• Journal of Korea Trade
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• 제24권2호
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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.

• 무역상무연구
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• 제61권
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• pp.191-211
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• 2014

This paper intends to study some problems in the application of UCP 600 in the international trade transactions with China. Generally speaking, China complies with UCP 600 well. Nevertheless, there are some problems in the application of UCP 600 in China owing to the difference in law and practices. There are some problems in the application of UCP 600 in China owing to the difference of practices under Bills of Exchange Act and The Provisions of the Supreme People's Court on Some Issues Concerning the Trial of Cases of Disputes over Letter of Credit. The Act insists on the formal requirements, the consistency between a letter amount and a figure amount, the unconditional payment character of bills of exchange. The Provisions include the recognition of revocable credits, the difference of standard in examining documents, the difference in the treatment of issuing banks in relation to discrepant documents. These aforesaid matters of the Act and the Provisions are inconsistent with the practices under the UCP 600. There are two main problems in the operation of letters of credit in China. One is the lack of concerned parties' practice knowledge in relation to letters of credit in China. The other is the inactive stance of nominated banks in China. There are two main problems in relation to judiciary institutions in China. First, judges in China tend to abuse the injunctions owing to the lack of understanding in relation to letters of credit. Secondly, there are inconsistency in the court ruling in China.

• 한국중재학회지:중재연구
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• 제30권3호
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• pp.3-19
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• 2020

With the advent of the Free Trade Agreement between Korea and the U.S. and an increase in trade volume between the two countries, the possibility of commercial disputes has escalated among international merchants. It has been well-known that arbitration as an alternative dispute resolution is an efficient way to resolve international commercial disputes. When arbitral awards are enforced in the judicial system, the court will inevitably have to be involved with the enforcement procedures. The court is a typical legal entity to confirm arbitral awards. Through a confirmation process, the winning party obtains the same legal status of final judgment rendered by the court. However, a winning party in arbitration will have to overcome a legal hurdle in the enforcement process of arbitral awards. This article aims to investigate how the courts control the arbitration practices and what the basic legal issues in the enforcement of arbitral awards are. The US Federal Arbitration Act is investigated, while relevant cases are reviewed and updated for legal analysis.

• 무역학회지
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• 제44권6호
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• pp.231-246
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• 2019

Circumvention refers to the situation in which exporters try to circumvent import restrictions by setting up factories in third countries and assembling and producing parts locally. Circumvention dumping eliminates the impacts of existing anti-dumping measures, and major countries are introducing anti-circumvention dumping laws to address this problem. If the act of the exporting country is recognized as a circumvention dumping activity, anti-dumping duties are applied retroactively to the imported goods or components. Evasion is an act of importation that results in the reduction or non-application of cash deposits, securities, or anti-dumping or countervailing duties, in a manner that is substantive or false, substantive or omission. In this article, we reviewed the contents and examples of the anti-circumvention measures by the US Department of Commerce (DOC), the International Trade Commission (ITC), and the Anti-Evasion measures by the CBP. The CBP examples show how much inference can be made about which parts of the CBP's investigations, and in what ways. The enactment of the EAPA created an environment in which the role of the CBP was directly guaranteed, and it was possible to apply adverse inferences to those who did not respond to requests for information, resulting in stronger CBP's authority. Therefore, it is advisable for Korea to examine the introduction of domestic laws, such as the bypass anti-dumping system, in order to cope with unfair trade practices that undermine and neutralize the effects of anti-dumping measures.

• 무역상무연구
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• 제54권
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• pp.145-166
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• 2012

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises "in connection with"a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.

• 한국프랜차이즈경영연구
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• 제2권1호
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• pp.119-133
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• 2011

본 연구는 이론적 실무적 상황을 감안할 때 가맹계약에 대한 기본개념을 정립하고 가맹계약과 관련된 실무적 사항에 대한 논의의 범위를 확정하고 프랜차이즈 거래의 실태와 공정거래위원회의 법 적용 사례를 통해 불공정거래행위의 위법성기준을 분석하여 프랜차이즈 유관기관, 프랜차이즈 거래자, 관련소비자 등 모두에게 프랜차이즈 거래의 법적안정 효과에 기여함을 목적으로 한다. 결과적으로 가맹사업에서는 불공정성을 판단하는데 있어서 가맹사업법상 예외 규정을 적용하더라도 필요충분조건을 모두 포함하지 않으면 위법성을 조각할 수 없고, 위법성을 회피하는 절차를 거쳤다 하더라도 내용적으로 타당하지 않으면 위법성 조각될 수 없다.

