• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.46
• /
• pp.29-60
• /
• 2010

The incentive and reasons to publish FIDIC Conditions of Contract for Design, Build and Operate Projects(DBO Form) are manifold. It is partly a response to the increasing need for sophisticated project delivery methods in both the public and private sectors and the already widespread use of the FIDIC Yellow Book with operation and maintenance obligations and partly a response to the challenge to decrease maintenance cost to a minimum by means of a new procurement route. As a result, FIDIC has developed a new model form to meet this market place requirement. On the other hand, FIDIC did not simply adapt the Yellow Book but has developed a new form from it, whilst preserving the style of the already known FIDIC Forms and maintaining the wording where it was not necessary to change it for the purposes of a DBO Form. Moreover DBO Form fills up supposed gaps in other FIDIC Forms and ameliorates the claim management and dispute management framework. FIDIC DBO approach may be shortly summarized as follows. First, DBO Form provides for single project responsibility. Second, DBO Form has the clear objective of ensuring the use of a most reliable and efficient technology at the lowest life-cycle cost. Third, DBO Form is intended to operate as an effective quality increase in the design and construction of projects. Fourth, DBO Form is intended to provide significant benefits with regard to system integration and reduction of risks. Fifth, DBO Form accelerates and enhances completion schedule compliance. Sixth, DBO takes care of all three supporting pillars of sustainability(including economical, environmental and social elements). DBO Form is obviously a good starting point for negotiations and the preparation of calls for tenders, thus saving the parties time and money. However, existing cultural and legal differences, particular local conditions and the particular needs of some branches of the industry may require the form to be adapted according to the particular needs of a project. And Civil law practitioners are strongly recommended to verify carefully the underlying legal concepts and background of each clause of the General Conditions in order to avoid unnecessary and sometimes unnatural changes and amendments being made. Note that when preparing the Particular Conditions ensure that terminology is consistent and that existing inherent concepts should not be ignored.

• Journal of Korea Trade
• /
• v.26 no.1
• /
• pp.81-98
• /
• 2022

Purpose - This study aims to compare the requirements under the United Nations Convention on Contract for the International Sales of Goods (CISG) and the Korean Civil Act (KCA) regarding the buyer's right to require the delivery of substitute goods. The buyer's right to demand substitute delivery not only protect them from the seller's breach of contract but also preserves the contractual bond between the parties by providing an opportunity for sellers to protect their goodwill and circumvent the extreme remedy of avoidance. However, as substitute delivery entails additional efforts and costs for return and re-shipment, this right should not be allowed in every case of defect. Additionally, unlike the CISG, the KCA contains no specific provision related to the requirements for claiming substitute delivery. Therefore, it would be meaningful to examine and compare what requirements should be fulfilled before the buyer exercises the right in relation to non-conforming goods under the CISG and the KCA. Design/methodology - We conducted a comparative study of the requirements under the CISG and the KCA regarding the buyer's right to require delivery of substitute goods given a seller's delivery of non-conforming goods. Additionally, we referred to the opinions from the CISG Advisory Council, the draft of the KCA amendment, and related precedents, mainly focusing on the existence and severity of defects, reasonableness, and timely notice and requests as the major requirements for substitute delivery. Findings - The results of this study can be summarized as follows: First, the CISG provides more detailed requirements about the right to require delivery of substitute goods; by contrast, the KCA does not stipulate any such requirement. Thus, specific requirements for substitute delivery should be included when amending the KCA. Second, the CISG attempts to minimize overlapping and conflict with other remedies by specifying detailed requirements for the delivery of substitutes. Third, both the CISG and KCA require reasonableness for substitute delivery. Originality/value - Although there are no explicit legal requirements for substitute delivery under the KCA, there has been relatively little discussion of this issue to date. Therefore, the findings of our study can guide future revisions of the KCA to fill this loophole. Moreover, the recently released CISG Advisory Council opinion that clarifies the continuing confusion and debate, can help distinguish which remedy is suitable for a particular case. It may provide practical advice for businesspeople in international trade as well as legal implications for the future development of the KCA.

