• 한국중재학회지:중재연구
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• 제25권4호
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• pp.77-95
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• 2015

CISG provides a uniform framework for contracts of sale of goods between parties whose places of business are in different States. In 2004 South Korea became the 63th State around world to adopt CISG. Starting next year CISG goes into effect as the law that governs the contracts for international sale of goods, in respect of which CISG displaces the existing domestic civil and commercial codes of Korea. By its provision Article 1(a), CISG applies directly between Contracting States without reference to private international law. As South Korea's biggest trade partners including China, the U.S. and Japan are also parties to CISG, the number of such direct applications continuously increases. Now it is estimated, though roughly, that CISG governs about two-thirds of Korea's import and export trade of goods. The private survey of the author shows that up to now in South Korea there are 39 court cases decided by the first instance courts, 29 cases by the appellate court and six cases by the Supreme Court of South Korea. In nearly all these cases, CISG applied directly. Furthermore, currently CISG is, in several respects, influencing upon the revision of Korean civil code which is designed to modernize it: The revised draft published in 2013 adopts the rules on the revocation of offers provided in articles 15 and 16, the rule on the termination of offers provided in article 17 and the rule on the time that an acceptance takes its effect provided in article 18 of CISG. More importantly, in accordance with the rules taken by CISG, the revision draft no longer requires the existence of fault or negligence on behalf of the breaching party in order for the aggrieved party to void the contract, and the revised draft denies the right of avoidance for trivial, not fundamental, breaches of contract.

• 한국중재학회지:중재연구
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• 제23권1호
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• pp.153-175
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• 2013

The issue of patent validity becomes a subject of dispute under the FTA and there is a definite difference of opinion between China, Japan, and Korea. In other words, the validity of a judgment on the patent was exclusively under the jurisdiction of the administrative agency at a particular patent office. Thus, the issue arises where there is a potential judgment on patent validity. In this case, the Supreme Court rather than the patent office can offer a judgment from a judicial institution and can make a judgment in the case of a medication. In China, however, the lowest possibility of judgment on patent validity is predicted to occur in judicial institutions. Such a judgment is recognized as the Grand Bench Decision in Korea, and the court can judge the patent validation rather than the patent office. That is just the case in the Kilby case-it is invalid for reasons obvious in Japan. Therefore, there is a substantial difference between the three countries. Especially in Japan, where after the Kilby case, they revised the patent law in 2004 to introduce Article 104-3, placing the judgment of patent validity in the court, even if the "Apparentness"is not requisite. Per this law, infringers can argue for patent invalidity not only the judgment of the patent invalidation but also the infringement lawsuit. From the point of view of Japan, Korea became the judgment of trademark validation by extension and obvious cases can become directly to judge through the Supreme Court about the right that needs to examinations and registrations. In terms of the mediation, it also provides a clue about the judgment of intellectual property validation and expands the scope of the mediation in the future. From now on, in order to have active mediation procedures in the three countries, China, Japan, and Korea would need to unify regulations and application scopes for mediation in the FTA negotiation and to look forward to achieve a vigorous mediation approach.

• 한국중재학회지:중재연구
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• 제30권4호
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• pp.163-177
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• 2020

There are several ways to implement charter parties in the operation of the vessel. Under the time charter party, the charterer borrows the vessel from the shipowner and uses the vessel to benefit his business. The time charter party's legal relationship can be divided into internal and external relationships. This article deals with an internal relationship. The legal matters between the shipowner and charterer are regulated by the agreement. The NYPE is the most widely circulated type of time charter party. According to the NYPE, navigational matters fall upon the shipowner while business matter falls upon the time charterer. There are vague parts in interpreting NYPE articles. NYPE Art. 8, called the employment clause, is one of them. The Master employed by the shipowner should follow the order of the charterer. Whether the charterer has the right to order the Master of the vessel to follow the navigating route recommended by him was addressed in the Hill Harmony case by the UK Supreme Court. The court was affirmative. Under the Ocean Victory case, whether the time charterer has an obligation to order the Master to go out to escape heavy weather from the berth at the port was at issue. The Japanese lower court decided negatively. There is a tendency that many countries insert default rule in the maritime law to apply it to the case at issue in a case where there is no agreement. It serves the enhancement of legal stability; China, Japan, and Germany are such countries. The author thinks that Korea should follow the above three countries' revision of their maritime law.

• 무역상무연구
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• 제45권
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• pp.51-82
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• 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.

• 무역상무연구
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• 제62권
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• pp.87-109
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• 2014

This article examines the regime for the recognition, enforcement and execution of arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes(ICSID). The effectiveness of international arbitration depends on the degree of finality of the award and the ease with which the award may be enforced by the prevailing part. The ICSID Convention provides for rigorous finality and seeks to establish optimal preconditions for the enforcement of awards in manner that distinguishes ICSID from other international arbitral regimes. As with other classes of disputes subject to judical or arbitral jurisdiction, most ICSID cases settle. In the cases that do proceed to award, participants must understand what will happen if the losing party fails to comply with the award voluntarily and the prevailing party takes the award through phases known as "recognition", "enforcement" and "execution". Investors should assess possible execution before finalizing investments and certainly before they initiate collection proceedings on ICSID awards. An investor with a monetary award in hand should attempt to locate assets of the losing State and then obtain comparative law advice to identify jurisdictions that allow attachment of at least certain categories of sovereign assets.

• 한국중재학회지:중재연구
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• 제9권1호
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• pp.367-390
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• 1999

The basic requirements for conducting electronic commerce include confidentiality, integrity, authentication and authorization. Cryptographic algorithms, make possible use of powerful authentication and encryption methods. Cryptographic techniques offer essential types of services for electronic commerce : authentication, non-repudiation. The oldest form of key-based cryptography is called secret-key or symmetric encryption. Public-key systems offer some advantages. The public key pair can be rapidly distributed. We don't have to send a copy of your public key to all the respondents. Fast cryptographic algorithms for generating message digests are known as one-way hash function. In order to use public-key cryptography, we need to generate a public key and a private key. We could use e-mail to send public key to all the correspondents. A better, trusted way of distributing public keys is to use a certification authority. A certification authority will accept our public key, along with some proof of identity, and serve as a repository of digital certificates. The digital certificate acts like an electronic driver's license. The Korea government is trying to set up the Public Key Infrastructure for certificate authorities. Both governments and the international business community must involve archiving keys with trusted third parties within a key management infrastructure. The archived keys would be managed, secured by governments under due process of law and strict accountability. It is important that all the nations continue efforts to develop an escrowed key in frastructure based on voluntary use and international standards and agreements.

• 보건의료산업학회지
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• 제4권2호
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• pp.107-117
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• 2010

In this paper, the researcher looked into major issues in the "Act (Draft) on Remedy for Damage from Medical Accident and Medical Dispute Mediation, etc." which was proposed by the Health & Welfare Committee, the National Assembly of the Republic of Korea, and which was pending with the Legislation & Judiciary Committee. Then the researcher pointed out worrisome problems therein and presented suggestion" to improve problematic situations. First of all, the researcher examined the following items which are major points in the aforementioned Act: 1) Establishment of Korea Medical Dispute Mediation and Arbitration Center, 2) Procedures for mediation and arbitration of medical disputes, 3) Establishment of Medical Injury Compensation Association, 4) Introduction of proxy payment for damages, 5) Compensation for no-fault medical accidents, 6) A system concerned with special cases on criminal punishment. Next, the researcher closely reviewed the following possible issues: 1) Limit of arbitrary mediation, 2) