• 무역상무연구
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• 제49권
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• pp.111-137
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• 2011

UCP 600 Article 14(b), providing rules for the period of the examination of documents, is a radical reorganization of UCP Article 13(b). The provision changes the period of time to a maximum of five banking days instead of reasonable time. One of the critical problems giving rise to the difficulty in interpretation and application is the question of fact that there may be two possible conflicting options in determining the time of checking documents presented. The one doctrine is fixed time(safe harbor) standard, and the other is hidden reasonableness standard. This study analyzes which option should be adopted for the optimal application standard by welfare effect methodology using consumer surplus approach and suggests that safe harbor standard should be optimal solution to the determination of period of examination of documents presented in letter of credit regime.

• 무역학회지
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• 제46권2호
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• pp.93-106
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• 2021

This study analyzes trade communication methods by comparing and analyzing payment methods and procedures of L/C and BPO transactions. As a result of the study, BPO transaction is validated based on the combination results of the confirmed baseline and data set unlike the L/C transaction. Therefore, BPO is superior to L/C transaction in that there is no confrontation between the parties over the matching results. And it can proceed with certain transaction that is paid first and proved later. In addition, the process of accepting data mismatches results in a confirmation of the payment commitment considering the intention of the importer. This allows flexible disposition of documents in response to the post payment situation as long as the documents are held by the exporter, which can be said to be superior to the L/C transaction.

• 무역상무연구
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• 제11권
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• pp.361-388
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• 1998

• 한국중재학회지:중재연구
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• 제16권1호
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• pp.277-314
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• 2006

This article aims at analysing the reality of banks' liability resulting from the breach of contract on its part to keep the business secrecy with the supplier in the transferable credit, focusing on a English decision, Jackson v. Royal Bank of Scotland [2005] UKHL 3. In this case, the applicant, 'Econ', had purchased various varieties of pre-packed dog chews in bulk through 'Sam'(lst beneficiary) from 'PPLtd'(2nd beneficiary) in Thailand, using a transferable letter of credit issued by 'RBank'. 'Sam' charged a tremendous amount of mark-up on each transaction and it had not been disclosed to 'Econ', although the identity of 'PPLtd' was revealed to 'Econ' by various documents. However, 'RBank' made an unfortunate error to send an completion statement and other documents including 'PPLtd.'s invoice to 'Econ' instead of to 'Sam'. The effect of the Bank's error was to reveal to 'Econ' the substantial profit that 'Sam' was making on these transactions. CEO of 'Econ' was furious and, as a result, decided to cut 'Sam' out of its importing system and terminated their relationship. 'Sam' sued 'RBank' for damages to recover the loss of profits which could have been possibly made, if the information on the mark-up would not have been exposed to 'Econ'. The House of Lord held that 'RBank' was in breach of its duty of confidence, so 'Sam' was entitled to recover damages on a decreasing scale over 4 years, since there was no specific undertaking from the letter of credit.

• 무역상무연구
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• 제41권
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• pp.25-50
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• 2009

In this article, I have reviewed the definition of international mercantile customs, their preferential application, the developing status of the credit practice, the effectiveness and relationship of the international standard banking practices, e.g. UCP 600 and ISBP 2007, ISP98, URR 725, eUCP 1.1. and the like, established by the International Chamber of Commerce (ICC). It is important to emphasize that the autonomous agreements between the credit parties and the international practice on the credit transaction are respected above all because of the special nature of its transaction. When we want to apply to a letter of credit by the international rules - UCP 600, ISP98, URDG, URR 725 and eUCP 1.1, we must indicate expressly in the text of the credit that it is subject to the respective rule. But the International Standard Banking Practice, 2007 revised by the ICC is applicable to without its indication in case of the UCP 600 credit. On the other hand, the UN Convention on Guarantees and Standby Credits applies to an international undertaking referred to in its article 2, (a) if the guarantor/issuer is in a Contracting State, or (b) if the rules of private international law lead to the application of the law of a Contracting State, unless the undertaking excludes the application of the Convention. And this Convention applies also to an international credit not falling within its article 2, if it expressly states that it is subject to this Convention.

