• Title/Summary/Keyword: international principles

Search Result 794, Processing Time 0.028 seconds

A Study on the Legal Bases for the Gross Disparity under PICC (국제상사계약에 관한 일반원칙(PICC)하에서 현저한 불균형에 관한 법적 기준)

  • YOON, Sang-Yoon;SHIM, Chong-Seok
    • 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.

  • PDF

Arbitration of International Intellectual Property Disputes (국제지적재산분쟁의 중재)

  • Sohn, Kyung-Han
    • Journal of Arbitration Studies
    • /
    • v.17 no.2
    • /
    • pp.71-100
    • /
    • 2007
  • To promote the way of resolving the increasing disputes regarding international intellectual property by arbitration, we should overcome uncertainty thwarting the dispute resolution; i.e., whether a dispute regarding intellectual property would be an arbitrable subject, whether the arbitration agreement would be valid and enforceable, and whether the arbitral award could be recognized and enforced in a foreign country. This article is intended to seek how to promote and facilitate the resolution of international disputes regarding intellectual property by arbitration. This article in Chapter II will examine the characteristics of the IP disputes first. Chapter III of this article will study arbitrability of IP disputes. Then, Chapter IV will discuss the requirements, validity, and effectiveness of arbitration agreement of international IP disputes. The author will discuss the procedure of arbitration of the international IP disputes in Chapter V, and finally the recognition and enforcement of foreign arbitral awards thereon in Chapter VI. Due to the so called 'territoriality principle' in intellectual property, the international disputes thereof confront numerous procedural setback, e.g., jurisdiction, conflict of laws, the recognition and enforcement of foreign judgments or awards. To overcome such setbacks, I propose resolution of international IP disputes by one-step arbitration procedure through widely recognizing the arbitrability of IP disputes, and utilizing unnational nature of arbitration. In addition, I propose to set up the principles as to arbitration of the international IP disputes as the American Law Institute has formulated the principles for International Intellectual Property Litigations. By setting up these principles, I am certain it will be helpful to just and prompt resolution of international IP disputes which occur more frequently these days.

  • PDF

How to Reflect Sustainable Development, exemplified by the Equator Principles, in Overseas Investment (해외투자(海外投資)와 지속가능발전 원칙 - 프로젝트 파이낸스의 적도원칙(赤道原則)을 중심으로 -)

