• International Commerce and Information Review
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• v.8 no.2
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• pp.211-226
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• 2006

This paper discusses the definition of the term "domestic industry" in relation to the application of the safeguards provisions of the WTO through the judicial interpretation made by the WTO Appellate Body and panel. The requirements for the imposition of safeguards include a rapid increase in import quantity, the existence of serious injury or threat of serious injury to the domestic industry, and a causal relationship between the increase in imports and the industrial injury. The domestic industry refers to the producers that account for a considerable portion of the total national production, or the national producers who produce articles "like" or "directly competitive" with the specific imports. Chronically, there have been controversial disputes relating to the interpretation of the term "like" or "directly competitive". Reviewing the disputes relating to the term "domestic industry" in application of the safeguards provisions since the establishment of the WTO, the interpretation of the term "like" has been made imposing weight on the physical characteristics of the products. This interpretation is in contrast with that of the interpretation of the term "directly competitive" which has been interpreted with imposed weight on the commercial elasticity of substitution which can be measured by the final use or consumer's taste.

• Archives of design research
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• v.16 no.3
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• pp.133-142
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• 2003

This study on parody and especially parody in advertising, deals with the basic concepts of parody in advertising, as well as copyright infringement issues highlighting the different legal interpretations in American and Korean law when dealing with indiscreet cases of parody in advertising. some suggestions are made on desirable and forword-looking solutions. Different to the acceptance of parody in the American culture, Korean law was limiting in allowing parody to be used and applied. In order to solve copyright issues concerning parody, the following points need to be addressed and analyzed; ·First, plagiarism, imitation, and the dear outline of deliberation standards about parody. ·Second, the expansion of the deliberation body aid explicit application of deliberation standards. ·Third, the trying for self-improvement of the advertising industry itself. ·Fourth, the development and advancement of consumer monitoring. ·Firth, the review of judicial precedents along with tile vocalization of the advertising industry's ideas and concepts on the matter.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.313-328
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• 2013

Today FTA extends over the world and Korea as a main member of international trade is no exception. In the past Korea, as the developing countries, has made endlessly effort to induce foreign investment from foreign enterprise and/or government to be a truly OECD countries today and made it. Korea's trade economy was reached 1 trillion dollars in 2012. Now we have to find a new way to produce, process, procure goods from foreign investment and also need to protect our profit and/or rights within foreign judicial territory. There are two method to protect foreign enterprise or government. First they rely on general principles in WTO or Bilateral Investment Treaty that the principle of equality, national treatment, and most-favored-nation treatment, you can create a predictable environment to protect foreign enterprise and/or government. Second they need to incorporate contractual clauses in their agreement such as stabilization clause, force majeure, arbitration, governing law or sovereign immunity. Of course there are many things left behind to consider I hope it will be helpful to those who prepare foreign investment contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.43-67
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• 2018

Arbitration is one of alternative dispute resolution systems which settle a dispute by arbitrators(private persons) based on a contract between contracting parties without a judicial litigation system involved. As a valid arbitration agreement is an essential requirement for commencement of arbitration, the first thing to be determined is whether there is a valid arbitration agreement or not when a dispute is submitted. A consumer arbitration agreement usually exists as an arbitration clause in an adhesive contract between consumers and a seller. When consumers buy a product from a seller, they are requested to agree on a general terms and conditions which are unilaterally drafted by a seller in advance. These terms and conditions are not negotiable because it is an adhesive contract and consumers are placed in "take-it-or-leave-it" position. Therefore, even though there is an arbitration agreement between consumers and a seller, it has to be carefully considered whether it has a legal effect or not. In this respect, a court will examine if an arbitration agreement has procedural unconscionability and substantive unconscionability. Therefore, as U.S is a well-advanced and arbitration-friendly country, this paper analyzes four U.S cases to find out (i) what a court considers, (ii) how a court examines and interprets procedural and substantive unconscionability and (iii) if there has been a change in regard to a court's decision. By doing so, it will provide some suggestions and guidelines for a consumer arbitration in Korea.

• Journal of Arbitration Studies
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• v.15 no.3
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• pp.85-112
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• 2005

The purposes of this paper are to investigate how deeply the courts in Korea and the U.S. are involved in the enforcement process of the arbitral award. The extent of judicial review of arbitral award and the procedures to execute the arbitral award were explored and compared in each of the countries. In Korea the winning party should file a suit for enforcement judgement to execute the arbitral award, while the winning party in the U.S. should file an application for motion. Such difference in the execution process between Korea and the U.S. may be led to a higher burden on the Korean winning party in the execution process due to the complexity and instability during the new litigation for enforcement judgement. In addition, the Korean Arbitration Act does not grant any authority for the court to intervene with the substantive matters in the arbitral award, while in the U.S. the Common Law allows the court to vacate the arbitral ward when the arbitral award is entered with the manifest disregard of the law by the arbitral tribunal. It would be more practical for the court to supplementarily intervene with the arbitral award which obviously hurts the legal interest of the arbitral parties.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.115-151
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• 2003

