• Journal of Arbitration Studies
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• v.26 no.1
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• pp.135-157
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• 2016

CISG is the most important international convention in the field of international sale of goods. Many arbitration organizations often invoke this convention when settling disputes between the parties concerned. China has been one of the contracting states since the effective date of CISG, and has settled many cases with it. This article aims at analyzing the legal status of CISG in China and the methods with which Chinese arbitration organizations apply CISG. Also, it looks into the existing problems, based on which it provides suggestions for improvement.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.3-41
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• 2011

In this article, the author have studied on main revisions and some recommendations of the Incoterms(R) 2010. Main revisions are as belows. 1. Two new Incoterms rules -DAT and DAP- have replaced the Incoterms 2000 rules DAF, DES, DEQ and DDU. 2. New classification of the Incoterms(R) 2010 are adopted. First class is Rules for any mode or modes of transport(EXW, FCA, CPT, CIP, DAT, DAP and DDP belong to this class.) and second class is rules for sea and inland waterway transport(FAS, FOB, CFR and CIF belong to this class.). 3. Incoterms(R) 2010 rules formally recognizes that they are available for application to both international and domestic sale contracts. 4. The Guidance Notes and Introduction are not part of the actual Incoterms(R) 2010 rules. 5. Under the FOB, CFR and CIF, all mention of the ship's rail as the point of delivery has been omitted in preference for the goods being delivered when they are "on board" the vessel. 6. Incoterms(R) 2010 rules include the obligation to 'procure goods shipped' as an alternative to the obligation to ship goods in the relevant Incoterms rules. 7. Incoterms(R) 2010 rules give electronic means of communication the same effect as paper communication. 8. Incoterms(R) 2010 rules have allocated obligations between the buyer and seller to obtain or to render assistance in obtaining security-related clearances. such as chain-of custody information. Some recommendations are as belows. 1. The parties must incorporate the Incoterms(R) 2010 rules into their contract of sale. 2. The parties must choose the appropriate Incoterms(R) 2010 rules. 3. Specify the place or port as precisely as possible in their contract of sale. 4. Remember that Incoterms(R) 2010 rules do not give the parties a complete contract of sale. 5. Incoterms(R) 2010 rules do not prohibit alteration of Incoterms rule, but there are dangers in so doings. In order to avoid any unwelcome surprises, the parties would need to make the intended effect of such alterations extremely clear in their contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.75
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• pp.1-28
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• 2017

Article 67 of CISG which provides for the passing of risk of loss of the goods applies to the contract of sale involving carriage of the goods. The risk here is in nature the price risk. Under Article 67(1), if the seller is bound to hand the goods over to a carrier at a particular place, the risk passes to the buyer when the goods are handed over to the carrier at that place; if the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the carrier. In these cases, the risk passes even though the seller duly retains documents controlling the disposition of the goods. Article 69 of CISG applies to the contract of sale that does not involve carriage of the goods. Under Article 69(1) which covers the situation that the buyer is bound to take over the goods at the place of business of the seller, the risk passes when the buyer takes over the goods, however if the buyer does not take over the goods in due time, the risk passes at the time when the goods are placed at the buyer's disposal and he commits a breach of contract by failing to take delivery. Under Article 69(2) which covers the situation that the buyer is bound to take over the goods at a place (including his own place of business) other than the place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place. Under these provisions of CISG, this study suggests what should be the definition of the contract of sale involving carriage of the goods. This study goes further to looks into what should be the concepts of the handing over of the goods by the seller to the carrier, the taking over of the goods by the buyer and the placing the goods at the buyer's disposal by the seller. This study may, we hope, provide a guidance for clearer understanding of the exact time of passing of risk under CISG.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.59-98
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• 2013

Risk of loss is a term used in the law of contracts to determine which party should bear the burden of risk for damage occurring to goods after the sale has been completed, but before delivery has occurred. Under the Uniform Commercial Code (UCC), there are four risk of loss rules, in order of application. First, it is agreement that is the agreement of the parties controls. Second, the breaching party is liable for any uninsured loss even though breach is unrelated to the problem. Hence, if the breach is the time of delivery, and the goods show up broken, then the breaching rule applies risk of loss on the seller. Third, the delivery by common carrier other than by seller is necessary: Risk of loss shifts from seller to buyer at the time that seller completes its delivery obligations; If it is a destination contract, then risk of loss is on the seller; If it is a delivery contract, then the risk of loss is on the buyer. Fourth, if the seller is a merchant, then the risk of loss shifts to the buyer upon buyer's receipt of the goods. If the buyer never takes possession, then the seller still has the risk of loss. This paper discusses problems of risk of loss under the American law. Specifically, this paper focuses on the interpretation of UCC sections and analysis of various cases. By comparing, also, UCC and Korean law, the paper proposes some implications of risk of loss issues for Korean law.

