• 제목/요약/키워드: international principles

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국제상사계약(國際商事契約)에 관한 UNIDROIT 원칙(原則)의 의의(意義) (The Purposes of the UNIDROIT Principles of International Commercial Contracts)

  • 최준선
    • 무역상무연구
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    • 제12권
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    • pp.227-252
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    • 1999
  • In this Article the writer introduces the origin and preparation of "the UNIDROIT Principles of International Commercial Contracts". In May 1994 the Governing Council of the UNIDROIT gave its formal imprimatur to the UNIDROIT Principles and recommended their widest possible distribution in practice. After brief discussion of the establishment procedure of the UNIDROIT Principles the writer discusses the legal nature of the Principles as an international restatement of contract law. The UNIDROIT Principles has more flexibility than international convention. But it has deficit in the sense of legal stability. Also the scope of application of the Principles was discussed. It can be applied only to the international commercial contracts. It includes two basic principles in it's application, i. e. "commercial contracts" and "international contracts". For the rest of the Article the writer concentrates on the contents of the Principles and the basic ideas underlying the Principles from the point of view of the comparision between the UNIDROIT Principles and "the UN Convention on the International Sale of Goods" (CISG). The UNIDROIT Principles are only restatements and the CISG is an international convention. The application of the CISG is obligatory due to its nature as an international convention. In the contrary the possibility of the application of the UNIDROIT Principles is more flexible. The UNIDROIT Principles is a more comprehensive instrument than CISG. Therefore it can be applied to all kinds of international commercial contracts. In the contrary the CISG can be applied only to international sales contract. Since CISG only deals with contracts for the sale of goods, and the scope of the UNIDROIT Principles is much wider, no overlap can occur where contracts other than sales contracts are concerned. Rather the UNIDROIT Principles can supplement the CISG and the CISG also can be criteria in interpreting the UNIDROIT Principles. As the conclusion the writer summarizes the meanings of the UNIDROIT Principles and presupposed the futur perspectives of the Principles.

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UNIDROIT Principles 2010에 관한 소고 (A Study on the UNIDROIT Principles 2010)

  • 이시환
    • 무역상무연구
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    • 제51권
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    • pp.101-131
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    • 2011
  • The Governing Council of UNIDROIT at its 90th session adopted on 10 May 2011 the third edition of the Principles of International Commercial Contracts("UNIDROIT Principles 2010"). The UNIDROIT Principles of International Commercial Contracts first published in 1994 and in a second edition in 2004, are taken by legislators worldwide as a model for contract law reform and increasingly used in international contracting and arbitration practice, as well as by the courts to interpret and supplement the applicable domestic law. The UNIDROIT Principles are particularly useful to parties when negotiating and drafting international contracts. The new edition of the Principles, UNIDROIT Principles 2010, prepared by a group of experts from all over the world including representatives of numerous international organizations and arbitration centers. The UNIDROIT Principles 2010 contain new provisions on restitution in case of failed contracts, illegality, conditions, and plurality of obligors and obligees, while with respect to the text of the 2004 edition the only significant changes made relate to the Comments to Article 1.4.

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국제상사중재에서 UNIDROIT 원칙의 적용가능성에 관한 연구 (The Applicability of the UNIDROIT Principles as the "Lex Mercatoria" in International Commercial Arbitration)

  • 이대진;유병욱;오현석
    • 무역상무연구
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    • 제21권
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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.

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국제상사중재에서 UNIDROIT원칙(2004)의 적용과 전망 (The Application and Prospects of UNIDROIT Principles(2004) in International Commercial Arbitration)

  • 홍성규
    • 한국중재학회지:중재연구
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    • 제16권2호
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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.

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국제상사중재(國際商事仲裁)에서 UNIDROIT 원칙(原則)의 적용가능성(適用可能性) (The Applicability of he UNIDROIT Principles in Interactional Commercial Arbitration)

  • 오원석
    • 한국중재학회지:중재연구
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    • 제9권1호
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    • pp.161-182
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    • 1999
  • The purpose of this paper is to examine the applicability of the UNIDROIT Principle in international commercial arbitration. For this purpose, I have studies the basic two characters of this Principles: One is of general rule(principle); Another is of international and commercial character. According to CISG, questions concerning matters governed by the CISG which are not expressly settled in it are to be settled in conformity with the general principles, so this Principles will cover many questions which are not expressly settled in the applicable law, by gap-filing, analogy or usage. In the preamble of this Principles, there are five cases in which the Principles shall be applied or may be applied. If the disputes are submitted to the any national court, the application of this Principles would be restricted because of the mandatory rules of national, international or supranational origin. But the disputes are submitted to arbitration, the arbitrator would have more discretional powers to apply the Principles than the judge. The reason is that in the arbitration, the arbitrators do not bear obligation to act in conformity with the law applicable by virtue of the rules of rules of private international law. I also examined the applicability of the Principles in cases which there are no mentions in preamble: When the international arbitrators choose the Principles; When the arbitrators decide ex aequo et bono; When the both parties have not chosen the governing law; When there are gaps in domestic law chosen by the parties; When the applicable domestic law is insufficient. In all these cases, the Principles may be applied more easily and conveniently in arbitration than in litigation. Thus to envisage the application of this Principle in international arbitration, first both parties in international commercial contracts should incorporate this Principle as a governing law in their contracts, and second, the arbitrators should try to apply this Principles in their arbitrations by choice, analogy, general principles or usage.