• 무역상무연구
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• 제17권
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• pp.7-35
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• 2002

In many international financing transactions Korean companies are required to issue a guarantee. Thus far, however, legal issues on international guarantees have not been fully discussed in Korea. This is partly because most of the international guarantees are governed by a foreign law such as English law or the laws of the State of New York. In this articles the author examines major concepts or terms and conditions of a typical international guarantee, e.g., language on consideration, primary obligor, joint and several guarantee, unconditional and irrevocable guarantee, continuing guarantee, right of subrogation, representations and warranties, covenant or undertaking, currency indemnity, assignment, participation, governing law and jurisdiction clause, etc. For reference, standard forms of a guarantee and a standby letter of credit are attached to the article. In examining the terms and conditions, the author compares them with similar or equivalent concepts under Korean law. The author further discusses some Korean law issues that may arise under international guarantees governed by a foreign law. These issues include the application of the ultra vires doctrine under Article 34 of the Civil Code of Korea, the validity of an international guarantee which a Korean company has issued in violation of the guarantee ceiling set under Article 10 of the Law on Monopoly Regulation and Fair Trade of Korea and the validity of an international guarantee which a Korean party has issued in violation of the Foreign Exchange Transaction Law. In addition, the author discusses some issues under a so-called independent guarantee and a standby letter of credit. In this regard, reference is made to the Uniform Rules for Demand Guarantee (URDG), International Standby Practices (ISP98) and the Convention on Independent Guarantees and Stand-by Letters of Credit adopted by the United Nations in 1995. Finally, the author examines major terms and conditions of typical comfort letters and discusses some legal issues, such as the binding force of the comfort letter. In dealing with the issues the author underscores that to the extent the issues are not properly dealt with by an international norm such as Uniform Customs and Practice for Documentary Credits or ISP 98, the issues must be analyzed by reference to the governing law of the relevant instrument.

• 한국중재학회지:중재연구
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• 제19권3호
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• pp.161-178
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• 2009

This article focuses on the enforceability of arbitration agreements m the dispute of standby letter of credit, especially with the case analysis of the leading case from the U.S. Bankruptcy Court. In Nova Hut a.s. v. Kaiser Group International Inc. case, while the underlying contract contained an arbitration clause, a guarantee to assure contractor's performance did not contain an arbitration clause. Nova Hut drew on the standby for the Contractor's failure to deliver contractual obligations. Against the Kaiser's action under US Bankruptcy law, Nova Hut moved to stay the proceedings pending arbitration, to compel arbitration, and to dismiss the complaint. The US Bankruptcy Court for the District of Delaware denied Nova Hut's motions. On appeal, Kaiser argued that it was not subject to arbitration since it was not a party to the contract. It also argued that Nova Hut had waived its right to arbitration by filing a proof of claim in the bankruptcy proceeding and commencing legal actions in other countries. The appeals court noted that in order to avoid arbitration on those grounds prejudice must be shown. It indicated that because there was no long delay in requesting arbitration and no discovery conducted m the course of litigation, the Kaiser could not demonstrate actual prejudice on the part of Owner. In light of public policy favoring arbitration, the nature of the claims in the parties' agreements, Kaiser's conduct in embracing the agreements, and their expectation of benefit, the appeals court ruled that the doctrine of equitable estoppel applied in requiring the Parent to arbitrate.

• 동아시아경상학회지
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• 제9권3호
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• pp.15-28
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• 2021

Purpose -In the credit transaction, the issuing bank must examine the documents to pay the credit amount. In order to smoothly execute the credit transaction, document review is a key element, so the 5th revised credit unification rule specifically defines the document review procedure. Research design, data, and methodology - The document review procedure specified in the UCP Rules can be largely divided into the document review period and the rejection procedure for inconsistent documents. First of all, confusion was caused by the ambiguous regulation.. Result - With regard to the document review period, in the actual credit transaction, the issuing bank often negotiates with the issuing client about the waiver of the document inconsistency. Next, in the process of notifying the rejection of inconsistent documents, the issuing bank shall send the rejection notice. Conclusion - This study suggests that the requirement to list all inconsistencies makes it impossible for the issuing bank to further notify the refusal, thereby limiting the right to defend against inconsistencies not listed in the first refusal notice and consequently having the effect of matching them. In addition, the issuing bank's rejection notice is closely related to the beneficiary's exercise of the right to replenish documents.