• Korea Trade Review
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• v.42 no.2
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• pp.29-52
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• 2017

This research employed a comparative legal analysis to explore the rules of CISG, Incoterms 2010, Chinese Contract Law, and Korean Civil Act with precedent researches and present customs in the international sale of goods. The results of this study show that there are some differences in the provisions of seller's delivery obligation to those regulations, such as the time and place of delivery goods, the conformity of goods on the contract, and delivery of documents. Therefore, the parties of contract, especially between Korean and Chinese traders, must be aware of the differences in the provisions of those selected regulations in order to reduce disputes between them, out of or in relation to or in connection with their sales contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.52
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• pp.3-22
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• 2011

This study examines the seller's liability to transfer the property to the buyer. Even though contracting parties choose CISG as the governing law regulating their obligations and rights by means of their contract, CISG does not concern with the effect generated by the transfer of property. Thus, the issues of the property is settled in conformity with the domestic law applicable by virtue of the rules of private international law. By considering the general rules of the transfer of property in goods under SGA and KCC as the lex rei sitae, the difference of requirements to pass the property between them is analyzed and then the reasons why the transfer of property is importantly considered are discussed. In addition, as CISG does not exclude completely the matters concerning the property and provides the provision like Art 41, the seller's liability to deliver goods free from the third party right or claim is examined under Art 41. Lastly, the practical advice is suggested.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.60
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• pp.27-46
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• 2013

The Incoterms and United Nations Convention on Contract for the international Sales of Goods(CISG) allocate a risk in their articles. These rules make a decision that the parties who make a transaction are bound to bear the risk or damages of goods. Though a goods have a damages or loss during a transportation, buyer is liable for the payment of purchase price. In this case, this paper defines the meaning whether who can bear the risk under Incoterms and CISG. In the majority cases which deal between parties, after shipment or at the end of carriage, the loss or damages are found in buyer's hand. If a damages or loss is made during transit, customarily these risk are covered by insurance. Otherwise, these rules provide a tools for solving this problems. Then, between parties should be accomplished their target equitably.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.74
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• pp.1-23
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• 2017

The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. Article 38 lays down a fundamental principle that requires the buyer to examine quickly the goods delivered by the seller. Article 38 (1) provides that the examination be made within as short a period as practicable in the circumstances. The goods have to be examined within as short a period as is practicable in the circumstances. The rule is based on the fundamental idea of reasonableness, meaning that the buyer must examine the goods as soon as reasonably possible. It may be said that the buyer should act reasonably fast. Article 38 (2), (3) concerns sales involving carriage of the goods, where the seller's obligation to deliver consists in handing the goods over to the first carrier for transmission to the buyer. In this case the buyer is generally able to examine the goods only after they have come to destination. Article 38 (3) takes into account the case where the buyer redirects the goods in transit or re-dispatches them to another destination. Redirection in transit occurs when the destination is changed before the goods are received by the buyer. The buyer could re-dispatch the goods without having them unloaded, or re-dispatch them through another carrier.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.91-113
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• 2017

UN Convention on International Sale of Goods (CISG) and International Commercial Arbitration aim at the promotion and facilitation of international trade. Both of them share similar general principles; i.e., party autonomy and pacta sunt servanda. Also they are often applied concurrently in the case of the international commercial trade. The purpose of this article is to investigate whether the CISG could apply the formation of the arbitration clause that is included in the main contract governed by CISG. Sellers and buyers have freedom of designating choice of law that is applied to their contracts. An international arbitration agreement is presumed to be separable from the contract in which it is found. However, arbitration clauses commonly form part of a general contract. Thus, the CISG is intended to be applied to dispute resolution clauses, including arbitration clause even if it is not completely suitable. Notably, there is a fundamental distinction between the CISG and arbitration. The CISG abolished the formalities of contract. New York convention requires Contracting States' Courts to enforce written international agreements to arbitrate.

• Journal of Korea Trade
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• v.23 no.4
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• pp.80-102
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• 2019

Purpose - This paper aims to articulate relationship about factors influencing FTA utilization by dividing them into company's external and internal factors and performing investigation on the relationship between FTA utilization and export performance. Design/methodology - This study verified factors influencing FTA utilization by dividing them into company's external and internal factors and performing investigation on the relationship between FTA utilization and export performance. Empirical analysis was performed by setting internal and external factors required for FTA utilization as variables. To achieve this, research model was established based on previous study, hypothesis was deduced, and statistical program were used to test the hypothesis. This study performed empirical analysis using statistical program of SPSS 18.0 and AMOS 18.0 for the research model. Findings - Empirical analysis was performed regarding the effect of the FTA utilization on export performance and previous study defined export performance as the company's increased economy benefits through export and increase in new transactions. Analysis was also performed for factors affecting the FTA utilization by the company and through management and response of external factors and internal factors it was confirmed that the FTA utilization by the company led to increase in the company's export performance as a result. This study proposes a method to achieve export performance based on this. Originality/value - Companies seeking to utilize the FTA sign the Contract for the International Sale of goods and there are many conditions to meet in order to receive trade preferences during the transaction process. Existing trade order and order in the FTA have to be followed. Country of origin can be seen as key in the FTA. The Rule of Origin becomes the most important evaluation standard in applying preferential tariff in the FTA. Such regulations can be seen as external factors which cannot be controlled by the company. Internal factors are capabilities owned before that can be controlled by the company. The study sought to test the variables regarding factors centered on such capability. This study verified factors influencing FTA utilization by dividing them into company's external and internal factors and performing investigation on the relationship between FTA utilization and export performance.