• Korea Trade Review
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• v.44 no.6
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• pp.285-302
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• 2019

Good faith is difficult to define due to the facts that there is not an objective and concrete concept of good faith, and good faith in contracts for the international sale of goods is a principle that parties to the contract must act with sincerity as members of a social community. The Korean Supreme Court shall pay attention to setting the applicable standards that can be universally applied to good faith based on the self-established criteria. Through such effort, it is possible not only to realize the value of concrete validity pursued by the general clause of good faith but also to realize the value of legal stability by assuring the predictability of results when applying good faith. In the modern sense, it can be said that the arbitrary application of general rules rather than the escape and general clauses is a problematic situation in the application of good faith, but this problem can be solved by setting a reasonable standard of good faith. This paper studies good faith in the view of Korean law, international laws, and related cases in contract law. The purpose of this paper is to find the problems and solutions of the practical application of good faith by analyzing the Korean case (2009Da86000), which undermined the legal stability of good faith in Korea.

• International Commerce and Information Review
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• v.19 no.1
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• pp.191-210
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• 2017

The old sources of competitive edge and value added were land, labor, and capital. In today's knowledge-based economy in the 21st century, technology is attracting attention as a new engine of growth. That paradigm shift of world economy has resulted in the global spread of technology transfer and the gradual increase of trade of intangible goods including patents and know-how as well as tangible goods in international trade. An international license agreement is a representative form of technology transfer. In license agreements, the providers of technology keep their ownership of technology, allow the implementation of technology to the users of technology only for a certain period of time, and receive loyalty as a reward. Economic profit through such technology trade can be realized with the smooth implementation and termination of agreement. International license agreements are different from sales contracts, which represent international business transaction based on mutual obligation, in many aspects in that they target intangible goods of technology and aim for rent for a certain period of time. This study thus set out to examine issues that could be controversial in the main and individual obligation of the parties in international license agreements and provide implications helpful for the prevention of disputes in advance.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.85-105
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• 2016

The fact that one of the parties to the sale contract has had to pay demurrage to the shipowner under LD clauses in the charterparty does not of itself mean that he can recover that loss from his sale counter party under the sale contract: the route to such recovery is through express clauses in the sale contract itself. LD clauses in a sale contract stand free and independent of their counterparts in the relevant charterparty. LD clauses in a sale contract should be construed and applied as clauses in sale contracts, not as adjuncts to charterparties. Their interpretation should therefore be coloured not by decisions on laytime and demurrage in charterparties, but by their relationship to the contractual duties of CIF and FOB sellers and buyers. The results discussed here have implications for the drafting of LD clauses in sale contracts. If unwelcome surprises are to be avoided, it seems to advisable to start from the principle: what exactly do traders want or need in LD clauses. They need a clause which covers them against charterparty losses where those losses are the result of dealy caused by the counterparty to the sale contract. The parties to the sale contracts are well advised to prepare LD clauses concentrating on that purpose and bearing in mind the followiing questions. First, should the loading and discharge code in the sale contract appear in traders' or trade associations' standard terms and conditions or should they be left to ad hoc negotiation in contract sheets? Second, should that code be as complete as possible, covering loading or discharge periods or rates, demurrage and despatch, or is it enough for only some of those matters to be covered explicitly, leaving other matters to be governed" as per charterparty"? Third, does the introduction or incorporation of a stipulation for the giving of a notice of readiness make the start of laytime more or less predictable as between seller and buyer? Finally should a loading and discharge code in a sale contract actully be called a "laytime and demmurrage clauses"?

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.67-86
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• 2020

In the case of multiple commerce contracts in commerce, as well as multiple contracts related to it, a solution for the merging of arbitration proceedings is necessary in order to ensure uniformity of dispute resolution. Since the arbitration proceedings are based on the parties' agreement, no merging of two or more arbitration proceedings may transpire unless all parties agree. Claims of merging in arbitration proceedings lead to problems such as lack of party autonomy, resulting from lack of consent of the parties to merging, and how to appoint an arbitrator in a multilateral arbitration proceeding. Many of the major arbitration bodies have recognized the significant benefits of the terms of consolidation, and have recently revised the Arbitration Rules to include or extend existing clauses to reflect the needs of the parties. This study introduces the merging provisions of several selected major arbitration rules, such as the ICC, Switzerland, SCC, LCIA, SIAC, HKIAC, ACICA, and UNCITRAL rules, and looks at the main similarities and differences among the rules.

