• Journal of Arbitration Studies
• /
• v.8 no.1
• /
• pp.323-352
• /
• 1998

Documentary letters of credit including standby letters of credit are governed by the independence or abstraction rule and the doctrine of strict compliance. Since the former rule requires the issuing bank to honor the drafts regardless of the defective performance of the underlying contract, the applicant(the customer) will be without a remedy if he is unable to make himself whole by litigation on the underlying contract. Therefore, the applicant is exposed to a risk much higher than in the commercial letters of credit. The Uniform Customs and Practice for Documentary Credit(UCP) has no provisions allowing legal relief for the applicant on the abuse of L/C by unscrupulous beneficiary, but UCC ${\S}5-114$ has provision allowing injunctive relief for the applicant. In this paper, I attempted to clarify certain standards of injunctive relief available for the customer in the credit. When there is fraud in the L/C transaction by any of the parties concerned, we must weigh the principle of independence or abstraction and the fraud rules. According to banking practice and judicial precedence, we need not keep the principle of independence and abstaction even in fraudulent transaction and the bona fide sufferer must be protected. The purpose of this paper is to review the studies of Fraud rule and the Injunction and to suggest the applicable standards for the Injunction therory under letters of credit. Specially this paper analysed the following ; (1) the guideline for the fraud (exception) rule to the autonomy principle, (2) the appilcable standards of the Injunction, and (3) the implications on parties concerned in letters of credit transaction. Conclusively, the Injunction should be granted if (1) there is clear proof of fraud (2) the fraud constitutes fraudulent abuse if the independent purpose of L/C (3) irreparble injury might follow if injunction is not granted or the recovery of damages would be seriously endangered.

• Journal of Arbitration Studies
• /
• v.19 no.3
• /
• pp.179-198
• /
• 2009

This paper aims at assessing reasonableness for restraining the independence principle in the operation of documentary credit in case of the illegality appeared in the underlying transactions. It has been a major rule under the independence principle to keep the credit operation free from the defences made by the issuing bank and/or credit applicant with a view to prevent the payment as specified under the credit. And also, it is generally accepted in the international commercial community to examine a presentation to determine, on the basis of the document alone, whether or not the documents appear on their face to constitute a complying presentation. Even though these two essences are major rules in the credit operation, if a presentation is made with the documents forged or materially fraudulent, the issuing bank can refuse to pay the documents in respect of fraud rule based on fraud exception for which a court of appropriate jurisdiction would enjoin such honour. Now we have newly come to another situation to determine whether or not we have to apply the same as fraud rule which is applicable to the illegality in the underlying contract under the new conception of illegality principle based on illegality exception. English Commercial Court handled the illegality case under the case of Mahonia Ltd., v. JP Morgan Chase Bank in 2003 and Justice Colman decided that issuing bank can rely on illegality affecting a letter of credit as an excuse for failure to pay. This judgement brought about the acceptance of illegality principle based on illegality exception as a defence to payment under a letter of credit as far as the illegality concerned in the underlying transactions. It is noticeable that this case will affect our international commercial community more to rely on the illegality in the underlying transactions as a good issue to stop payment for the issuing bank in the L/C operation.

• Environmental and Resource Economics Review
• /
• v.9 no.2
• /
• pp.421-449
• /
• 2000

The objective of this paper is to examine whether it is feasible to introduce an crude oil futures contract on domestic commodity exchange in order to minimize the price risks of imported crude oil. In addition. this study suggests the policy issues to promote futures trading and the alternatives to use foreign energy compares the five criteria to evaluate the feasibility of crude oil futures trading on the domestic exchange. Related to the possibility of successful futures trading of imported crude oil on the domestic exchange, they are evaluated as follows: it is highly possible to succeed for the aspects of price volatility, potential market size or liquidity, and commodity homogeneity; but it is inappropriate for the aspects of deliverable amounts and market power or market structure. Therefore, it is concluded that trading a new futures contract for the underlying imported crude oil on the domestic exchange is inappropriate. For the policy issues and the hedging alternatives, first, it is urgent to establish an atmosphere for futures trading by promoting spot trading. Second, for the case of futures trading on the domestic exchange it is important to consider the simultaneous hedging of crude oil price and foreign exchange risks and mutual offsetting mechanism with major foreign exchanges. Third, for the case of futures trading on foreign exchanges it is reasonable to regard cooperation among concerned companies, government support for futures trading and direct participation into futures trading by the government.