• 항공우주정책ㆍ법학회지
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• 제4권
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• pp.65-85
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• 1992

The air waybill is supposed to be made out by the consignor. If the carrier makes it out, he is deemed, subject to proof to the contrary, to have done so on behalf of the consignor. The air waybill shall be made out in three original parts. The first part shall be marked "for the carrier", and shall be signed by the consignor. The second part shall be marked "for the consignee", it shall be signed by the consignor and by the carrier and shall accompany the goods. The third part shall be signed by the carrier and handed by him to the consignor, after the goods have been accepted. According to the original Warsow Convention article 8, the air waybill must contain 17 particulars or items. However, the Hague Protocol reduced to three the number of particulars required to appear on the air waybill. Only one item is obligatory, namely, the notice that the carriage is subject to the rules of the Warsaw Convention. The absence of the air waybill entails unlimited liability of the carrier because it deprives him of the right to avail himself of the provisions of the Warsaw Convention which exclude or limit his liability. The consignor shall be liable for all damages suffered by the carrier or any other person by reason of the irregularity, incorrectness or incompleteness of the particulars and statements in the air waybill. Although the contract of the carriage of goods by air is not a formal contract, the document of carriage is issued. The issue of air wayhill is not essential for the existence or validity of the contract, but serves merely as a means of proof. The Hague Protocol has lessened the consequences of the carrier's neglect to faithfully accomplish the required formalities. Henceforth, these formalities no longer constitute legal obligations. The air waybill is the consignment note used for the carriage of goods by air. It is often called an air consignment note and is not a document of title or transferable/negotiable instrument. It is basically a receipt for the goods for despatch and is prima facie evidence of the conditions of carriage. Each of the original parts of the air waybill has evidential value and possession of his part is a condition for the exercise by the consignor or cosignee of his rights under the contract of carriage. Oveall, it is an usage that under a documentary letter of credit, the consignee on the air waybill is the opening bank of the letter of credit, and the notify party is the importer who applied for the letter of credit. In Korea there is an usage as to process of cargo delivery in air transportation as follows: The carrier carries the cargo into the bonded area of the airport and gives both the notice of arrival of the cargo and the consignee's air waybill to the notify party who is the importer. Then the notify party obtains the Letter of Guarantee from the opening bank in exchange for reimbursing the amount of the letter of credit or tendering the security therefor to the opening bank. The notify party then presents this document to the customs authorities for the process of customs clearance. The opening bank becomes a consignee only to ensure repayment of the funds it has expended, and the only interest of the opening bank as consignee is the reimbursement of the money paid to the exporter under the documentary letter of credit. Just as the bill of lading in maritime law, the air waybill has always been considered negotiable although the Warsaw Convention does not emphasize this aspect of negotiability. However, the Hague Protocol article 4 corrected the situation by stating that "nothing in this Convention prevents the issue of a negotiable air waybill." This provision officially recognizes that the air waybill must meet the needs of the present day business circles by being a negotiable instrument. Meanwhile, Montreal Additional Protocol no. 4 has brought important changes. Registration by computer is acceptable and the parties to the contract of carriage are allowed to replace the air waybill with a receipt for the goods. In conclusion, as the Warsaw Convention has not details of provisions relating to the issuing of the negotiable air waybill, it is hoped that there should be supplement to the Warsaw Convention and establishment of international commercial usage with regard to the negotiable air waybill.

• 한국중재학회지:중재연구
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• 제14권1호
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• pp.29-60
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• 2004

Recently stand-by credits are using as surety devices in various global business transactions including sale of goods. Stand-by credits have lots of merits but simultaneously have high possibility of improper demand by the beneficiary due to the characteristics of the documents required. So so-called fraud rule has developed as a solution to the improper demand in letter of credit transactions. And the actual way of the fraud rule is the injunction by the competent court. The purpose of this article is to examine the applicability of the injunction in stand-by credit transactions by means of case studies. For this purpose, the author examined the concept of the injunction, necessity of the injunction in stand-by credit transactions and the cases of injunction granted and injunction denied. Firstly, the courts have legal standard of the application of injunction due to the legislation of the relative articles in the United Nations Convention on Independent Guarantees and Stand-by Letters of Credit and the Uniform Commercial Code. Secondly, the courts have taken a negative attitude granting injunction in order to observe the independence principle. Thirdly, the courts have a tendency to grant injunction when the demand has no conceivable basis and the applicant will suffer irreparable injury without injunction. Finally, like the saying 'prevention is the best cure', the applicant always pays attention with reasonable care before improper demand by the beneficiary.