• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.153-178
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• 2016

The United Nations Convention on the International Sale of Goods(CISG) leaves a number of aspects concerning commercial sales untouched. In particular, it is not concerned with the validity of the contract or of any of its provisions or of any usage. And UNIDROIT don't deal with all-round validity in International Commercial Contract. Especially, UNIDROIT includes declaration of intention department. The UNIDROIT contains the chapter 3 on the "validity" in terms of the defects of consent such as mistake, fraud, and threat as well as "gross disparity". Notwithstanding these provisions, the Principles did not deal with invalidity arising from the lack of capacity or authority, or immorality or illegality. On the other hand, there are arguments that the corresponding provisions of the Principles of International Commercial Contracts(UNIDROIT Principles; PICC). Therefore, Validity in International Commercial Contract is delegate by Each Country Law. So Trade practicer should know full well about Each Country Law Position. People(human, corporation, company) of position Trade practice classify each country civil law relation to validity of commercial contract. This paper is to examine the Validity of UNIDROIT Principles. Also this paper analyses comparison on each country position relation to capacity of right, capacity to act, illegality of contract, declaration of intention. In conclusion, This paper expect that people of trade practice makes use of analysis knowledge.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.23
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• pp.93-127
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• 2004

A contract is made when both parties have reached agreement, or they are deemed to have. After contract the law recognizes rights and obligations arising from the agreement. In order to discover whether agreement was reached between these two parties, we have to analyse the process of negotiation. Recently The People's Republic of China legislated a New Contract Law, which has come into effect since 1st of October 1999. This Law adapts the rules of United Nations(Vienna) Convention on Contracts for the International Sale of Goods and the Unidroit Principles for International Commercial Contracts. And this law is now widely enforced to commercial transactions between individuals, enterprises or other economic organizations of the People's Republic of China and foreign enterprises. Therefore, the foreigner who wish to make a sales contract with Chinese should understand the rules of New Contract Law of China. According to this New Law only a contract which contain offer and acceptance is valid and binding, and it is also pointed out that terms of contact must be certain. Though an oral contract is usually equivalent to a written one, in a case of commercial transactions written contract with signature is desirable. The purpose of this paper is to analyze the new rules of this Law and the new features of their application to commercial transactions in China.

• Journal of Arbitration Studies
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• v.33 no.2
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• pp.85-108
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• 2023

In international commercial arbitrations that arise from an international commercial contract, arbitral tribunals ruling on the merits of the arbitration apply the law governing the contract. The parties to contract are free to designate the law under the principle of parties autonomy. This paper examines this principle under the Korean Arbitration Act, and makes some legislative suggestions. For this purpose, this paper first discusses what is the scope of matters covered by the law governing the contract, what are the rules of conflict-of-laws for determining the law governing the contract, and what happens when the arbitral tribunal incorrectly applies the law governing the contract? Then, this paper further goes to examine issues such as the form of choice-of-law agreement, the explicit or implicit choice of law, the parties' ability to choose the rules of law including lex mercatoria, the change of choice-of-law agreement, the independence of choice-of-law clause.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.57
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• pp.3-34
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• 2013

In the international sales contract, long-term contracts often face hardship in fulfilling the original contract terms by relevant parties due to rapid change and uncertainty of political and economic circumstance. In this case, party who faces hardship of fulfillment terminates contract or demands adaptation to contract condition but if opponent doesn't accept this, it proceeds to commercial dispute needing legal interpretation. Generally it is wise to set forth governing law in contract between parties in the case of international contract, for legal stability. One of universal governing law which relevant parties select by agreement to solve economical hardship of fulfillment is PICC. PICC defines the hardship in detail for renegotiation on following hardship of fulfillment unexpected. In the case of failing renegotiation, Court(arbitral tribunal) conducts termination to contract or adaptation to contract condition through arbitration or mediation. In conclusion, when signing international long-term contract, it is desirous to handle dispute effectively by inserting provisions which can deal with economical hardship in contract or defining PICC as governing law in the case of hardship incurred. It is because it is realistic to handle dispute smoothly to the extent that both parties can be satisfied in the case of hardship incurred, though international contract should be fulfilled.

• 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.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 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.

• International Commerce and Information Review
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• v.8 no.1
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• pp.243-257
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• 2006

This study is to introduce the Chinese Contract Law against non-performance of the contract and to solve the wide range of problems involving to executing the trading contract. The parties' liability for the period of performance, the place of performance, the failure to deliver conforming goods together with it's nature of the lack of conformity, and the methods of compensation against damages and the force majeure clauses application. Those issues affect directly to commercial transactions in international business. The focus is more on the interrelationship of private individuals in its trade and on aiming to remove the legal obstacles from the Chinese Contract Law to freely flow of international trade. Reference may include foreign corrupt practices, Conventions on Contracts for the International Sale of Goods and Laws of England, France, and Japan. This study has brought the efforts of these issues in the full spectrum of performance and with concentrations on effectiveness to avoid the different viewpoints of the general principles of CISG and commercial practice founded pre-eminently. This study, in presenting the legal framework, will contribute to a better understanding of the purpose of rules of Chinese Contract -Law as they interact to the benefit of the parties involved in international trade transactions. The writer believes that a problem-oriented approach and the concentration as outlined above would offer a different perspective for law faculty teaching in this area and hope that this study can be sufficiently diverse to satisfy many of those views.

• Journal of Korea Trade
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• v.24 no.1
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• pp.113-130
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• 2020

Purpose - This paper examines the legal standards for the interpretation of contract terms in the UNIDROIT Principles of International Commercial Contracts (PICC) and the cases thereunder in order to provide academic implication to promoting an appropriate understanding of this topic in practical business. Design/methodology - This article uses the literature research and case study under the PICC. Findings - the contract terms shall be interpreted according to the common intention of the parties. If such an intention cannot be established, the contract shall be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances. The statements and other conduct of a party shall be interpreted according to that party's intention if the other party knew or could not have been unaware of that intention. If not, the reasonable person standard will apply. In applying above articles, all relevant circumstances including the conduct of the parties, practices and usages shall be considered. Terms and expressions shall be interpreted in the light of the whole contract or statement in which they appear and contract terms shall be interpreted so as to give effect to all the terms rather than to deprive some of them of effect. Where contract terms supplied by one party are unclear, contra proferentem rule applies. Where there is discrepancy between several equally authoritative versions of a contract, a preference is given to the interpretation according to the version originally drawn up. Where the parties to a contract have not agreed regarding an important term for their rights and duties, a term which is appropriate in the circumstances shall be supplied. Originality/value - This article examines various cases regarding the topic that were determined under the PICC. By finding legal standards and rulings of relevant cases, this article will help readers in practical business to enhance the ability to apply the provisions to their contracts.

• Korea Trade Review
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• v.45 no.1
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• pp.221-239
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• 2020

Among various export contracts, the contents of contracts are very important. Various companies make use of this method. [Which method are you talking about?] However, the Korean law system has an insufficient understanding of the international legal system. This paper looks into the conditions related to contracts in relation to the legal system. This paper analyzes not only the Korean civil law system about illegality of contracts but also makes a comparison with other international systems, such as the UNIDROIT Principles. Especially, the Korean civil law system about the illegality of contracts is comparable with the UNIDROIT Principles system about illegality of contracts. The purpose of this paper is to examine the revitalization of Illegality of Contract. This paper also deals with improvement of International Commercial Activation. Thus, this paper will offer directions to International Trade Practitioners. There is disagreement regarding methods of action related to international trade practice. Especially, this study is good for commercial parties, especially overseas sales people.