• Journal of Software Assessment and Valuation
• /
• v.17 no.1
• /
• pp.1-9
• /
• 2021

In disputes involving contracts for work, most issues boil down a single, most crucial, underlying question: whether the agreed work was completed. The same applies to software development services, which are usually usually provided under contracts for work. In disputes arising from software development contracts, appraisal is commonly used to determine the completeness of the software in question. However, it is often difficult to ensure the objectivity of the appraisal. This study examines past cases involving the determination of software completeness to identify the method used in each case. Then, based on the findings, this study identifies issues requiring improvements to ensure objective determination of completeness.

• Journal of Arbitration Studies
• /
• v.14 no.2
• /
• pp.135-172
• /
• 2004

While doing business in China foreign companies occasionally find themselves embroiled in disputes with Chinese individuals, companies or the Chinese Government. There are three primary ways to resolve a commercial dispute in China are negotiation, arbitration and litigation. The best way of dispute resolution is negotiation as it is the least expensive method and the working relationship of both parties concerned in dispute. But negotiations do not always give rise to resolution. Arbitration is the next choice. Unless the parties concerned can agree to resort to arbitration after the dispute has arisen, the underlying contract namely, sales contract or separate agreement must show that disputes will be resolved by arbitration. Agreements to arbitration specify arbitration body and governing law. There are two Chinese government -sponsored arbitration bodies for handling cases involving at least one foreign party: China International Economic and Trade Arbitration Commission(CIETAC) and China Maritime Arbitration Commission(CMAC) for maritime disputes. Contracts regarding foreign companies doing business in China often designate CIETAC arbitration. CIETAC distinguishes between two kinds of dispute resolutions, foreign-related arbitration and domestic arbitration. For a dispute to be classified as foreign-related arbitration, one of the companies must be a foreign entity without a major production facility or investment in China. CIETAC has published rules which govern the selection of a panel if the contract does not specify how the choice of arbitration will be handled. CIETAC's list of arbitrators for foreign-related disputes, from which CIETAC's arbitrators must en chosen, includes may non-Chines arbitrators. But many foreign experts believe that some aspects of CIETAC needs to be improved. The purpose of this paper is to improve the understanding of arbitration in China, CIETAC by way of studying the current situation and improvement of international commercial arbitration in China.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.62
• /
• pp.113-132
• /
• 2014

Judicial decisions make it clear that in all CIF, CFR and FOB contracts, incorporation of charter party into sale contracts is the only effective way for recovery of demurrage in the context of sale contracts. The case law would appear to clarify a number of important issues: The words of incorporation in the sale contract play a vital role in determining the extent of the influence of the charter party principles over the sale contract. Hence, unless it is expressly provided otherwise, the courts tend to apply the charter party principles to the incorporated charter party provisions to the extent that they make sense in the context of sale contract, and that they do not undermine the underlying foundations of international trade law. In this respect the courts also take into account the factual background of the case with a view to objectively ascertaining the intention of the parties. The law is, however, less clear on the effects of the incorporated charter party provisions in sale contracts. There is still no straightforward answer to the question of to what extent the charter party law is applied to the incorporated charter party provisions in the context of sale contracts. The case law on this matter merely provides piecemeal solutions, and it is not possible to extract a general rule which will help interpretation of those charter party provisions which have not yet been subject to litigation or arbitration. Therefore, it should be noted that the parties would prepare Incorporation Clause in their sale contracts in reliance of the rules to achieve the desired results.

• Korean Institute of Interior Design Journal
• /
• v.25 no.3
• /
• pp.90-101
• /
• 2016

The Homeshare program, which was introduced in 2012, has been implemented with the purpose of reduction of housing costs for young students and economic support for the senior to prevent isolation and help themselves. Nonetheless, the program has not being activated and the research about it has not progressed well. Therefore, this study as a basic research of the program aims to analyze and evaluate the program in progress in district offices to push it forward. This study was undertaken on documentary research and interviews, which analyzed advanced researches and open materials from the websites of district offices. The interviews were conducted in 4 gu-district offices (Nowon-gu, Gwangjin-gu, Seodaemun-gu, and Seongdong-gu) and did interviews with officials in charge on July in 2015. The result of this study is as follows. First, the Homeshare is being activated around the university town, which has advantage of housing welfare aspects for young students and social welfare aspects for the senior. Second, the support structures of the Homeshare can be categorized as the gu-districts offices, local resources and different structures funded by the Seoul City. Third, the process of the Homeshare takes 5 steps consisted of advertisement, reception/counseling, matching, contract, follow-up management. Fourth, the matching makes it a rule to match the same gender considering safety. In the case of the participation of the official in charge, it has a advantage of solving problems that can occur when the matching, which can lead to smooth progress. Fifth, joint consultation is divided into the contract among participants and the contract between participants and the gu-district office. Sixth, the follow-up management takes rather passive approaches such as calls once or twice a month and visits when necessary. For the activation of the Homeshare, it is required to improve it through the various methods such as regular visits, satisfaction researches and so on. This study resulted from investigating and analyzing the Homeshare operation system between generations will be considered to be a reference to the underlying management.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.51
• /
• pp.359-389
• /
• 2011

The Rotterdam Rules, which was adopted in December 2008 by UNCITRAL, has underlying intention that it will provide uniform law for the international carriage of goods by sea and modernize transport law reflecting modern transport custom. However, it is also true that there are various conflicting views on the Rotterdam Rules. This article tried to analyze main controversial issues such as scope of application, basis of liability of the shipper and the carrier, exception th the volume contract, legal position of the freight forwarder, delivery of the goods from the both sides of view. The Rotterdam Rules exposes some problems in applying and interpreting the Rules as many people indicated. These problems, I think, mainly due to the extended scope of application and broader range of issues. However, I do not think that the Rotterdam Rules will serious affect to the international transport industry. Furthermore, it is unreasonable to expect perfect Rules satisfying every interests.

• Journal of Arbitration Studies
• /
• v.27 no.3
• /
• pp.77-94
• /
• 2017

The United States has used legal theoretical constructions such as equitable estoppel and the third party beneficiary under which non-signatories of an arbitration agreement can be bound to the arbitration agreement of others. The third party beneficiary theory has been used when a signatory defendant argues that a non-signatory plaintiff is bound by an arbitration agreement, or a non-signatory defendant argues that a signatory plaintiff is required to arbitrate the plaintiff's claims against the non-signatory. On the other hand, equitable estoppel has developed as two distinct theories. According to the first theory, if a non-signatory party knowingly accepted the benefits of an agreement, it can be estopped from denying its obligation to arbitrate. The second theory compels a signatory to arbitrate because of the close relationship between the entities involved and the fact that the claims were intimately founded in and intertwined with the underlying contract obligations.

• Journal of Korea Technology Innovation Society
• /
• v.7 no.3
• /
• pp.507-531
• /
• 2004

This study examines the underlying properties of compensation structures and empirically test the difference in a various aspects of the compensation structures of Korean technology imports. In particular, this study looks into the trends of technology licensing from abroad in Korea and analyze the patterns of compensation structures in terms of compensation type, contract period and royalty rate by licensor country, group of licensor countries, size of licensee companies and area of licensed technologies. By doing so, this paper investigates how compensation structures in international technology transactions are determined in Korea and draw implications from the process of discussion.