• Journal of Korea Trade
• /
• v.24 no.1
• /
• pp.59-81
• /
• 2020

Purpose - This study analyzes the scope of due diligence and risks of banks and K-Sure in trade finance covered by EFF focusing on Moneual case, one of the latest and biggest trade finance fraud cases in Korea. Also, we suggest anti-fraud measures in trade finance on the part of banks and K-Sure in order to give them a desirable way of due diligence and reasonable risk management of export insurance. Design/methodology - Based on Moneual case of trade finance fraud, this study employs the methodology of an extended literature review and analysis of court decisions. Findings - Seoul High Court of Korea failed to decide whether K-Sure was wholly obliged to pay the insurance against the banks' EFF claims, but issued a compulsory mediation order, judging that both the banks and K-Sure were responsible by 50:50. The court may have judged that both the parties had lacked their due diligence in the trade finance. It is quite difficult for trade finance providers to manually investigate whether the transaction is suspected of trade finance fraud, so digitalization of trade finance which can facilitate the prevention and detection of trade fraud needs to be realized quickly. Since there has been no international rule available for open account trade finance up till now, clearly stipulated EFF terms on the exporter's genuine export obligation might have protected K-Sure from the disaster. Originality/value - This study investigates the due diligence of the banks and K-Sure in Moneual case which few researchers have considered, to the best of our knowledge. This study also suggests several practical methods (including block chain) to prevent complicating trade finance fraud amid increasing use of an open account, and further offers reasonable risk management of EFF employing international factoring rule which is also related to problematic open account trade finance.

• Journal of Arbitration Studies
• /
• v.24 no.2
• /
• pp.137-160
• /
• 2014

These days, in line with the increase of opportunities in our country's firms to do transaction, large-scale M&A and investment with foreign firms incorporating arbitration clauses in the contracts have become general practice. Recently, Singapore has come to the fore as a place of arbitration and, particularly, Singapore International Arbitration Center (SIAC) was assessed as the favored international arbitration institution uniquely in Asia at the 2010 International Arbitration Survey: Choices in International Arbitration, along with the ICC, LCIA, and AAA/ICDR. Therefore, the country's firms need to understand properly the international arbitration procedure of Singapore. This study examines the international arbitration system of Singapore, focusing on the arbitration procedure of the SIAC. The Center revised arbitration rules twice in 2010 and 2013, and established the Court of Arbitration of SIAC in April 2013 for the first time in Asia in pursuit of stricter neutrality and promptness. It further seeks to run the arbitration procedure fairly by selecting a third country's people as an arbitrator, while its arbitration expenses are cheaper than those of the ICC. The study believes that for the country's international arbitration institutions such as the KCAB to jump forward as a world-class international arbitration institution, the Korean government should render positive support to them, learning from Singapore which does not spare any political and financial assistance to cultivate international arbitration institutions. On the other hand, KCAB should also try hard to improve in the aspects of neutrality, fairness, and promptness and to be selected as a trustworthy international arbitration institution by firms in Asian countries.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.61
• /
• pp.191-211
• /
• 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.

• Journal of Distribution Science
• /
• v.21 no.9
• /
• pp.115-121
• /
• 2023

Purpose: This study aimed to deal with disputes between the seller and the buyer in connection with the Letter of Credit (LC) in a sales contract. The Contracts for the International Sale of Goods (CISG) provides the rules on the fundamental breaches which can lead to termination of the sales contract but the CISG is not enough to govern issues arising from the LC disputes when the sales contract is not clear about the payment terms. This paper tried to find some solutions to the disputes by considering international rules, such as the Principles of European Contract Law (PECL). Research design, data and methodology: The methodology applied in this study was an analysis of some court decisions and extended literature review. Results: The study revealed that in contracts for the sale of international goods, the buyer was obliged to open an LC as manner of payment. If the buyer failed to open an LC or amend the terms of the LC, the seller could avoid the contract because this could deprive the seller's expected interest. Conclusions: Few studies in Korea have been comprehensively analyzed in terms of the obligations of regarding the LC with respect to the CISG in court cases. This study suggests safeguarding the buyer and seller when the LC is considered absolute or conditional.