As international trade and commerce increases among the nations in the world, it is inevitable fact that disputes rise as well. As these transactions grow more complex, it becomes increasingly important to resolve disputes and conflicts as quickly, efficiently and formatively as possible. In practical commercial affairs, we call a variety of international commercial troubles ‘trade claims’, Trade claims consist of disputes, controversies, or differences which may arise between the parties, out of, or in relation to, or in connection with their contracts, or for the breach thereof. Trade claim should be instituted promptly, otherwise it may be barred by prescription. Also, the other party will not accept the claim by reason of loss of evidence. In this connection, it should be noted that how long the claim prescription would continue. Trade claim should be settled reasonably and amicably between the parties concerned. And if both parties do not reach an agreement through their negotiation, then the claim shall be settled finally by binding arbitration. For the purpose of managing trade claim and arbitration, the trading parties insert in their contracts claim and arbitration clauses. This paper will examine some judicial precedents concerning claim clauses which are closely connected with a time limit of the claim It will also review some famous precedents rendered by the competent courts in connection with the wording, scope and implied renewal of arbitration clauses.

• International Commerce and Information Review
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• v.6 no.2
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• pp.23-41
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• 2004

Rapid development of computer and telecommunication technology brought out the expansion of electronic commerce which is the new type of business transaction. Offline transaction can lead to problems and disputes the same is for cyberspace transactions. However ADR is not meet for the online transaction for speed, cost and open network system, ODR methods to resolve electronic commerce conflicts is crucial for building confidence and permitting access to justice in an online business environment. And ADR refers to processes other than judicial determination in which an impartial person assists those in a dispute to resolve the issues between them. ODR refers to ADR processes assisted by information technology, particularly the internet. ODR has been available since 1996. Its development can be as passing through three broad stages : hobbyist, experimental, entrepreneurial, institutional phrase. Also, ODR has adapted a range of traditional ADR for use online, including arbitration. mediation. facilitated negotiation and case appraisal. Mediation and arbitration have been the most prevalent forms of ODR. ODR is the burgeoning field and has created a new issues. All such issues which have been debated in the ADR are composed with ODR. But these are not limited. Some of issues are further complicated by the nature of the online environment such as confidentiality and principle of parties. Finally electronic commerce now takes place on the Internet, it is inevitable that the commercial world wants access to dispute resolution process that best suits the new commercial environment. ODR methods are processing for development and legal issues are considered by both national and international authorities.

• International Commerce and Information Review
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• v.6 no.1
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• pp.249-265
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• 2004

In the current digital age, most of the countries in the world recognize the electronic business to be a very prospective area in the future and plan to activate for the preoccupation of the business. As a result, this led a rapid increase of the electronic business volume. Electronic business takes place in the cyber space, using internet. However, the intellectual property rights have a high degree of possibility of being infringed as the digitalized intellectual property is easy to receive, copy and transmit in the cyber space. The language structure on the web, represented by HTML, makes easier to copy the intellectual property. And, as the internet has no national boundary, the infringement of the intellectual property rights is easier regardless of country, which could lead to the commercial disputes between the concerned countries. There are in fact many legal disputes nowadays on the infringement of the intellectual property rights in such field as computer programming, infringement of the copyright, business model patent and infringement of the trademark right on the registered name of the domain. It is, therefore, time now to prepare a new theory or legal system to protect the intellectual property rights on copyright, patent and trademark right so as to comply with the digital environment together with such a splendid growth of "electronic business." USA and Germany are nowadays making a significant movement on the legislation of the electronic business, and this study will focus on the legislative contents, judicial precedents and interpretation of law in the above countries.

• Journal of Arbitration Studies
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• v.32 no.3
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• pp.47-70
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• 2022

This paper studies legal regulation of the public policy exception in the Russian Federation and domestic judicial practice on the issue. It reviews current legislation and analyzes a number of recent court cases where an arbitral award rendered by a foreign arbitration body was refused recognition and enforcement based on public policy violation. By doing so, it contributes to the knowledge on the concept of public policy in the Russian legal system and how public policy can affect the process of recognition and enforcement of foreign arbitral awards on its territory. The review of court cases demonstrates different aspects of how the public policy exception can be applied by Russian arbitrazh courts. Such decisions can provide a clearer picture of the kinds of situation that can lead to invoking the public policy clause by the court. Also, it is of practical value as persons preparing to file a claim or to be a defendant in a Russian court can be required to present existing court decisions in support of their claim or defence.

• Korea Trade Review
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• v.45 no.5
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• pp.279-301
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• 2020

In the absence of any guidance under statutory law, such as the Rules for Construction of Policy, MIA 1906, judges should follow the general principles of interpretation that apply to all contracts. In simple terms, Contra Proferentem Rule means that if the contents of the terms and conditions are ambiguous, they are interpreted against the writer of the terms and conditions. In the Anglo-American Contract Law, the 'default rule' is an important judicial tool that can supplement defects in contract norms and reinforce the principle of private autonomy through gap-filling techniques related to the interpretation of contracts. In Korea, it is sometimes mentioned in case of precedent, and it has been established as a clear rule. This study analyzes the interpretation of terms and conditions is not in the form that the interpretation of other general contracts and other interpretation principles are valid, but contracts based on terms and conditions are also contracts, and as a general rule, the interpretation of terms and conditions is explained like the general contract interpretation.