• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.76
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• pp.21-47
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• 2017

Interim measures by an arbitral tribunal aim to protect the parties' rights before or during arbitral proceedings for avoiding frustration of the final award in international commercial disputes. Even though decisions of the interim measure are expected to be performed by parties directly during the arbitral processing, it is not easy to be provided by the arbitral tribunals cause of lack the power to enforce their decisions directly against the parties. Particular court supports mechanism for enforcement directly to assistance to arbitral tribunal's decisions. Decisions on interim measures are provisional. Even though the arbitration is ongoing to request interim measure directly to the arbitral tribunal, relevant courts are able to ensure effective relief cause by the difficulty of limited rights of the arbitral tribunal. In this time both revised Korean Arbitration Act in 2016 and UNCITRAL 2006 revised Model Law are complemented to attach articles for recognition and enforcement of interim measures by arbitral tribunal during the arbitration processing. It could be possible to enforcement of decisions of interim measures by arbitral tribunal on the revised arbitration law. In this paper it is considered the problems and alternatives on related applicable articles and articles of recognition and enforcement for the interim measures by arbitral tribunal under the revised UNCITRAL Model law and Korean Arbitration Act.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.145-168
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• 2018

The purpose of this paper is to introduce the limitation of liabilities of multimodal transport operators(MTO) in Korea. Also, this paper reviews the revised draft of Korean Commercial Code in 2015. This paper analyzes Korean multimodal transport systemand the limitation of liabilities of MTO by analyzing articles, regulations and practices of Korean Commercial Code and it's the draft in 2015. The paper, also, studies multimodal transport rules by comparing specifically international treaty, rules, or practices. In Korea, Article 816 of Commercial Code treats multimodal transportation adopting the network liability regime. The Article describes only the case of the multimodal transportation where the maritime carriage is engaged. Korea proposed the draft of multimodal transport regulation of Commercial Code in 2015 because present law could not apply for the multimodal transportation involved in the air or land carriage. This paper support the draft of Korean Commercial Code in 2015 because it is necessary to make a predictable legal system of multimodal transport and the limitation of liability reflecting practices or customs.

• 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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.21
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• pp.129-151
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• 2003

Nowadays even if environment of international commercial transaction is changing quickly municipal law could not meet with such change accordingly. So far, however, efforts towards unification have prevailingly taken the form of binding instruments, such as non-national or supranational legislation, international conventions or international model laws. Among them, the UNIDROIT Principles with parties' autonomous and yet non-binding character do not only meet the substantive requirements of a true law merchant. In addition they also counter some of the main points of criticism against the modern lex mercatoria. As such the Principles constitute a cornerstone in the lex mercatoria debate and may become the heart of the new lex mercatoria. The purpose of this article is to ask whether there could be applied the Principles in international commerce. For the purpose it is to investigate when the Principles are applied in international commerce and how effectively the Principles are applied for the decision in international commercial disputes. Even though the Principles are used for reference by parties involved for the voluntary regulation of their contract, it is sufficiently expected that the Principles are to be a stepstone of uniform contract law in international commerce. Until now cases of appling the Principles are not satisfied with its expectation as a source of non-legislative means of unification or harmonization of law. Given the party's autonomy in the contract, this is among other things because business parties are strongly tend to observe their national laws in their international commerce. And also, even though there are a number of neutral and uniform regulations for international commercial contracts, parties do not often recognize their usefulness with being up to expectation. In order to explore the applicability of the Principles a number of cases of ICC International Court of Arbitration and others are quoted.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.161-182
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• 1999

The purpose of this paper is to examine the applicability of the UNIDROIT Principle in international commercial arbitration. For this purpose, I have studies the basic two characters of this Principles: One is of general rule(principle); Another is of international and commercial character. According to CISG, questions concerning matters governed by the CISG which are not expressly settled in it are to be settled in conformity with the general principles, so this Principles will cover many questions which are not expressly settled in the applicable law, by gap-filing, analogy or usage. In the preamble of this Principles, there are five cases in which the Principles shall be applied or may be applied. If the disputes are submitted to the any national court, the application of this Principles would be restricted because of the mandatory rules of national, international or supranational origin. But the disputes are submitted to arbitration, the arbitrator would have more discretional powers to apply the Principles than the judge. The reason is that in the arbitration, the arbitrators do not bear obligation to act in conformity with the law applicable by virtue of the rules of rules of private international law. I also examined the applicability of the Principles in cases which there are no mentions in preamble: When the international arbitrators choose the Principles; When the arbitrators decide ex aequo et bono; When the both parties have not chosen the governing law; When there are gaps in domestic law chosen by the parties; When the applicable domestic law is insufficient. In all these cases, the Principles may be applied more easily and conveniently in arbitration than in litigation. Thus to envisage the application of this Principle in international arbitration, first both parties in international commercial contracts should incorporate this Principle as a governing law in their contracts, and second, the arbitrators should try to apply this Principles in their arbitrations by choice, analogy, general principles or usage.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.81-119
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• 2006