  • Park, Whon-Il
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
    • /
    • v.31
    • /
    • pp.27-56
    • /
    • 2006
  • Today's financial institutions usually take environmental issues seriously into consideration as they could not evade lender liability in an increasing number of cases. On the international scene, a brand-new concept of the "Equator Principles" in the New Millenium has driven more and more international banks to adopt these Principles in project financing. Sustainable development has been a key word in understanding new trends of the governments, financial institutions, corporations and civic groups in the 21st century. The Equator Principles are a set of voluntary environmental and social guidelines for sustainable finance. These Principles commit bank officers to avoid financial support to projects that fail to meet these guidelines. The Principles were conceived in 2002 on an initiative of the International Finance Corporation(IFC), and launched in June 2003. Since then, dozens of major banks, accounting for up to 80 percent of project loan market, have adopted the Principles. Accordingly, the Principles have become the de facto standard for all banks and investors on how to deal with potential social and environmental issues of projects to be financed. Compliance with the Equator Principles facilitates for endorsing banks to participate in the syndicated loan and help them to manage the risks associated with large-scale projects. The Equator Principles call for financial institutions to provide loans 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 IFC. - For Category A and B projects, borrowers or sponsors are required to conduct a Social and Environmental Assessment, the preparation of which must meet certain requirements and satisfactorily address key social and environmental issues. - The Social and Environmental Assessment report should address baseline social and environmental conditions, requirements under host country laws and regulations, sustainable development, and, as appropriate, IFC's Environmental, Health and Safety Guidelines, etc. - Based on the Social and Environmental Assessment, Equator banks then make agreements with borrowers on how they mitigate, monitor and manage the risks through a Social and Environmental Management System. Compliance with the plan is included in the covenant clause of loan agreements. If the borrower doesn't comply with the agreed terms, the bank will take corrective actions. The Equator Principles are not a mere declaration of cautious banks but a full commitment of lenders. A violation of the Principles in the process of project financing, which led to an unexpected damage to the affected community, would not give rise to any specific legal remedies other than ordinary lawsuits. So it is more effective for banks to ensure consistent implementation of the Principles and to have them take responsible measures to solve social and environmental issues. Public interests have recently mounted up with respect to environmental issues on the occasion of the Supreme Court's decision (2006Du330) on the fiercely debated reclamation project at Saemangeum. The majority Justices said that the expected environmental damages like probable pollution of water and soil were not believed so serious and that the Administration should continue to implement the project seeking ways to make it more environment friendly. In this case, though the Category A Saemangeum Project was carried out by a government agency, the Supreme Court behaved itself as a signal giver to approve or stop the environment-related project like an Equator bank in project financing. At present, there is no Equator bank in Korea in contrast to three big banks in Japan. Also Korean contractors, which are aggressively bidding for Category A-type projects in South East Asia and Mideast, might find themselves in a disadvantageous position because they are generally ignorant of the environmental assessment associated with project financing. In this regard, Korean banks and overseas project contractors should care for the revised Equator Principles and the latest developments in project financing more seriously. It's because its scope has expanded to the capital cost of US$10 million or more across all industry sectors regardless of developing countries or not. It should be noted that, for a Korean bank, being an Equator bank is more or less burdensome in a short-term period, but it must be conducive to minimizing risks and building up good reputation in the long run.

  • PDF

Use of Nuclear Power Sources in Outer Space and Space Law (우주에서의 핵연료(NPS)사용과 우주법)

  • Kim, Han-Taek
    • The Korean Journal of Air & Space Law and Policy
    • /
    • v.22 no.1
    • /
    • pp.29-54
    • /
    • 2007
  • Nuclear Power Sources(NPS) have been used since 1961 for the purpose of generating energy for space objects and have since then been recognized as particularly suited essential to some space operations. In January 1978 a malfuctioning Soviet nuclear powered satellite, Cosmos 954, re-entered the earth's atmosphere and disintegrated, scattering radioactive debris over a wide area of the Canadian Northwest Territory. This incident provided some reasons to international legal scholars to make some principles to regulate using NPS in outer space. In 1992 General Assembly adopted "Principles Relevant to the Use of Nuclear Power Sources in Outer Space". These NPS Principles set out certain legal and regulatory requirements on the use of nuclear and radioactive power sources for non-propulsive purposes. Although these principles, called 'soft laws', are not legal norms, they have much enfluences on state practices such as 1983 DBS Principles(Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting), 1986 RS Principles(Principles Relating to Remote Sensing of the Earth from Space) and 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of all States, Taking into Particular Account the Needs of Developing Countries. As far as 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space is concerned the main points such as free use of outer space, non-appropriation of celestial bodies, application of international law to outer space etc. have become customary international law binding all states. NPS Principles might have similar characters according to states' willingness to respect them.

  • PDF

Use of Nuclear Power Sources in Outer Space and Space Law (우주에서의 핵연료(NPS)사용과 우주법)