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"UNIDROIT Principles 2004"의 변경(變更).신설내용(新設內容)의 개관(槪觀) (Outline of the Additions and Amendments in UNIDROIT Principles 2004)

  • 오원석;심윤수
    • 무역상무연구
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    • 제25권
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    • pp.41-71
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    • 2005
  • "UNIDROIT Principles 2004" focused on an enlargement rather than a revision. An additional Section or Chapter so to speak, which are about, the Authority of a Agents, Third Party Rights, Set-off, Assignment of Rights, Transfer of Obligations and Assignment of Contracts, and Limitation Periods have been added, while the only change of substance made to the 1994 Edition, apart from two paragraphs in the Preamble, and three new provisions in Chapter 1 and 2 which are necessary to adapt the Principles to the needs of electronic contracting. The Principles which have the nature of the restatement of international uniform laws (for example CISG) are continuous exercise. Therefore we should note whether in the future our concerns would be on a additional topics on a improvement of the current text by monitoring the reception of the "UNIDROIT Principles 2004" in practice, and the application by contracting parties. The purposes of the Principles may be classified into three ; the rules of law governing the contract, means of interpreting and supplementing international uniform law or domestic law, or models for national and international legislator. Among them, the function of governing law may be applied by the express choice by the parties or by the implied choice like "general principles of law" or "les mercatoria", and it may be applied in the absence of any choice of law by the parties. Among there importance functions, this writer would like to emphasize the function to supplementing international uniform law instruments. The reason is that the CISG which has been established as an international uniform sales act and to which our country would be a contracting State from March, 2005, needs a lot of gap-filling. For this purpose it is advisable the parties to insert following provisions in their contract. "This contract shall be governed by the CISG, supplemented when necessary by the UNIDROIT Principles 2004" Thus success in practice of the UNIDROIT Principles over the last then years has surpassed the most optimistic expectations. It is hoped that the 2004 Edition of the UNIDROIT Principles will be just as favorably received by legislators, business persons, lawyers, arbitrators and judges and become even better known and more widely used throughout the World.

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The Use of the UNIDROIT Principles as Neutral Law in Arbitration

  • Gabriel, Henry Deeb
    • 한국중재학회지:중재연구
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    • 제23권3호
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    • pp.39-59
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    • 2013
  • This article discusses the use of the UNIDROIT Principles of International Commercial Contracts in international commercial arbitration. Because the Principles are designed specifically for cross-border commercial transactions, the use of the Principles avoids many of the legal rules that would govern from otherwise applicable domestic law that do not reflect the expectations of parties in international trade.

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"UNIDROIT Principle 2004" 의 변경.신설내용(變更.新設內容)의 개관(槪觀) (Outline of the Additions and Amendments in UNIDROIT Principles 2004)

  • 오원석
    • 한국무역상무학회:학술대회논문집
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    • 한국무역상무학회 2004년도 제32회 산학협동 세미나
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    • pp.9-40
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    • 2004
  • "UNIDROIT Principles 2004" focused on an enlargement rather than a revision. An additional Section or Chapter so to speak, which are about, the Authority of a Agents, Third Party Rights, Set-off, Assignment of Rights, Transfer of Obligations and Assignment of Contracts, and Limitation Periods have been added, while the only change of substance made to the 1994 Edition, apart from two paragraphs in the Preamble, and three new provisions in Chapter 1 and 2 which are necessary to adapt the Principles to the needs of electronic contracting. The Principles which have the nature of the restatement of international uniform laws (for example CISG) are continuous exercise. Therefore we should note whether in the future our concerns would be on a additional topics on a improvement of the current text by monitoring the reception of the "UNIDROIT Principles 2004" in practice, and the application by contracting parties. The purposes of the Principles may be classified into three ; the rules of law governing the contract, means of interpreting and supplementing international uniform law or domestic law, or models for national and international legislator. Among them, the function of governing law may be applied by the express choice by the parties or by the implied choice like "general principles of law" or "les mercatoria", and it may be applied in the absence of any choice of law by the parties. Among there importance functions, this writer would like to emphasize the function to supplementing international uniform law instruments. The reason is that the CISG which has been established as an international uniform sales act and to which our country would be a contracting State from March, 2005, needs a lot of gap-filling. For this purpose it is advisable the parties to insert following provisions in their contract. "This contract shall be governed by the CISG, supplemented when necessary by the UNIDROIT Principles 2004" Thus success in practice of the UNIDROIT Principles over the last then years has surpassed the most optimistic expectations. It is hoped that the 2004 Edition of the UNIDROIT Principles will be just as favorably received by legislators, business persons, lawyers, arbitrators and judges and become even better known and more widely used throughout the World.

