• 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.

• Korea Trade Review
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• v.41 no.5
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• pp.15-39
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• 2016

Over the past couple of decades, we can see the emergence of a new lex mercatoria. It consists of international conventions or treaty, model laws and international principles. And such new lex mercatoria is driven by the international institutions such as UNCITRAL, UNIDROIT and ICC. The international convention and international principles in the field of international commercial transaction are considered : UN Convention on Contracts for the International Sale of Goods(CISG) and The UNIDROIT Principles(PICC Principles). The former is the statue law for the latter, and the latter sometimes supports the former as an interpretation and supplementation of CISG. So, the purpose of this article is to evaluate and investigate the current status of CISG and PICC Principles in terms of application and interpretation principles. The results are as follows. First, PICC are used for the interpretation and supplementation of international law such as CISG, but CISG is a law, not a rule. Second, CISG and PICC Principles are not often chosen when parties chose the law governing their contract. The parties very often chose a national law ; the number of the parties choosing CISG and PICC Principles as a governing law was very low.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.117-136
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• 2007

Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the international private law and the international commercial arbitration. The purpose of this article is to make research on the party's autonomy principle for the international commercial arbitral awards. For this purpose ist to analyse regal issue the applicability of the lex mercatoria and the possibility of $d\acute{e}pe\c{c}age$ relating to the party autonomy. In this Article ist dealt with Art. 29 para. 1 of the Korean Arbitration Act in comparison with Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure. The Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure provides equally. "The arbitral tribunal shall decide the dispute in accordence with such 'rules of law' as chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules." The term 'rule of law' used to describe the applicability of the lex mercatoria and the possibility $d\acute{e}pe\c{c}age$. Unlike Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para.1 of the German Code of Civil Procedure. Act, Art. 29(1) of the Korean Arbitration Act provides that the arbitral tribunal shall decide the dispute in accordence with the 'law' chosen by the parties as applicable to the substance of the dispute. However the majority view in Korea takes the position that the term 'law' should be interpreted broadly so as to encompass 'rules of law' at UNCITRAL Model Law and the German Code of Civil Procedure.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.151-182
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• 2006

The International Institute for the Unification of Private Law (UNIDROIT) established UNIDROIT principles, which could be applicable as international unified rules. The UNIDROIT Principles plays the role of interpreting and complementing CISG and functions as a law applicable to international commercial disputes. As shown by cases of practical application so far, the principles are expected to be applied frequently to international commercial arbitration in the future. In the situation that there is no internationally unified judicature, it is necessary to promote rational dispute resolution and legal stability through arbitration by adopting the UNIDROIT Principles of Lex Mercatoria as a governing law of international commercial contracts. In conclusion, UNIDROIT principles, along with CISG, are expected to playa great role as the applicable law of international commercial contracts and as standards for resolving international commercial disputes.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.131-155
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• 2011

PICC executes its role as a useful lex mercatoria in the continuously increasing international trade to be adopted as the standard criterion of prevention or dispute resolution. When considering the fact that GISG has not presented results beyond expectation in the past due to hard laws and legal deficiency, PICC, which possesses interpretation and supplementation function, is considered undoubtedly useful particularly in international commercial arbitration. As observed in the previously mentioned analysis on cases accumulated in UNILEX, PICC application and Arbitral tribunal in international contract between parties possess considerably large claim possibility and the number of actual application cases is continuously increasing. The fact that PICC has been composed as maximum common measures of continental and common law systems by traditional comparative legal scholars familiar with international trade can function as the fundamental principle in future global trade activity and can also act as the model law for uniting contract laws of nations. In this aspect, PICC can be evaluated to have considerably achieved enactment purpose of previous intention. However, additional topics that had not been accepted in the revised edition of PICC remain as assignments requiring solution, such as analysis and acceptance problem of comparative law, PR of PICC unfamiliar even to the relative parties of international trade and application in international contract, and absorption problem as model law in various domestic laws.

• Korea Trade Review
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• v.44 no.6
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• pp.201-216
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• 2019

At present, there are various standards used as the governing law of contracts for establishing, implementing, and resolving disputes between the parties to international sales contracts, called "Forum Shopping." Uncertainty and increased transaction costs, which may arise from these various norms, may hinder the activation of international commerce. This study examines the process of enacting and examining various international unification norms that have emerged through international organizations to eliminate trade barriers caused by choice of governing law concerning parties involved in the international sale of goods. Issues regarding the positive and negative perspectives are discussed to identify obstacles to international unification norms. In particular, by comparing and analyzing the differences between the regulations of the CISG and PICC, the representative international unification norms on international sales contracts, the possibility of unification of the norms on international sales contracts are reviewed. Direction for the establishment of a single international regulation is presented for reducing the transaction costs and uncertainties in the international sale of goods.