  • Kim, Han-Taek
    • The Korean Journal of Air & Space Law and Policy
    • /
    • no.spc
    • /
    • pp.35-58
    • /
    • 2007
  • Nuclear Power Sources(NPS) have been used since 1961 for the purpose of generating energy for space objects and have since then been recognized as particularly suited essential to some space operations. In January 1978 a malfuctioning Soviet nuclear powered satellite, Cosmos 954, re-entered the earth's atmosphere and disintegrated, scattering radioactive debris over a wide area of the Canadian Northwest Territory. This incident provided some reasons to international legal scholars to make some principles to regulate using NPS in outer space. In 1992 General Assembly adopted "Principles Relevant to the Use of Nuclear Power Sources in Outer Space". These NPS Principles set out certain legal and regulatory requirements on the use of nuclear and radioactive power sources for non-propulsive purposes. Although these principles, called 'soft laws', are not legal norms, they have much enfluences on state practices such as 1983 DBS Principles(Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting), 1986 RS Principles(Principles Relating to Remote Sensing of the Earth from Space) and 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of all States, Taking into Particular Account the Needs of Developing Countries. As far as 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space is concerned the main points such as free use of outer space, non-appropriation of celestial bodies, application of international law to outer space etc. have become customary international law binding all states. NPS Principles might have similar characters according to states' willingness to respect them.

  • PDF

A Study on the Principles of Good Faith under International Transaction -Focused on the CISG- (국제거래상 신의성실의 원칙에 관한 연구 - CISG를 중심으로 -)

  • Han, Nak-Hyun
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
    • /
    • v.46
    • /
    • pp.61-104
    • /
    • 2010
  • The purpose of this work aims to analyse the principles of good faith under international transaction with CLOUT and UNILEX cases. Article 7(1) CISG sets the stage for the interpretation by promoting a uniform approach using good faith and the international charter of the convention. In other words, article 7(1) defines the purpose and the principle of interpretation and is applied to the Convention as a whole. As such, it also includes article 7(2), which goes beyond the big picture and settles the problems of gap filling. It is also important to understanding that the mandate of the CISG is to look for a solution, which is not only restricted to interpretation but extends to solving a problem. The problem in this work is to find out how gap filling is achieved and, because of the autonomous mandate of interpretation, to explain and understand its relationship with domestic law. The solution to the interpretation of article 7(2) must be found within the four corners of the CISG. To restate, article 7(2) describes two situations where gap filling is needed. First, if the matter is governed by the Convention but not expressly settled, then a gap must be filled in conformity with general principles on which it is based. Second, if the matter is not covered then the gap must be filled taking domestic law into consideration. There are two reasons why a matter may not be covered by the Convention. First and most obviously, it has been specifically exclude from the sphere of Application by the CISG itself, such as validity in article 4. Second, changes in business methods will lead to gaps. The United Nations has established a service known as CLOUT. This contains abstracts of hundreds of selected decisions of both courts and arbitration tribunals. And UNILEX is cosponsored by the Italian Centre for Comparative and Foreign Law Studies and UNIDROIT Contract Principles. The cases are in abstract format, but, when available, the full text of the case in the original language is also supplied.

  • PDF

International Traders' Measures against Contract Disputes in International Transactions - Focusing on the Matter of Governing Law (국제무역계약상 분쟁에 대비한 무역실무자의 대응 - 준거법문제를 중심으로 -)

  • Heo, Hai-Kwan
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
    • /
    • v.45
    • /
    • pp.51-82
    • /
    • 2010
  • The "rules of private international law" or "conflict of law rules" work to determine the governing law, the law applicable to international contracts. These rules permit parties' autonomy to choose the law applicable to their contracts in cases of both litigations and arbitrations. In this regards, the present article examines parties' five options for the choice of the law governing their contracts, which the parties should consider when negotiating and drafting an international agreement. This means that parties in international contracting should check the contents of the law that they are to choose as the governing law before doing so. The first option is to submit the contract to its own law, which can be the safest and simplest solution generally. However this option is subject to the consent of the other party, and is not appropriate when the domestic law chosen contains mandatory rules strongly protecting the other party. Secondly, the option of choosing the other party's law is not preferable in general. Even though the other party is strong enough to succeed in insisting on applying its own law, the other party is advised to counter-offer a neutral solution by suggesting the application of a transnational set of rules and principles of international contract, such as Unidroit Principles. The third option to choose the law of a third country should be taken with the caution that it should be harmonized with either, in case of litigations, the international jurisdiction clause which makes the country chosen have the jurisdiction over the dispute arising under the contract, or, in case of arbitrations, the way of selection of the arbitrator who has good knowledge of the law chosen. The fourth option of submitting the contract to the lex mercatoria or the general principles of law including the Unidroit Principles can be a advisable solution when a dispute is designed to be submitted to experienced arbitrators. The final and fifth is to be silent on the choice of the governing law in contracting. This option can be usefully available by experienced negotiators who are well familiar with the conflict of laws rules and enables the parties to avoid the difficulties to agree on the governing law issue and leave it open until a dispute arises.

