• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.45
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• pp.85-109
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• 2010

L/C provides the exporter and the importer with safe assurance in the exchange of goods for payment in international trade. It involves a number of parties. Although the parties may have confidence in their client, bad faith or ignorance of international banking practice by any of these parties could cause the failure of transaction, which makes international trade a risky business. Most of the risks are found in transport document, which can cause disputes. There are many factors in the risk of transport documents under L/C transaction. One most common risk factor for the beneficiary in all transport documents is even if there is no discrepancy in document, the issuing bank or the applicant refuses to pay or delay payment insisting there is a discrepancy. In some very rare cases, the beneficiary may not get paid due to unfair injunction of the local court of the applicant. For the applicant, most common risk factors are fake bill and fraud. Risks classified according to the sorts of transport documents are as follows. 1. In B/L, payment can be refused because it is regarded as charter party B/L, although there is no real charter party contract. And the applicant can bear the potential risk of the loss or deterioration of cargo through transhipment of the cargo loaded on board in container if transhipment is prohibited without excluding of UCP 600 article 20 (c). 2. In charter party B/L, the applicant may take delivery without paying when charter party B/L is signed by charterer, which can result in a big loss for the beneficiary and the negotiating bank. And risks may arise when cargo is seized because the charterer does not pay the hire. The applicant and the issuing bank are also vulnerable to a risk - Against whom should they file a suit when cargo gets damaged during transportation? 3. In multimodal transport document, which is subject to a conflict because there is a big difference in viewpoints between transport industry and banks, conflicts may also arise when L/C requires ocean B/L and accepts multimodal transport document at the same time, but does not specify the details. 4. In air waybill, where the consignee is not the issuing bank but the applicant, risks may take place to the beneficiary when the applicant takes delivery but refuses to pay asserting minor discrepancies in document. The applicant may also bear the risk when cargo may not be loaded because air waybill is a received bill. Another risk may arise when although the applicant prohibits transhipment without excluding UCP 600 article 23 (c), the cargo may be transhipped, provided that the entire carriage is covered by one and the same air waybill.

• Korean Security Journal
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• no.22
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• pp.91-111
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• 2010

Around the middle of the ninth century the strict bone-rank system of Silla frustrated many people who had political ambition but lacked nobility. They had to seek other ways, including maritime trade. Such an undertaking reflected and also increased their economic and military power. Trade prospered with T'ang China and with Japan as well. The threat of piracy to Silla's thriving maritime trade caused to create a succession of garrisons at important coastal points. Chonghae Jin (Chonghae garrison) was regarded as the most important of these. It was established in 828 by Chang Pogo. Chonghae Jin was on Wando, an island just east of the southwestern tip of Korea and a key place at this time in the trade between China, Korea, and Japan. From this vantage point Chang Pogo became a merchant-prince with extensive holdings and commercial interests in China and with trade contacts with Japan. Although piracy was rampant in East Asia at that time, either the Chinese or Silla government was not able to control it due to inner political strife and lack of policing resources. Infuriated by the piracy and the government's inability to control it, Chang Pogo came back to Silla to fight against the pirates and to protect maritime trade. He persuaded the king of Silla and was permitted to control the private armed forces to sweep away the pirates. In 829 he was appointed Commissioner of Chonghae-Jin with the mission of curbing piracy in that region. Chang's forces were created to protect people from pirates, but also developed into traders among Silla Korea, T'ang China, and Japan in the 9th century. This was geographically possible because the Chonghae Garrison was situated at the midpoint of Korea, China, and Japan, and also because Chang's naval forces actually dominated the East Asia Sea while patrolling sea-lanes. Based on these advantages, Chang Pogo made a great fortune, which might be collected from a charge for protecting people from pirates and the trades with China and Japan. Chang's forces could be termed the first private security company in the Korean history, at least in terms of historical documents. Based on historical documents, the numbers of private soldiers might be estimated to exceed tens of thousands at least, since Chang's forces alone were recorded to be more than ten thousand. Because local powers and aristocratic elites were said to have thousands of armed forces respectively, the extent of private forces was assumed to be vast, although they were available only to the privileged class. In short, the domination of Chang's forces was attributable to the decline of central government and its losing control over local powers. In addition it was not possible without advanced technologies in shipbuilding and navigation.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.261-301
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• 2016

Recently the abusive calls on on-demand bonds have been a critical issue among many engineering and construction companies in Korea. On-demand bond is referred to as an independent guarantee in the sense that the guarantee is independent from its underlying contract although it was issued based on such underlying contract. For this reason, the issuing bank is not required to and/or entitled to look into whether there really is a breach of underlying contract in relation to the call on demand-bonds. Due to this kind of principle of independence, the applicant has to run the risk of the on demand bond being called by the beneficiary without due grounds. Only where the call proves to be fraudulent or abusive in a very clear way, the issuing bank would not be obligated to pay the bond proceeds for the call on on-demand bonds. In order to prevent the issuing bank from paying the proceeds under the on-demand bond, the applicant usually files with its competent court an application for injunction prohibiting the beneficiary from calling against the issuing bank. However, it is in practice difficult for the applicant to prove the beneficiary's call on the bond to be fraudulent since the courts in almost all the jurisdictions of advanced countries require very strict and objective evidences such as the documents which were signed by the owner (beneficiary) or any other third party like the engineer. There is another way of preventing the beneficiary from calling on the bond, which is often utilized especially in the United Kingdom or Western European countries such as Germany. Based upon the underlying contract, the contractor which is at the same time the applicant of on-demand bond requests the court to order the owner (the beneficiary) not to call on the bond. In this case, there apparently seems to be no reason why the court should apply the strict fraud rule to determine whether to grant an injunction in that the underlying legal relationship was created based on a construction contract rather than a bond. However, in most jurisdictions except for United Kingdom and Singapore, the court also applies the strict fraud rule on the ground that the parties promised to make the on-demand bond issued under the construction contract. This kind of injunction is highly unlikely to be utilized on the international level because it is very difficult in normal situations to establish the international jurisdiction towards the beneficiary which will be usually located outside the jurisdiction of the relevant court. This kind of injunction ordering the owner not to call on the bond can be rendered by the arbitrator as well even though the arbitrator has no coercive power for the owner to follow it. Normally there would be no arbitral tribunal existing at the time of the bond being called. In this case, the emergency arbitrator which most of the international arbitration rules such as ICC, LCIA and SIAC, etc. adopt can be utilized. Finally, the contractor can block the issuing bank from paying the bond proceeds by way of a provisional attachment in case where it also has rights to claim some unpaid interim payments or damages. This is the preservative measure under civil law system, which the lawyers from common law system are not familiar with. As explained in this article, it is very difficult to block the issuing bank from paying in response to the bond call by the beneficiary even if the call has no valid ground under the underlying construction contract. Therefore, it is necessary for the applicants who are normally engineering and construction companies to be prudent to make on-demand bonds issued. They need to take into account the creditability of the project owner as well as trustworthiness of the judiciary system of the country where the owner is domiciled.