• Korea Trade Review
• /
• v.41 no.5
• /
• pp.15-39
• /
• 2016

Over the past couple of decades, we can see the emergence of a new lex mercatoria. It consists of international conventions or treaty, model laws and international principles. And such new lex mercatoria is driven by the international institutions such as UNCITRAL, UNIDROIT and ICC. The international convention and international principles in the field of international commercial transaction are considered : UN Convention on Contracts for the International Sale of Goods(CISG) and The UNIDROIT Principles(PICC Principles). The former is the statue law for the latter, and the latter sometimes supports the former as an interpretation and supplementation of CISG. So, the purpose of this article is to evaluate and investigate the current status of CISG and PICC Principles in terms of application and interpretation principles. The results are as follows. First, PICC are used for the interpretation and supplementation of international law such as CISG, but CISG is a law, not a rule. Second, CISG and PICC Principles are not often chosen when parties chose the law governing their contract. The parties very often chose a national law ; the number of the parties choosing CISG and PICC Principles as a governing law was very low.

• Journal of the Korean Society of Marine Environment & Safety
• /
• v.30 no.1
• /
• pp.58-64
• /
• 2024

Approximately 250 marine oil spill accidents have occurred in Korea, with profound impact on local communities and the environment. The restoration process necessitates significant resources and costs to return affected areas to their pre-accident state. In accordance with the polluter pays principle, compensation is demanded from polluter, as stipulated in both international conventions and national laws. Consequently, investigations are conducted to determine civil and criminal liability. As the importance of investigation actors in oil spill accidents increases, standards such as CEN 15522-2 and ASTM D 3248 are employed to determine the similarity between the spilled oil and the oil of the suspected ship. Among these standards, CEN 15522-2, the most actively used European standard, underwent its third revision and is now known as EN 15522-2, as of 2023. This study used EN 15522-2 to analyze samples from marine oil spill accidents that occurred in Korea. The results indicated that, considering the characteristics of domestic spills where light fuel oil spills account for more than 40%, the application of EN 15522-2, which includes low-boiling point substances such as Adamantanes, was confirmed to be highly effective.

• The Korean Journal of Air & Space Law and Policy
• /
• v.28 no.2
• /
• pp.295-347
• /
• 2013

Korea launched the science satellite by the first launch vehicle Naro-ho(KSLV-1) at the Naro Space Center located at Oinarodo, Cohenggun Jellanamdo in August, 2009 and October, 2010. However, the first and second launch failed. At last, on January 30, 2013 the third launch of the launch vehicle Naro-ho has successfully launched and the Naro science satellite penetrated into the space orbit. Owing to the succeed of the launch of Naro-ho, Korea joined the space club by the eleventh turn following the United States, Russia, Japan and China. The United Nations adopted the Outer Space Treaty of 1967, the Rescue Agreement of 1968, the Liability Convention of 1972, the Regislation Convention of 1976, and Moon Agreement of 1979. Korea ratified the above space-related treaties except the Moon Agreement. Such space-related treaties regulate the international liability for the space activity by the launching state of the space object. Especially the Outer Space Treaty regulates the principle concerning the state's liability for the space activity. Each State Party to the Treaty that launches or procures the launching of an object into outer space is internationally liable for damage to another State Party or to its natural or judicial persons by such object or its component parts on the earth, in air space or in outer space. Under the Liability Convention, a launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight. The major nations of the world made national legislations to observe the above space-related treaties, and to promote the space development, and to regulate the space activity. In Korea, the United States, Russia and Japan, the national space-related legislation regulates the government's liability of the launching state of the space object. The national space-related legislations of the major nations are as follows : the Outer Space Development Promotion Act and Outer Space Damage Compensation Act of Korea, the National Aeronautic and Space Act and Commercial Space Launch Act of the United States, the Law on Space Activity of Russia, and the Law concerning Japan Aerospace Exploration Agency and Space Basic Act of Japan. In order to implement the government's liability of the launching state of space object under space-related treaties and national legislations, and to establish the standing as a strong space nation, Korea shall improve the space-related policy, laws and system as follows : Firstly, the legal system relating to the space development and the space activity shall be maintained. For this matter, the legal arrangement and maintenance shall be made to implement the government's policy and regulation relating to the space development and space activity. Also the legal system shall be maintained in accordance with the elements for consideration when enacting the national legislation relevant to the peaceful exploration and use of outer space adopted by UN COPUOS. Secondly, the liability system for the space damage shall be improved. For this matter, the articles relating to the liability for the damage and the right of claiming compensation for the expense already paid for the damage in case of the joint launch and consigned launch shall be regulated newly. Thirdly, the preservation policy for the space environment shall be established. For this matter, the consideration and preservation policy of the environment in the space development and use shall be established. Also the rule to mitigate the space debris shall be adopted. Fourthly, the international cooperation relating to the space activity shall be promoted. For this matter, the international cooperation obligation of the nation in the exploration and use of outer space shall be observed. Also through the international space-related cooperation, Korea shall secure the capacity of the space development and enter into the space advanced nation.