  • PDF

A Comparative Study on the Principles of Change Circumstances under the Contract for the International Sale of Goods (국제물품매매계약상 사정변경원칙의 적용에 관한 비교법적 검토)

  • Oh, Hyon-Sok
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
    • /
    • v.51
    • /
    • pp.159-185
    • /
    • 2011
  • This paper is intended to discuss the controversial issue of the principles of change circumstances under the legal system of international commercial transactions. The principles of change circumstances, so called clausula rebus sic stantibus is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept). The practical needs of international transactions differ from the established concepts of national contracts law. The purpose of this paper is to analyze the legal system and theories under the regimes of international commercial transactions such as the CISG, the PICC, and the PECL. Clausula rebus sic stantibus does not apply if the parties to a treaty had contemplated for the occurrence of the changed circumstance. It only relates to the changed circumstances that were never contemplated by the parties. This paper has shown that the hardship provisions in the CISG, PICC, PECL has similarities to each a validity defense and an excuse defense. it was provisions that CISG governs this issue in Article 79, PICC Article 6.2.1, 6.2.2, 6.2.3(in addition to Article 7.1.7), PECL Article 6.111(in addition to 8.108). It is time when we should reconsider its legal system with great interest in order to harmonize with the international standpoint. It will be the turning point of our viepoint under the international commercial transactions.

  • PDF

A Comparative Study on International Convention and National Legislation Relating to the Liability of the Air Carrier

  • Lee, Kang-Bin
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
    • /
    • v.40
    • /
    • pp.97-144
    • /
    • 2008
  • The purpose of this paper is to review the text of national legislation relating to the carrier's liability in respect of the carriage of passengers, baggage and cargo by air in major states such as United Kingdom, Germany, France, Canada, Russia and China, and to compare the air carrier's liability under the national legislations of above states with them under the Warsaw System relating to the international carriage by air. Also this paper reviews the text of the draft legislation relating to the carrier's liability in respect of the carriage by air in Korea. The Warsaw Convention for the Unification of Certain Rules Relating to International Carriage was adopted in 1929. In 1999, the ICAO adopted the Montreal Convention for the Unification of Certain Rules for International Carriage by Air vastly modernizing the unification of private air law. The Montreal Convention replaced the instruments of the “Warsaw System”, and came into force on 4 November 2003. The Montreal Convention is not only an international convention. It has also exercised a considerable influence on national legislation. A the Convention, or certain of its principles, with the object of regulating their national air transport. The main feature of the liability regime of the air carrier under the Montreal Convention is the two-tier liability system for death or injury of the passenger with strict liability up to 100,000 SDR and presumptive liability with a reversed burden of proof without any limit above that threshold. The principles of the liability of the air carrier under the Montreal Convention have been adopted into national legislations by the United Kingdom, Germany, France, Canada, Russia and China. Now the Ministry of Justice of Korea is proceeding to make a new national legislation relating to the liability of the air carrier in respect of the carriage by air. The draft legislation of the Part VI the Carriage by Air of the Commercial Code of Korea has adopted the main principles of the liability of the air carrier under the Montreal Convention. In conclusion, the national legislation relating to the liability of the air carrier in Korea will contribute to settle efficiently the dispute on the carrier's liability in respect of the carriage of passengers, baggage and cargo by air.

  • PDF