• Journal of Arbitration Studies
• /
• v.33 no.2
• /
• pp.109-137
• /
• 2023

This paper reviews legal framework, characteristics and main contents of the 'Optional Rules for the Arbitration of Disputes Relating to Outer Space Activity' enacted by the Permanent Court of Arbitration (PCA) in 2011. Space activities, which began in the 1950s, are undergoing significant changes according to the international characteristics and development of science and technology. New Space and the space business will be the key factors driving these changes. However, the diversity of disputes caused by New Space space activities and the characteristics of each type of dispute must be considered together. This is because the space business can be maintained and developed by securing the effectiveness of dispute resolution. This paper identifies that the PCA Space Dispute Arbitration Rules have important legislative and policy significance in this respect. Specifically, in this paper, the international space law system, the draft convention of the International Law Association, and the PCA arbitration rules were introduced in an overview of the international dispute settlement system related to space activities. Afterwards, it examines that the systematic structure and some major contents of the PCA Space Dispute Arbitration Rules in detail. Based on this, the paper suggests some points of application of the PCA Arbitration Rules and the legislative policy implications.

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

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.67
• /
• pp.97-118
• /
• 2015

This study reviews the judgements by the Korean Supreme Court on the time of delivery of goods, as it depends on which bonded place the goods are kept for the purpose of the customs clearance. Thereafter, this study analyzes the Ocean Carrier's liability, when the cargoes are mis-delivered without the presentation of bill of lading in relation to the specific bonded place such as an independent bonded warehouse or a self-use bonded warehouse. Furthermore, considering that voyage charter is a kind of marine transport, this study also reviews whether or not the Court's judgements, which has been developed in respect of the carriage of affreightment, could be applied to voyage charter in respect of the time of delivery goods and the Ocean Carrier's liability for mis-delivery. Lastly, in the case that the substantial importer takes the goods from the independent bonded warehouse without the presentation of bill of lading after the customs clearance, it is noted that the Court has made the Ocean Carrier liable for the mis-delivery through the application of theory of double deposit contract. The position of the Court would be understandable in terms of the protection for the bona-fide holder of bill of lading, but this study reviews the limitation of liability as the device for the protection of the Ocean Carrier, considering the situation where the Ocean Carrier is somewhat unreasonably sacrificed under the bonded system provided for the convenience of substantial importer.

• Journal of Arbitration Studies
• /
• v.25 no.4
• /
• pp.77-95
• /
• 2015

CISG provides a uniform framework for contracts of sale of goods between parties whose places of business are in different States. In 2004 South Korea became the 63th State around world to adopt CISG. Starting next year CISG goes into effect as the law that governs the contracts for international sale of goods, in respect of which CISG displaces the existing domestic civil and commercial codes of Korea. By its provision Article 1(a), CISG applies directly between Contracting States without reference to private international law. As South Korea's biggest trade partners including China, the U.S. and Japan are also parties to CISG, the number of such direct applications continuously increases. Now it is estimated, though roughly, that CISG governs about two-thirds of Korea's import and export trade of goods. The private survey of the author shows that up to now in South Korea there are 39 court cases decided by the first instance courts, 29 cases by the appellate court and six cases by the Supreme Court of South Korea. In nearly all these cases, CISG applied directly. Furthermore, currently CISG is, in several respects, influencing upon the revision of Korean civil code which is designed to modernize it: The revised draft published in 2013 adopts the rules on the revocation of offers provided in articles 15 and 16, the rule on the termination of offers provided in article 17 and the rule on the time that an acceptance takes its effect provided in article 18 of CISG. More importantly, in accordance with the rules taken by CISG, the revision draft no longer requires the existence of fault or negligence on behalf of the breaching party in order for the aggrieved party to void the contract, and the revised draft denies the right of avoidance for trivial, not fundamental, breaches of contract.

• Journal of Arbitration Studies
• /
• v.14 no.1
• /
• pp.213-244
• /
• 2004

This article studied on international trade dispute of enforcement procedure of foreign arbitral awards at Korean Supreme Court, which is especially related to New York Convention article 5, The key points of most enforcement procedure were about public policy according New York Convention article 5, 2, b and New York Convention article 5, 1. Particularly, Judgement of public policy from Supreme Court represented that the recognition and enforcement of foreign arbitral award is to present and protect basic moral conviction and social order from spoiling, and not only domestic situation but also international stability of transaction should be taken into consideration in judging on recognition and enforcement of foreign arbitral award, which is construed under certain limitation. In this point, you should be understand the concept on refusal reasons in enforcing of foreign arbitral awards

• International Commerce and Information Review
• /
• v.8 no.1
• /
• pp.205-223
• /
• 2006

File sharing through P2P was decided as illegal according to Supreme Court of the U.S. and the Highest Court of Korea in 2005. Metro-Goldwyn-Mayer Studios Inc. et al. v. Grokster, LTD., et al. and Soribada v. Korea Association for Music Providers have the same ground for decision. P2P service company has vicarious liability for illegal file sharing of its customers. Balance between copyright protection and development of technology was considered in that decision. Programmer who will develop new program for free download and copyright holders who will exploit every measures to protect their right may compromise for their mutual benefits.