• The Korean Journal of Air & Space Law and Policy
• /
• v.27 no.1
• /
• pp.3-27
• /
• 2012

Although aviation safety and security have been improving, which has made air transportation more reliable, the international aviation community has witnessed a steady increase in the number of unruly passenger incidents. Under international law, the Tokyo Convention (The Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963) is applicable to unruly passenger issues. While the Tokyo Convention has been a successful convention which 185 member states have ratified, it has its shortcomings. Three major shortcomings are related to definition, jurisdiction, and enforcement. Firstly, the Tokyo Convention does not provide for a definition of unruly passengers, thereby resulting in a situation where conduct that may be considered to be a criminal offence in the country of embarkation may not be a criminal offence in the country where the aircraft lands. Having different definitions may lead to ineffective action on the part of air carriers. Secondly, the fact that the state of landing does not bear jurisdiction produces circumstances in which it is impossible to punish an unruly passenger who clearly committed an offence on board. Thirdly, the Tokyo Convention only recognizes the competence of the state of registry to exercise criminal jurisdiction but does not impose the duty to actually use that competence in any specific case. Along with ratifying the Tokyo Convention, Korea enacted the Aviation Navigation Safety Act in 1974 as a domestic legal approach to dealing with the problem of unruly passengers. Partially reflecting the ICAO's model legislation, Circular 288, the Aviation Safety and Security Act was enacted in 2002. Although the Korean Aviation Safety and Security Act is a comprehensive act which has been constantly updated, there is no provision with respect to jurisdiction and only the Korean criminal code is applicable to jurisdiction. The Korean criminal code establishes its jurisdiction in connection with territoriality, nationality and registration, which is essentially the same as the jurisdictional principles of the Tokyo Convention. Thus, the domestic legal regime cannot close the jurisdictional gap either. Similarly, Korean case law would not take an active posture to jurisdiction unless the offence in question is a serious one, such as hijacking. A Special Sub Committee of the ICAO Legal Committee (LCSC) was established to examine the feasibility of introducing amendments to the Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963 with particular reference to the issue of unruly passengers. The result of the ICAO's findings should lead to the modernization of the Tokyo Convention, thereby reducing the number of incidents caused by unruly passengers and enabling all parties concerned to respond to unruly passengers more effectively.

• The Korean Journal of Air & Space Law and Policy
• /
• v.27 no.2
• /
• pp.29-65
• /
• 2012

Der neue strukturelle Ansatz der Kommbination eines Rahmen$\ddot{u}$bereinkommens und eines ausr$\ddot{u}$stungsspezifischen Sonderprotokolls bedingt einen neuen organisatorischen Anstz f$\ddot{u}$r die Zusammenarbeit zwischen internationalen Organisationen bei der Schaffung von internationalem Einheitsprivatrecht. So haben hier zwei internationale Organisationen gemeinsam die Verantwortung f$\ddot{u}$r einmultilaterales $\ddot{U}$bereinkommen $\ddot{u}$bernommen: auf der einen Seite UNIDROIT als die internationale Organisation, die generell f$\ddot{u}$r die Vereinheitlichung des Privatrechts kompetent ist; auf der anderen Seite ICAO als die f$\ddot{u}$r die private Luftfahrt zust$\ddot{a}$ndige internationale Organisation. Dieses neue, f$\ddot{u}$r die Luftfahrzeugausr$\ddot{u}$stung praktizierte organisatorische Modell eines joint venture zweier internationaler Organisation bei der Einheitsrechtsetzung, namlich die Betreuung eines allgemeinen privatrechtsvereinheitlichenden Rahmens$\ddot{u}$bereinkommens durch UNIDROIT und die Wahrnehmung der sektorspezifischen Belange in einem ausr$\ddot{u}$stungsspesifischen Sonderprotokoll durch die jeweils zust$\ddot{a}$ndige internationale Spezialorganisation, hat bereits f$\ddot{u}$r die Sektoren der Eisenbahn- und Weltraumausrustung Schule gemacht. Das in Kapstadt beschlossene v$\ddot{o}$lkervertragliche Regelungswerk hat erstmals ein einheitsrechtliches - grunds$\ddot{a}$atzlich weltweite Geltung anstrebendes - Sicherungsrecht geschafen. Dies kann f$\ddot{u}$r die Sachenrechtsintergration einen $\ddot{a}$hnlichen Durchbruch bedeuten, wis das Wiener UN-kaufrechts$\ddot{u}$bereinkommen von 1980 f$\ddot{u}$r das Schuldvertragsrecht. Voraussetzung daf$\ddot{u}$r ist allerdings die juristische Qualit$\ddot{a}$t und Praxisgerechtigkeit des Regelungswerkes und - insbesondere - das Funktionieren des Registersystems. Von wesentlicher Bedeutung f$\ddot{u}$r den Erfolg des $\ddot{U}$bereinkkommens wird auchsein, ob es Rechtssicherheit zu gew$\ddot{a}$hrleisten vermag.