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국제물품매매계약에 있어서 상관습법(Lex mercatoria)의 발전과 전개, 그리고 향후 과제 - CISG와 PICC 원칙을 중심으로 - (The Development and Application of Lex Mercatoria in the international commercial transaction : Focus on CISG and PICC Principles)

  • 정재우;이길남
    • 무역학회지
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    • 제41권5호
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    • pp.15-39
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    • 2016
  • 본 연구는 국제무역거래의 법적 뒷받침인 상관습법을 알아보고 어떻게 상관습법이 국제무역거래에서 영향력을 행사하는지를 알아보고자 하였다. 또한 상관습법은 크게 국제 협약, 모델법, 국제규칙으로 구분됨을 밝히고 국제물품매매계약의 대표적인 국제협약인 국제물품매매계약유엔협약(일명 'CISG')과 국제상사계약에 관한 UNIDROIT 원칙(일명 'PICC 원칙')을 적용 범위와 해석 원칙에 근거하여 살펴보았다. 논의 결과, 먼저 CISG는 국제물품매매계약의 통일과 조화를 위하여 기획된 제정법이며 PICC 원칙은 국제규칙에 불과한 것으로 파악되었다. 둘째, CISG와 PICC 원칙은 모두 양당사자의 의사 합의를 존중하였으며 합의에 의해 명시적으로 배제 가능하다. 셋째, CISG는 모든 나라가 가입이나 비준한 것은 아니기 때문에 CISG 적용상 지역적 불균형이 있다. 또한 CISG 체약국이더라도 각 국가의 국내법과 연결 정도에 따라 적용상의 차이가 있다. 지금 미국의 법에서는 약인이론, 사기방지법, 구두증거배제의 원칙이 있지만 CISG는 이런 규정이 없다. PICC 원칙은 계약에 준거법으로 활용되는 것이 아니라 계약의 준거법에 보충하거나 해석 시 고려되는 원칙에 불과하지만 향후에는 소송보다는 중재가 더욱 선호되는 것임을 감안하면 중재판정부에 의한 계약의 준거법 해석에 보완하는 역할로 더욱 힘을 발휘할 것으로 판단된다.

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해외투자(海外投資)와 지속가능발전 원칙 - 적도원칙(赤道原則)(Equator Principles)을 중심으로 - (How to Reflect Sustainable Development in Overseas Investment including Equator Principles)

  • 박훤일
    • 한국무역상무학회:학술대회논문집
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    • 한국무역상무학회 2006년도 제35회 하계 정기세미나
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    • pp.45-72
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    • 2006
  • The Equator Principles are a set of voluntary environmental and social guidelines for ethical project finance. These principles commit banks and other signatories to not finance projects that fail to meet these guidelines. The principles were conceived in 2002 on an initiative of the International Finance Corporation and launched in 2003. Since then, dozens of major banks have adopted the Principles, and with these banks among them accounting for more than three quarters of all project loan market volume the Principles have become the de facto standard for all banks and investors on how to deal with potential social and environmental effects of projects to be financed. While regarding the Principles an important initiative, NGOs have criticised the Principles for not producing real changes in financing activities and for allowing projects to go through that should have been screened out by the Principles, such as the Sakhalin-II oil and gas project in Russia. In early 2006, a process of revision of the principles was begun. The Equator Principles state that endorsing banks will only provide loans directly to projects under the following circumstances: - The risk of the project is categorized in accordance with internal guidelines based upon the environmental and social screening criteria of the International Finance Corporation (IFC). - For all medium or high risk projects (Category A and B projects), sponsors complete an Environmental Assessment, the preparation of which must meet certain requirements and satisfactorily address key environmental and social issues. - The Environmental Assessment report addresses baseline environmental and social conditions, requirements under host country laws and regulations, applicable international treaties and agreements, sustainable development and use of renewable natural resources, protection of human health, cultural properties, and biodiversity, including endangered species and sensitive ecosystems, use of dangerous substances, major hazards, occupational health and safety, fire prevention and life safety, socio-economic impacts, land acquisition and land use, involuntary resettlement, impacts on indigenous peoples and communities, cumulative impacts of existing projects, the proposed project, and anticipated future projects, participation of affected parties in the design, review and implementation of the project, consideration of feasible environmentally and socially preferable alternatives, efficient production, delivery and use of energy, pollution prevention and waste minimization, pollution controls (liquid effluents and air emissions) and solid and chemical waste management. - Based on the Environmental Assessment, Equator banks then make agreements with their clients on how they mitigate, monitor and manage those risks through an 'Environmental Management Plan'. Compliance with the plan is required in the covenant. If the borrower doesn't comply with the agreed terms, the bank will take corrective action, which if unsuccessful, could ultimately result in the bank canceling the loan and demanding immediate repayment. - For risky projects, the borrower consults with stakeholders (NGO's and project affected groups) and provides them with information on the risks of the project. - If necessary, an expert is consulted. The Principles only apply to projects over 50 million US dollars, which, according to the Equator Principles website, represent 97% of the total market. In early 2006, the financial institutions behind the Principles launched stakeholder consultations and negotiations aimed at revising the principles. The draft revised principles were met with criticism from NGO stakeholders, who in a joint position paper argued that the draft fails by ignoring the most serious critiques of the principles: a lack of consistent and rigorous implementation.

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