study, in the import and export management, the performance of the work through the agent makes the entire process more smooth and efficient. Outsourcing of roles using the expertise of a third party, a subcontractor rather than a principal, is desirable and important.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.45
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• pp.51-82
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• 2010

The "rules of private international law" or "conflict of law rules" work to determine the governing law, the law applicable to international contracts. These rules permit parties' autonomy to choose the law applicable to their contracts in cases of both litigations and arbitrations. In this regards, the present article examines parties' five options for the choice of the law governing their contracts, which the parties should consider when negotiating and drafting an international agreement. This means that parties in international contracting should check the contents of the law that they are to choose as the governing law before doing so. The first option is to submit the contract to its own law, which can be the safest and simplest solution generally. However this option is subject to the consent of the other party, and is not appropriate when the domestic law chosen contains mandatory rules strongly protecting the other party. Secondly, the option of choosing the other party's law is not preferable in general. Even though the other party is strong enough to succeed in insisting on applying its own law, the other party is advised to counter-offer a neutral solution by suggesting the application of a transnational set of rules and principles of international contract, such as Unidroit Principles. The third option to choose the law of a third country should be taken with the caution that it should be harmonized with either, in case of litigations, the international jurisdiction clause which makes the country chosen have the jurisdiction over the dispute arising under the contract, or, in case of arbitrations, the way of selection of the arbitrator who has good knowledge of the law chosen. The fourth option of submitting the contract to the lex mercatoria or the general principles of law including the Unidroit Principles can be a advisable solution when a dispute is designed to be submitted to experienced arbitrators. The final and fifth is to be silent on the choice of the governing law in contracting. This option can be usefully available by experienced negotiators who are well familiar with the conflict of laws rules and enables the parties to avoid the difficulties to agree on the governing law issue and leave it open until a dispute arises.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.2
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• pp.19-45
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• 2009

The purpose of this paper is to research the contents and issues of the draft legislation of Part VI the Carriage by Act of Korean Commercial Code in respect of the liability of the carrier in the carriage of cargo by air, comparing to the related provisions of the Montreal Convention of 1999. The Montreal Convention in respect of the international carriage by air was adopted in 1999, and Korea has ratified the Montreal Convention in 2007. However, there is now no national legislation in respect of the carriage by air in Korea. Thus, the Ministry of Justice has prepared the draft legislation of Part VI the Carriage by Air of the Korean Commercial Code in July 2008, and the draft legislation is now being reviewed by the National Assembly. The draft provisions of Part VI the Carriage by Air are basically adopting most of the related provisions of the Montreal Convention in respect of the carriage of cargo by air and some draft provisions are applying the related provisions of the Korean Commercial Code in respect of the carriage of cargo by land and sea. In respect of the liability of the carrier in the carriage of cargo by air, the contents of the draft legislation of Part VI the Carriage by air are composed of the provisions in respect of the cause of the liability of the and the application for the non-contractual claim, the limit of liability, the exoneration from liability, the extinguishment of liability, the notice of damage to cargo, the liability of the agents and servants of the carrier, and the liability of the actual carrier and successive carrier. The draft legislation of the Carriage by Air of Korean Commercial Code is different from the provisions of the Montreal Convention is respect of the liability of the carrier in the carriage of cargo by air as follows : the draft Article 913 paragraph 1 provides additionally the riot, civil war and quarantine as the exoneration causes from the liability for damage to the cargo of the carrier in the Article 18 paragraph 2 of the Montreal Convention. In respect of the liability of the carrier in carriage of cargo by air, the draft legislation of Part VI the Carriage by Air does not provide the settlement by arbitration of dispute relating to the liability of the carrier and the requirement of adequate insurance covering the liability of the carrier which are provided in the Montreal Convention. In author's opinion, it is desirable that the above mentioned provisions such as the arbitration and the insurance shall be inserted into the draft legislation of the Carriage by Air of Korean Commercial Code. In conclusion, the legislation of Part VI the Carriage by Air of the Korean Commercial Code shall be made by the National Assembly as soon as possible for the smooth and equitable compensation for damage to cargo arising during the carriage by air.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.343-373
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• 2006