• The Journal of the Korea Contents Association
• /
• v.13 no.1
• /
• pp.175-185
• /
• 2013

The judgement which is subject of research has denied legal rescission of division of the inherited property by agreement based on (1) the fact that the division of inherited property terminated at the time of concluding mutual agreement in its nature while only the relationship of claim and obligation between the inheritor who has paid for such obligation and the inheritor who has acquired such obligation in the mutual agreement remains (2) and the fact that the legal stability is considerably hindered as the re-partition of inherited property having retroactive effect becomes unavoidable in case of approving the legal rescission of the division of the inherited property by agreement. But it is reasonable to also approve legal rescission on the division of the inherited property by agreement in case the division by agreement actually has the nature such as conditional donation between joint heirs (1) from the fact that the division of the inherited property by agreement gets the nature of disposal equivalent to exchange, transfer and abandonment of share between joint heirs in actuality, (2) and the fact that there are no other theories in approving the validity of mutually agreed rescission despite the fact that the re-partition of inherited property having retroactive effect is unavoidable even in case of the mutually agreed rescission of the division by agreement among all joint heirs. However, as the division of the inherited property by agreement is a contract that gets concluded only if all joint heirs participate, even the legal rescission for the reason of not fulfilling the obligations paid by one party of the heirs during the division by agreement must be considered as possible only by expression of intentions from all other joint heirs excluding this one party.

• Journal of Arbitration Studies
• /
• v.27 no.1
• /
• pp.3-35
• /
• 2017

For recent years, several disputes between Korean consumers and multinational companies have arisen. Since the disputes were big and material that children's safety was at issue, a question started if Korean law properly has protected consumers' rights against multinational companies. While the Korean legal society tried to legislate punitive compensation with this concern, the U.S. Supreme Court reached an interesting case law regarding consumer contracts. A recent trend on consumer contracts in the United States shows that general terms have arbitration clause with class action waiver. As much as international arbitration has worked as the most effective resolution in international commercial disputes, the concept is still foreign and the experts are not approachable to lay individual consumers. However, class action in arbitration can hugely help for lay individual consumers to bring a case before arbitration tribunal. California courts consistently showed the analysis that the practical impact of prohibiting class action in arbitration clause is to ban lay individual consumers from fighting for their rights. However, the Supreme Court held that the arbitration clause shall be enforced as parties agree even if consumers practically cannot fight for their rights in the end. Even though consumer contracts are a typical example of lack of parity and of adhesive contract, the Supreme Court still applies liberalism that parties are equal in power and free to agree. This case law has a crucial implication since Korean consumers buy goods and services from the U.S. and other countries in everyday life. Accordingly, they are deemed to agree on the dispute resolution clauses, which might violate their constitutional right to bring their cases before the adjudication tribunal. This issue could be more important than adopting punitive compensation because consumers' rights are not necessarily governed by Korean law but by the governing law of the general terms and conditions chosen and written by the multinational companies. Thus this paper studies and analyzes the practical reality of international arbitration and influence of arbitration clause with class action waiver with the U.S. Supreme Court and California case laws.

• Proceedings of the Korean Institute Of Construction Engineering and Management
• /
• autumn
• /
• pp.359-364
• /
• 2003

The loss of potential opportunity profit which is consisting in the partial markups of the corporation would taking placed in related with the time-delay deeply, has customarily disregarded in contract adjustment under the principles of denial of cost accounting method, declined conjecture in the point of benefits and protection of the law in scope of compensation and the restricted conditions of constant contract. It is being resulted from that the policies of the general principles of accounting standards which is subjected to ask an objective data and evidence, and the denial system as a debt derived from imperfect legal theory applied by current law. Therefore, it is necessitated to find if any irrationality in the positive system is and further to draw an improved reasonable measures to adopt by review of constant system preparing tile reasonableness with the method of suitable quantification devices provided that any time-delay is induced by the party.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.15
• /
• pp.7-31
• /
• 2001