• International Commerce and Information Review
• /
• v.14 no.3
• /
• pp.231-251
• /
• 2012

The remedies available to a seller that has suffered a breach of contract by the buyer are addressed in Section III of Chapter III of Part III. The first provision in the section, 61, catalogues those remedies and authorizes an aggrieved seller to resort to them. The remaining provisions of the section address particular remedies or prerequisites to remedies. The subject matter of the current section remedies for breach of contract by the buyer obviously parallels that of Section III of Chapter II of Part III remedies for breach of contract by the seller. Many individual provisions within these sections form matched pairs. Thus 61, which catalogs the seller's remedies, which catalogs the buyer's remedies. Other provisions in the current section that have analogues in the section on buyer's remedies include 62, seller's right to require buyer's performance 63, seller's right to fix an additional period for buyer to perform and 64, seller right to avoid the contract. As was the case with the provisions on buyers' remedies, the articles governing sellers' remedies operate in conjunction with a variety of provisions outside the current section. Thus the seller's right to require performance by the buyer is subject to the rule in 28 relieving a court from the obligation to order specific performance in circumstances in which it would not do so under its own law. The authorization in 61 for a seller to claim damages for a buyer's breach operates in connection with 74-76, which specify how damages are to be measured. 49, stating when an aggrieved seller can avoid the contract, is part of a network of provisions that address avoidance, including the definition of fundamental breach, the requirement of notice of avoidance, provisions governing avoidance in certain special circumstances, measures of damages available only if the contract has been avoided and the provisions of Section V of Part III, Chapter V on effects of avoidance.

• The Korean Journal of Air & Space Law and Policy
• /
• v.20 no.2
• /
• pp.9-58
• /
• 2005

The Warsaw Convention-officially denominated the "Convention for the Unification of Certain Rules Relating to International Transportation by Air"- is a major multilateral agreement governing the rights and responsibilities of passengers, consignor/consignee and air carriers in international transportation. Article 29(1) of the Warsaw Convention provides that the right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped. There has been disagreement as to the nature of this provision. It has been viewed on one hand as a statute of limitations, which may be tolled in appropriate circumstances. Some US Courts which have taken this approach read Article 29(2)-which states that the method of calculating the period of limitation shall be determined by the law of the court to which the case is submitted-as leaving to local law the determination of when the 2-year limitation period provided for in Article 29(1) runs. Therefore, they conclude, under Article 29(2), whenever state law would toll a state statute of limitations, the statute of limitations contained in Article 29(1) would be tolled as well. On the other hand, some other US courts have viewed the 2-year provision contained in Article 29(1) as a condition precedent to the right to bring suit, which will absolutely bar any action not brought within 2 years of the events giving rise to the action. These courts view Article 29(2) as providing only that the forum court should look to the law of the forum on the question whether the plaintiff has taken the necessary measures within the 2-year period to invoke that particular court's jurisdiction over the action. These courts have placed great weight on the "legislative" history of the Convention in reaching this position, noting in particular that the delegates to the Convention expressly considered and rejected a provision, which would have incorporated local tolling provisions.

• The Korean Journal of Air & Space Law and Policy
• /
• v.29 no.2
• /
• pp.239-272
• /
• 2014

The rights and obligations of the Member States of ITU in the domain of international frequency management of the spectrum/orbit resource are incorporated in the Constitution and Convention of the ITU and in the Radio Regulations that complement them. These instruments contain the main principles and lay down the specific regulations governing the major elements such as rights and obligations of member administrations in obtaining access to the spectrum/orbit resource, as well as international recognition of these rights by recording frequency assignments and, as appropriate, any associated orbits, including the geostationary-satellite orbits used or intended to be used in the Master International Frequency Register (MIFR) Coordination is a further step in the process leading up to notification of the frequency assignments for recording in the MIFR. This procedure is a formal regulatory obligation both for an administration seeking to assign a frequency in its network and for an administration whose existing or planned services may be affected by that assignment. Regulatory problem lies in allowing administrations to fulfill their "bringing into use" duty for preserving his filing simply putting any satellites, whatever nationlity or technical specification may be, into filed orbit. This sort of regulatory lack may result in the emergence of the secondary market for satellite orbit. Within satellite orbit secondary market, the object of transaction may be the satellite itself, or the regulatory rights in rem, or the orbit registered in the MIFR. Recent case of selling the Koreasat belongs to the typical example of orbit transaction between private companies, the legality of which remains doubtedly controversial from the perspective of international space law as well as international transaction law. It must be noted, however, that the fact is the Koreasat 3 and its filed orbit is for sale.