The parties in the trade can have full autonomy and can resolve disputes independently, impartially and without delay by selecting arbitration by agreement. Korea and Japan had revised their Arbitration Laws to incorporate as many provisions of the 1985 UNCITRAL Model Law as possible. Japan had amended its century-old arbitration law, becoming the 45th country to adopt the UNCITRAL Model Law on International commercial arbitration. New Arbitration Law was enacted as Law No.138 of 2003 and effective on March 1, 2004, is applicable to both national and international arbitration. Korea had amended its arbitration law on December 31, 1999 and its New Arbitration Law incorporates the most of the 1985 UNCITRAL Model Law as Japan. Arbitration must be popular in resolving international commercial disputes in Northeast Asian bloc in order to increase the volume of intra-trade in the Northeast Asian bloc. But in order for the parties to make use of arbitration in the bloc, the arbitration laws of nations in the bloc must have similarity and unification. As Korea and Japan playes important roles in the bloc, both nations's arbitration laws must be studied in view of similarity and difference to unify both nations' arbitration laws by way of showing an example. Therefore, this paper deals with both nations' arbitration laws in view of comparative law to unify their arbitration laws and Northeast Asian Nations' arbitration laws.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.85-105
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• 2016

Independent guarantee is new financial product developed in international commercial transaction. The nature of independent guarantee is an independent undertaking, which takes the form of documentary transaction. As long as the documents presented by the beneficiary are on their face complying with the terms and conditions of the guarantee, the guarantor is obliged to pay upon the complying presentation. Where parties choose to apply for issue of independent guarantee in international commercial transactions in China, Chinese court shall respect the autonomy of parties. If either the guarantor or the beneficiary is located outside of China, or the facts which cause the establishment, change or cancellation of independent guarantee relationship occurred outside of China, it shall be deemed as foreign related independent guarantee. If the interested parties requests for confirmation of the independence of foreign related independent guarantee, it shall be supported by Chinese court. However, parties dealing with Chinese domestic commercial transaction have not fully realized the severity of independent guarantee liability. The market credit is being cultivated and the financial innovation is being explored at present in China. In order to guard against the systematic and the regional financial risk, before relevant rules are promulgated, Chinese court shall not recognize the independence guarantees issued for the domestic commercial transaction, but treat it as joint liability surety.

• Journal of Korea Trade
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• v.26 no.7
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• pp.167-184
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• 2022

Purpose - This paper analyzes all possible issues that need to be considered in case disputes occur with regard to force majeure in international commercial contracts through the comparative study between English and Korean during COVID-19. Design/methodology - This paper belongs to the field of explanatory legal study, which aims to explain and test whether the choice of law is linked to the conditions that occur in the reality of judicial practice. The juridical approach involves studying and examining theories, concepts, legal doctrines, and legislation that are related to the problem. Findings - English law does not permit general economic impracticability to qualify as a valid force majeure event. If a party asserts that they were prevented from performing the contract, the courts will examine this strictly. Many commercial contracts in a broad range of sectors and industries are chosen by parties to be governed by English law. With COVID-19, there have been discussion of parties being released from performance as a result of force majeure. Meanwhile, under Korean law, a force majeure event should be unforeseeable and beyond a party's control. Since COVID-19 is a known event for future contracts, to avoid the risk that a similar situation in the future is deemed foreseeable and under a party's control, parties must ensure that such a risk is properly addressed in a contract. Therefore, it is necessary to have a new clause to cover a pandemic. Originality/value - In light of the ongoing unexpected and uncertain economic impacts COVID-19 is expected to bring to the world, it is anticipated that companies will experience an increased number of claims involving force majeure around the world, including English and Korea. As such, taking proactive steps to assess the applicable legal principles, including the concept of force majeure of contract, will help companies be prepared for the financial or legal implications of COVID-19. In this regard, it would be advisable for companies and businesses to take specific actions.

• Journal of Arbitration Studies
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• v.7 no.1
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• pp.33-54
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• 1997

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.68
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• pp.123-148
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• 2015

Central Asian Countries had been independent in 1991 from USSR. Since then it have been increasing foreign trade and investment amount with outside countries including China, Japan, EU and South Korea. Korean enterprises and entities have endeavored to secure plentiful natural resources, oil and gas energy and expand the market share to exporting the consuming and industrial competitive goods and services for those countries. In the case of disputes of commercial transactions and investment, arbitration is regarded as a dispute resolution system which has been preferred in international transactions and investments by the business world. Since the collapse of the USSR, Central Asian Countries have worked to modernize its arbitration law and procedure to conform with international standard rules. Arbitral legislation in Central Asian countries is based on the Model Law as adopted in 1985. However, CIS's legislation systems of arbitration are not satisfied with the international standard in national laws and practices. That is the reason to consider for the specific parliament about arbitration for the dispute resolutions in the commercial transaction and investment between Korean enterprises and CIS. In this article, it is discuss problems and its alternatives in the dispute resolution about the commercial transaction and investment into Central Asian countries including the tendency to the increasing the trade volumes of goods and investment between South Korea and CIS. According to this article, South Korea consider the long term strategy followed the preferred economic relative partnership for business success on commercial transaction and investment with the Central Asian Countries.