• Journal of Arbitration Studies
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• v.33 no.2
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• pp.85-108
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• 2023

In international commercial arbitrations that arise from an international commercial contract, arbitral tribunals ruling on the merits of the arbitration apply the law governing the contract. The parties to contract are free to designate the law under the principle of parties autonomy. This paper examines this principle under the Korean Arbitration Act, and makes some legislative suggestions. For this purpose, this paper first discusses what is the scope of matters covered by the law governing the contract, what are the rules of conflict-of-laws for determining the law governing the contract, and what happens when the arbitral tribunal incorrectly applies the law governing the contract? Then, this paper further goes to examine issues such as the form of choice-of-law agreement, the explicit or implicit choice of law, the parties' ability to choose the rules of law including lex mercatoria, the change of choice-of-law agreement, the independence of choice-of-law clause.

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.33-46
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• 2014

Amiable composition is a means of dispute resolution based on the arbitrator's authority to base his decision on equity. Although this method has been used frequently in the last decades of the 20th Century, the number of the published awards by amiable compositeur arbitrators is getting lower and lower. The reason(s) for unpopularity of amiable composition should be sought in its very nature, in its relationships with other institutions such as arbitration in law, equity, ex aequo et bono arbitration, other means of dispute resolution and in its role in the development of the rules specific to international commerce. A brief look at the history of law shows that the concept of equity comes to the scene every time that the rigidity of the rules of law challenges the justice. This has been the case in the 20th Century with respect to international commercial law which was deprived of specific rules. The role of amiable composition has been to contribute to the development of the rules specific to international commerce. The progressive codification of such rules in the last decades is also owed to amiable composition, which has accomplished its mission in the evolution of these rules.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.127-151
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• 2016

UNIDROIT Principles of International Commercial Contracts(PICC) was published in 1994. PICC has been functioned as a guideline of international commercial contracts, an applicable law to govern a contract by the agreement of the parties to a contract, general principles of law and lex mercatoria. In addition, PICC has a role of interpreting or supplementing international uniform law instruments as well as domestic laws, and also has served as a model for national and international legislations. PICC has been accepted as a authoritative source of knowledge of international trade usages of international commercial contracts to the arbitral tribunal rather than domestic court because it excluded the characteristics of hard law at the drafting stage. This article dealt with the rule on gross disparity of validity which fall outside the scope of UN Convention on Contract for the International Sale of Goods(CISG), which has obtained a leading legal position of uniform law in international sales of good. In other words, PICC suggests a series of meaningful solutions to the issue of gross disparity of contract which is the most complicated among legal disputes occurring during the process of conclusion of contact and also extremely different and diverse between legal systems. This article covered the issue of gross disparity of contract at the conclusion of contact and suggested the legal basis of several rules related to the gross disparity by analysing gross disparity rule of PICC. Furthermore, this article suggested legal check points or implication as well as interpretation and evaluation on doctrine of laesio enormis and undue influence or unconscionability. This article also dealt with a comparative analysis with Principles of European Contract Law(PECL) and Common European Sales Law(CESL) which have important legal positions in the area of international commercial contract as well as in terms of close relationship to PICC by linking with recent court or arbitral tribunal rulings.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.147-169
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• 2009

This paper deals with disputes incurred from the CISG provisions in relation with the conformity of goods with a view to finding the general way of approach made by the court and arbitration tribunal in the case laws for the interpretation of CISG based on 6(six) cases thereon. Throughout this study, it has been noted that the German Supreme Court devoted most in creating the general principle of CISG interpretation in relation with national compulsory law of regulation applicable on the conformity of goods. It was New Zealand mussels case in which the German supreme court decided that the exporting country's compulsory law of regulation would be applied in determining the conformity of goods. Furthermore, German supreme court added that CISG does not place an obligation on the exporter to supply goods, which conform to all statutory or other public provisions in force in the import state unless the same provisions exist in the export State as well, or the importer informed the exporter about such provisions existing in the import state, or the exporter had knowledge of the provisions due to special circumstances. It is stipulated in CISG that the goods conform with contract if they are fit for the purpose for which goods of the same description would ordinarily be used. When questions arise concerning matters governed by the CISG that are not expressly defined in the CISG, the question is to be settled in conformity with general principles on which the convention is based. Only when such a general principle cannot be found may the tribunal turn to other sources such as UNIDROIT Principles, Principles of European Contract Law and Lex Mercatoria, etc. Interpretation of CISG should be autonomous, in the sense that it should not depend on principles and concepts derived from any national legal system. Even where a CISG rule is directly inspired by domestic law, the court should not fall back on its domestic law, but interpret the rule by reference to the CISG with a view to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.