지적재산권의 속지주의 원칙에 따라 전통적으로 지적재산권의 침해에 있어서 결과의 발생이 없는 행위지를 침해지로 인정하지 않았다. 어문과 예술작품을 보호하기 위해 1886년 체결된 베른협약(Berne Convention for the Protection of Literary and Artistic Works) 제5조 제1항은 저작자가 베른협약에 따라 보호되는 저작물에 관하여 본국 이외의 동맹국에서 각 법률이 현재 또는 장래에 자국민에게 부여하는 권리 및 이 협약이 특별히 부여하는 권리를 향유한다고 규정하여 내국민대우원칙을 천명하고 있다. 또한 베른협약 제5조 제2항은 저작권의 보호와 향유는 저작물의 본국에서 보호가 존재하는 여부와 관계가 없이, 보호의 범위와 저작자의 권리를 보호하기 위하여 주어지는 구제의 방법은 오로지 보호가 주장되는 국가의 법률의 지배를 받는다라고 규정하여 저작권 침해가 발행한 국가의 법률의 적용을 명시하고 있다. 인터넷과 무선통신 기술의 발달은 저작물을 디지탈 형식으로 실시간에 전세계에 배포하는 것을 가능하게 하였다. 특히 저작물의 인터넷상에서의 배포는 다국적 저작권 침해행위를 야기하여, 저작권자가 다수의 국가에서 저작권 침해소송을 제기하여 판결을 집행하는 것이 필요하게 되었다. 헤이그국제사법회의(Hague Conference on Private International Law)에서 1992년부터 논의되어 온 민사 및 상사사건의 국제재판관할과 외국판결에 관한 협약(Convention on Jurisdiction and Foreign Judgment in Civil and Commercial Matters)에서 채택된1999년의 예비초안(preliminary draft) 및 2001년 외교회의에서 수정된 잠정초안(Interim text) (이하 헤이그 협약 )은 저작권자가 저작권침해행위가 발생한 각 국가에서 저작권 침해행위를 금지하는 소송을 제기할 필요없이, 동 협약의 한 가맹국가의 법원의 저작권침해금지판결을 다른 가맹국가에서도 집행할 수 있는 가능성을 제시해 주는데 의미가 있다. 헤이그 협약 제10조는 불법행위(torts)에 관한 일반적인 재판관할에 관한 규정을 두고 있으며, 저작권침해에 관한 분쟁은 동 조항의 적용을 받는다. 제10조에 의해 당사자는 가해행위지 국가의 법원 또는 결과발생지 국가의 법원에서 소송을 제기할 수 있다. 결과발생지의 경우 제10조 1항 (b)는 피고가 자신의 행위가 본국의 법규에 비추어 동일한 성격의 손해를 초래할 수 있다라고 합리적으로 예견할 수 없었던 경우에 본 조항의 적용을 배제하고 있다. 인터넷을 통한 저작권침해의 경우, 피고가 자신의 국가의 법규하에서 합법적으로 저작물을 웹사이트에 게시하였으나, 그 행위가 다운로딩이 행해진 국가에서 불법인 경우, 피고는 저작권침해를 예견할 수 없었으므로 이에 문제가 제기된다. iCrave TV사건에서, 피고인 캐나다회사가 미국 및 캐나다에서 방송되는 텔레비젼 방송 프로그램을 자신의 웹사이트에 게시하여 이용자들로 하여금 컴퓨터를 통하여 방송을 재시청 할 수 있도록 하였는데 이는 캐나다에서 합법인 반면에 미국에서는 저작권 침해에 해당한다. 피고는 방송 프로그램을 인터넷상에서 재방송하는 것은 캐나다법상 합법이므로 저작권침해를 예견할 수 없었다고 주장하면서, 해당 사이트에 오직 캐나다 거주자만의 접속을 허용하고 미국 거주자의 접속을 제한하는 일련의 Click-Wrap 계약과 스크린 장치를 제공하였다고 주장하였다. 본 사건 피고의 주장을 받아들인다고 가정할 때, 제10조 1항(b)에 의해 원고는 결과발생지인 미국법원의 재판관할을 강제할 수 없을 것이다. 지적재산권을 둘러싼 분쟁에 관한 재판관할과 국제법상의 판결의 승인 및 집행의 통일성을 기하기 위하여 2001년 1월 세계지적재산권기구(World Intellectual Property Organization)가 제안한 WIPO 협약초안(Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters)은 헤이그 협약이 재판관할과 판결의 승인 및 집행에 대한 일반적인 접근을 하고 있는 점에 반하여 지적재산권자의 보호라는 측면을 고려하여 지적재산권침해소송에 국제재판관할권을 규정하고 있다. WIPO 협약초안 제6조는 저작권자가 저작권 침해를 막기 위한 합리적인 조치를 취한 국가에서 저작권 침해소송을 피할 수 있다고 규정하고 있다. 따라서 본 조항에 의할 경우, iCrave TV사건의 피고는 미국에서의 저작권 침해소송을 회피할 수 있을 것이다. 이상과 같이 헤이그 협약이 외국판결의 승인 및 집행을 가능하게 하고 있음에도 불구하고, 외국법원의 판결이 다수의 가맹국가에서 집행되지 못하는 가장 큰 장애는 대다수의 국가들이 외국법원의 판결이 공서양속(Public Policy)에 반하는 경우 판결을 승인하지 않는 예외규정을 두고 있기 때문이다. 미국의 경우, Uniform Recognition Act와 Restatement(Third) of Foreign Relations에 따른 공서양속의 예외규정(Public Policy exception)은 외국법원의 판결의 승인을 부인하는 근거가 된다. Yahoo! 사건에서 Yahoo! Inc.의 옥션 사이트를 통해 독일 나치 소장물의 판매가 이루어졌는데, 프랑스 형법상 이는 범죄행위에 해당하므로, 프랑스 법원은Yahoo! Inc.에게 프랑스 이용자가 당해 옥션 사이트에 접속할 수 없도록 모든 가능한 조치를 취할 것을 명하였다. 이에 미국 법원은 프랑스 법원의 판결은 Yahoo! Inc.의 미국헌법 제1 수정(First Amendment)의 언론의 자유(freedom of speech)에 반하므로 판결의 집행을 거부하였는데 이는 공서양속의 예외규정을 보여주는 예이다. 헤이그 협약 제28조와 WIPO 협약초안 제25조 또한 공서양속의 예외규정을 두고 있다. 본 논문은 인터넷과 통신기술의 발달로 야기되는 다국적 저작권 침해사건에서 한 국가의 법원의 저작권 침해금지판결이 다수의 국가에서 승인 및 집행될 수 있는 능성을 헤이그 협약과 WIPO 협약초안 및 미국판결을 중심으로 살펴보았다. 국제적으로 통일된 저작권법이 존재하지 않고 외국 판결의 승인을 부인하는 예외조항과 외국판결의 집행에 관한 각국의 이해관계와 준거법의 해석이 다른 현시점에서 지적재산권의 속지주의를 뛰어넘어 외국법원의 판결을 국제적으로 집행하는 것은 다소 어려움이 있어 보이나 국제적인 집행가능성의 열쇠를 제시하는 헤이그 협약과 장래의 국제조약에 그 기대를 걸어볼 수 있겠다.