• 통상정보연구
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• 제15권1호
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• pp.287-307
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• 2013

각 국가의 부패행위방지를 위한 제도적 혹은 법적인 노력은 국내차원을 넘어서 국제통상과 국제비즈니스에서도 지속적으로 증가하고 있다. 그 대표적인 예가 미국의 연방법인 해외부패방지법(FCPA)이다. 지난 10년간 미 법무부는 해외부패방지법의 관할권을 끊임없이 확장하여 이제는 미국증권거래소에 등록된 한국기업도 그 영역 안에 들어가게 되었다. 또 다른 예는 투명성을 다룬 한미 FTA 협정문 제 21 장중에서 특히 부패방지에 대한 조항인 제 21.6 조다. 한미 FTA로 인해 우리 기업의 대미수출뿐만 아니라 미국 내 법인설립 및 대미투자도 크게 증가할 것을 예상하면 앞으로 더 많은 한국 기업이 미국 해외부패방지법이나 한미 FTA 제 21.6 조의 관할권에 들어갈 것으로 전망된다. 미국 해외부패방지법과 한미 FTA 제 21.6 조는 부패방지라는 공통된 목적이 있으나 그 내용에 있어서 유사점과 차이점을 보인다. 따라서 본 연구는 두 가지 법을 비교분석하여 우리 기업의 부패행위방지를 위한 가이드라인의 초석 마련에 기여하는 것에 그 목적을 둔다.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.57-75
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• 2007

Ever since franchising emerged in the industry of distribution, it has been growing explosively in the U.S.A. and all other countries as well. It is a method of expanding a business by licensing independent businessman to sell the franchiser's products and/or services or to follow a format and trade style created by the franchiser using the franchiser's trade marks and trade names. Franchising is a form of business that touches upon many different areas of law including, but not limited to, general contract law, general principles of commercial law, law of intellectual property, competition law, fair trade practices law and other industry specific laws e.g., the Fair Practices in Franchising Act in Korea. Arbitration is a long established, legally recognized procedure for submitting disputes to an outside person(s), mutually selected by the parties, for a final and binding decision. Despite its merits as an alternative dispute resolution, it has been criticized, on the other hand, particularly by franchisees' attorneys on the ground that even though it is required to protect the franchisees against the enforcement of pre-dispute arbitration agreements because of the franchisees' paucity of bargaining power vis-a-vis the franchiser, arbitration cannot afford it. Until recently, however, little has been written about the legal issues pertaining to franchise agreement and arbitration clause contained therein in Korea. This treatise reviews the cases and arguments in relation to the subject especially of the U.S.A., which have been accumulated for decades. The issues addressed herein are the pre-emption by the FAA, the disputes to be arbitrated, the selection and qualification of arbitrators, the place of arbitration hearings and the evidentiary rules applicable, the expenses of arbitration, theory of fiduciary duty and the like, all of which are relevant to franchise agreement.

• 무역상무연구
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• 제69권
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• pp.349-370
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• 2016

This thesis examines the problems faced in the electronic bill of lading for which improvements are necessary, and suggests various ways of overcoming those problems. First, to build a negotiation system for electronic B/Ls, active participation from related parties in addition to the government support is essential. Second, electronic B/Ls cannot be utilized within a short period of time in current commercial practices. Third, there should be infrastructure which connects all parties of international commerce through an electronic system. Fourth, instead of promoting mutual recognition through international treaty, there should be a plan which legally specifying mutual recognition between certification authorities. Fifth, it is needed to ease the strictness of electronic signature to promote the global negotiation of electronic B/Ls. Lastly, in prima facie weight of evidence, there was a significant difference with the Rotterdam Rules even in comparison with the Commercial Act which was amended with the significantly advanced rules on electronic B/L. He believed there should be a discreet consideration on these matters at the revision of the Commercial Act. For this, the government has to provide support more aggressively with more interest and commitments.

• 한국중재학회지:중재연구
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• 제31권3호
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• pp.69-89
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• 2021

General lawsuits can be chosen as a method of resolving patent disputes. However, a significant amount of time and money is wasted on litigation until the dispute is resolved. The Intellectual Property Framework Act in Korea requires the government to simplify litigation procedures and improve litigation systems to resolve intellectual property disputes quickly and fairly. As a result, accurate and timely resolution of patent disputes is given importance by the Korean government. Interest in arbitration as an alternative method of dispute resolution is growing. Although dispute resolution through arbitration is effective, the issue of resolving patent disputes through arbitration can lead to the arbitrability of patent disputes. It is therefore necessary to examine arbitrability of patent contracts and validity disputes. Korea has made efforts to reflect the model arbitration law of the United Nations Commission on International Trade Law for quick judicial resolution of patent disputes. Korea has also strengthened related systems for alternative resolutions. However, improving the arbitration system will necessitate a thorough examination of the systems and practices of the United States which is the country in the forefront of intellectual property. This paper examines the arbitrability of Korea's patent dispute and makes recommendations for more efficient dispute resolution system changes.