All legal systems set out the principle of full compensation of damages, which aims to fulfil the plaintiff's expectations by putting him into as good a position as he would have been in if the contract had been performed. On the other hand, they place some limitations on the full recoverability of damages for breach of contract. In Civil Law systems, 'fault' is a necessary requirement for liability for damages, and the extent of recoverable damages is directly related to the degree of the dependent's fault. This principle, however, is not adopted by Common Law systems, in which the dependent would be liable in damages for breach of contract even though the breach was not due to his fault. The CISG is in a similar position to the latter systems. In Common Law systems as well as CISG, the extent of liability of the party in breach for damages depends on whether he foresaw or could have foreseen the damages at the time of contracting. Unlike the position in Civil Law systems, foreseeability seems to be the most effective principle to decide the extent. The tests for remoteness centre on reasonable foreseeability or contemplation of the loss. The party in breach is liable even for loss indirectly caused to the other party provided that this loss was foreseeable or contemplated by the party in breach. However, this manner to decide remoteness may lead to unreasonable results in some cases. If the party in breach were the inveterate pessimist who foresaw all sorts of possible damages, he could foresee damages too remote from the breach of duty. If this fact were revealed in the course of trial, he should be liable for such indirect damages. This is really undesirable result. Therefore, as to the remoteness test, the criterion of whether the loss is foreseen or contemplated must not be adopted. Foreseeability by reasonable person must be the only available criterion.

• Journal of Arbitration Studies
• /
• v.19 no.3
• /
• pp.25-42
• /
• 2009

That occur in international trade disputes between the parties without resorting to a court trial on the basis of principle of government by the parties to resolve the dispute resolution in general (Alternative Disputes Resolution: ADR) agreed to, reconciliation, coordination, mediation and other methods are. Here, unlike arbitration and other dispute resolution arbitrator, the court confirmed the arbitration award came from the judge and the same shall become effective in doing international commerce dispute resolution methods are widely used. Arbitration Agreement is a contractual dispute, regardless of whether a certain law there arise about the relationship between the parties, Currently exists, future conflicts can arise in whole or in part by the arbitration agreement is to be resolved. Arbitration agreement include: the effects of out of contract arbitration proceedings, the court does not want the progress of the dispute referred to arbitration proceedings to the effect, and the presence of the parties to the arbitration agreement does not claim to knowing the defense plea that Appeals ticket of destruction that have the effect of demurrer, that the arbitration agreement are rebuttal to the rebuttal of prozesshindernde Einrede and the mediation of a plea on the merits when the first defense must be submitted to the arbitration proceedings in which the applicant until the arbitration award determined that the property dispute to court for water conservation measures to dispose of the watch was in effect for arbitration in the contract. In addition, the arbitration agreement and the court sentenced the same kinds of effects that resolved the final effect, especially at the same time the effect of foreign recognition and enforcement of the decision regarding the New York Convention arbitration award based on the recognition and enforcement of domestic and international effects are being recognized. Consequently, the arbitration agreement to take effect a valid arbitration agreement exists is determined by whether or not staying. Therefore, agreements between individual university entrance exams based on the company signed a contract regarding the effect of arbitration first, associated with individual university entrance exams, and the leading research and analysis, review, and examine the general concept of the arbitration agreement after the arbitration agreement between the parties focuses on information about the effects of study to contribute to the activation of the arbitration system is aimed at the individual university entrance exams.