• The Korean Journal of Air & Space Law and Policy
• /
• v.26 no.1
• /
• pp.271-297
• /
• 2011

Recently, risk of space accident possibility increased in according to commercial space activity and space debris. It failed launch satellite second times in South Korea. Therefore was discussed on liability and insurance issue. Generally, discuss of space insurance be divided two type. Firstly, space insurance relevant to launching satellite and in-orbit. Satellite Launch Insurance and In-Orbit Insurance by the Satellite Operator Secondly, space insurance relevant to Third Party Liability. The former is to protect owner of satellite and operator. The latter is to liable and indemnify owner of satellite and operator's liability. US, UK, France, Russia, South Korea forced to buy space insurance following to domestic law. This is a brief overview of risk allocation and insurance practices in the commercial space transportation industry today. We begin with traditional space transportation, i.e., commercial satellite launches. This is a mature industry with known players. Industry practices have developed and legislation has been adopted in the U.S. and other countries over the past decades to address liability and insurance issues. The primary focus here is on U.S. law, but the discussion of industry practice applies more generally. We then move on to a more exotic form of space transportation: Commercial human space flight. Several private companies are now signing up space tourists for commercial suborbital human space flight, advertised to become available in the near future. The United States amended its launch legislation in 2004 to promote commercial human space flight. But questions remain as to how this new industry will respond to the risk allocation regime established by the U.S. legislation, which leaves both the space flight operator and space tourist exposed to risk and potential liability. As a general proposition, state statutes and contractual waivers alone cannot be relied upon to provide adequate liability protection, and insurance will be required. Federally mandated contractual waivers by space flight participants or liability caps would be helpful to complement insurance solutions. Eventually, as the industry matures, such practices could be extended to an international legal regime. For all the issues mentioned above, I have studied the existing international treaties and several country's domestic law to the space by referring U.S's Commercial Space Launch Amendment Act of 2004 and concluded that uniform legal regime to govern these insurance issues should be established domestically and internationally in the future.

• The Korean Journal of Air & Space Law and Policy
• /
• v.29 no.1
• /
• pp.199-236
• /
• 2014

This paper analyses from the perspective of distributive justice the legal mechanisms for international allocation of orbital slots, which are of co-owned nature and thereby limited natural resources in outer space. The allocative function is delegated to the International Telecommunication Union. The Radio Regulation, amongst such other legal instruments as the Constitution and Convention, by which the ITU and contracting States thereof abides, dictates how the orbital positions are distributed. Thus, the RR is thoroughly reviewed in the essay. The mechanisms are in a broad sense categorized into two systems: 'a posteriori system' where the 'first come, first served' principle prevails; and 'a priori system' designed to foster the utilisation of the slots by those who lack space resources and are, in especial, likely to be marginalised under the former system. The argument proceeds on the premise that a posteriori system places the under-resourced States in unfavourable positions in the securement of the slots. In contrast with this notion, seven factors were instantiated for an assertion that the degradation of the distributive justice derived from the 'first come, first served' rule, which lays the foundation for the system, could be either mitigated or counterbalanced by the alleged exceptions to the rule. However, the author of this essay argues for counterevidences against the factors and thereby demonstrating that the principle still remains as an overwhelming doctrine, posing a threat to the pursuit of fair allocation. The elements he set forth are as in the following: 1) that the 'first come, first served' principle only applies to assignments capable of causing harmful interferences; 2) the interoperability of the principle with the 'rule of conformity' with the all the ITU instruments; 3) the viability of alternative registrations, as an exception of the application of the principle, on the condition of provisional and informational purposes; 4) another reference that matters in deciding the priority: the types of services in the TFA; 5) the Rule of Procedure H40 proclaiming a ban on taking advantage of coming first to the Register; 6) the technical factors and equity-oriented norms under international and municipal laws along with; 7) the changes of 'basic characteristics' of registered assignments. The second half of this essay illustrates by examining the relevant Annexes to the Regulation that the planned allocation, i.e., a priori system, bear the structured flaws that hinder the fulfillment of the original purpose of the system. The Broadcasting and Fixed Satellite Systems are the reviewed Plans in which the 'first come, first served' principle re-emerges in the end as a determining factor to grant the 'right to international recognition' to administrations including those who has not the allotted portions in the Plan.