• Journal of Distribution Science
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• v.21 no.9
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• pp.115-121
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• 2023

Purpose: This study aimed to deal with disputes between the seller and the buyer in connection with the Letter of Credit (LC) in a sales contract. The Contracts for the International Sale of Goods (CISG) provides the rules on the fundamental breaches which can lead to termination of the sales contract but the CISG is not enough to govern issues arising from the LC disputes when the sales contract is not clear about the payment terms. This paper tried to find some solutions to the disputes by considering international rules, such as the Principles of European Contract Law (PECL). Research design, data and methodology: The methodology applied in this study was an analysis of some court decisions and extended literature review. Results: The study revealed that in contracts for the sale of international goods, the buyer was obliged to open an LC as manner of payment. If the buyer failed to open an LC or amend the terms of the LC, the seller could avoid the contract because this could deprive the seller's expected interest. Conclusions: Few studies in Korea have been comprehensively analyzed in terms of the obligations of regarding the LC with respect to the CISG in court cases. This study suggests safeguarding the buyer and seller when the LC is considered absolute or conditional.

• 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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.3-23
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• 2009

The meaning of Good faith is honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions. According to the CISG only regulated Art. 7. that is in the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade (1) and questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law (2). In the other hand PICC is related to the good faith and fair dealing, each party must act in accordance with good faith and fair dealing in international trade (1) and the parties may not exclude or limit this duty (2). Good faith of PECL is these principles should be interpreted and developed in accordance with their purposes. In particular, regard should be had to the need to promote good faith and fair dealing, certainty in contractual relationships and uniformity of application. Further more regarding to the good faith and fair dealing, same to the PICC regulations.

• Journal of Korea Trade
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• v.24 no.2
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• pp.1-14
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• 2020

Purpose - The purpose of this paper is to analyze the reformed duty of fair presentation provisions and related caselaw of the Insurance Act 2015 to gain a clearer understanding of the differences between the Act and the preceding legislation. Design/methodology - The authors analyzed caselaw from South Korea and China that involved breaches of the duty of disclosure. Cases highlighting differences between the duties of disclosure and fair presentation were selected. Findings - Changes in the practice of marine insurance laws are expected from the application of the reformed duty of presentation provisions. In particular, the rights of the insured are expected to increase, resulting in the fairer conduct of insurance contracts. Due to the fact that the Insurance Act 2015 has only recently taken effect, the provisions of existing caselaw have not yet been applied. This has limited the authors' scope of analysis. Originality/value - This paper describes the implications of the duty of fair presentation by analyzing caselaw from South Korea and China that involves the duty of disclosure. To the best of the authors' knowledge, this is the first paper that investigates the reformed duty of fair presentation provisions of the Insurance Act 2015 in the context of the legislation's implications for trade practices.

• Korea Trade Review
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• v.42 no.2
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• pp.345-367
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• 2017

A bank payment obligation(BPO) has been introduced as a new alternative instrument for trade payments based on a technology and data-driven mechanisms aimed at facilitating an electronic trading in international trade transactions. The BPO is governed by URBPO which was in effect as of July 1, 2013. The URBPO only applies to inter-bank relationships because the BPO is bank-to-bank payment obligation, not a bank-to-customer obligation. The URBPO does not cover the interaction between a bank and their customer. For this reason, the standard bank-customer guidelines on BPO agreements were required to prepare the agreements between the banks and their customers. Accordingly, the International Chamber of Commerce established "ICC Guidelines for the creation of BPO Customer Agreements" for the settlement and development of the BPO by supporting banks in creating contracts or agreements with their customers. So, This study is to review its establishment purpose and to present the implications by analyzing the ICC guidelines. This study was based on documentary research focusing mainly on the ICC Guidelines and the appendix.

• Korea Trade Review
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• v.43 no.1
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• pp.25-45
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• 2018

International commercial arbitration is an inseparable part of today's international commerce. International transactions are becoming increasingly complex. Problems brought by multi-party and multi-contract arbitration pose problems for traditional arbitration systems. The Korean Commercial Arbitration Board(KCAB) has released updated International Arbitration Rules(2016 Rules) and has adopted innovations similar to those introduced in the rules of major international arbitration institutions in recent years. The changes in the 2016 Rules are intended to increase the efficiency of the arbitral process, and introduce the process for consolidation of claims. For international commerce contracts, it would be appropriate, and necessary, to adopt a multi-party arbitration clause, as consolidated arbitration provides effective resolutions for multi-party disputes.