• Korean Institute of Interior Design Journal
• /
• v.22 no.1
• /
• pp.211-221
• /
• 2013

As the result of investigating domestic interior design (interior architecture) field-related laws, it was found that interior design (interior architecture) is not recognized as in independent area due to weak classification standards by Korean standard industrial classification and job classification. Korean standard industrial classification is applied as a standard setting limits to applicable targets and industrial fields for laws related to general administration and industrial policy other than various statistic purposes. Also, the standard industrial classifications regarding the industry field determines the laws or applicable tax rates, government support and such according to the classification, and thus is very important. Moreover, interior architecture field is largely different from general architecture due to specialization and distinct characteristics, but due to the comprehensive concept of architecture industry regulations, it is considered the proper assessment for the professionalism is not conducted. Also, interior architecture field has irrational contradictions that is not independent with a clear definition and industry field classification not only in legal system and trade customs. Therefore, The following is proposed as the plan to strengthen the domestic/international competitiveness and system improvements for interior architecture. (1)interior design (interior architecture) must be amended as an industrial classification that can coexist with architecture. (2)interior design (interior architecture) must be amended as a job classification that can coexist with architecture. (3)Among the design tasks of an architect, approval for the design task field of interior architecture field must be legislated. -In architect design standard contract (the existing architecture design task scope and quality standard table) of a structure, among the tasks by request of the owner, (1)interior design tasks shall be legislated. It should be legislated so that interior design (interior architecture) majors can be included as well. (4)The task field of interior design that coexists with design must be amended. (5)National contract law - among contract method by negotiation, specialty item must be vitalized.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.28
• /
• pp.91-117
• /
• 2005

The purpose of this paper is to examine practical and legal considerations in the choice of the "Seat of Arbitration". As the selection of the "Seat of Arbitration" in an international commercial contract is vital both judicially and practically, so to speak, in terms of enforceability of award, judical interference in arbitration proceedings, relative convenience and expense, and the selection of arbitrators, the selection should be carefully considered and examined. In case of institutional arbitration, when the arbitration clause does not nominate the seat, the administrator or the secretariat of the institution or the arbitrator tribunal would usually determine the seat. On the contrary in case of ad hoc arbitration, Unless otherwise agreed by the parties, the "Seat of Arbitration" would be determined according to the rules which are selected by parties or their arbitrators. To avoid confusing situation about the selection of the seat, this writer would like to recommend ICC or LCIA with each Standard Arbitration Clause. If the parties want any national arbitration institution because of the expenses incurred in international institution, AAA or CEPANI is recommendable in terms of the reputation, operating system and recognized performance. Specially ICC Court of Arbitration usually examines the award before it is issued, so the enforceablity would go up. Thus when the parties lay down the arbitration clause in their contract they should confirm whether the "Seat of Arbitration" is fixed or not. If not, at least they should examine the arbitration rules which would be applied, and know in advance how the seat be determined.

• Journal of Arbitration Studies
• /
• v.13 no.1
• /
• pp.207-244
• /
• 2003

There are many parties who connected with contracts like a contract for construction. Dispute arising from the two parties can be souled by themselves. but it grows the necessity of settlement at one effort. The meaning of multiparty arbitration is solution of mixed disputes without inconsistency through multiparty concerned. H the parses wish to settle the disputes by arbitration, they must come to an arbitration agreement. The arbitration agreement is necessary to resolve disputes autonomously, that may be in the form of a separate agreement or in the form of a clause in a contract. More ever it is resonable to view the arbitration agreement as a substantive contract in its legal nature enabling the authority for dispute resolution by the arbitrator. I had argument about who should appoint the arbitrator. That is to say, each party can appoint the arbitrator, otherwise the courts can appoint one. The basis of multiparty arbitration is focused on the factor that the courts may have the right to order the consolidation of arbitration proceedings without consent of the parties. The dispute can be settled by the arbitrators who are appointed. Appointing arbitrator is very important because it affects the party's equality. The right to appoint arbitrator shall be entitled each party in multiparty arbitration. Therefore they can appoint plural arbitrators by mutual agreement. for .reference to Rules of Arbitration of The International Chamber of Commerce, the Court shall appoint a sole arbitrator or three arbitrators in condition. The Arbitration Act of Korea dose not have the clause on multiparty arbitration including the arbitration rules. But if we have the clause enacted, it brings a situation in which both parties gain a benefit.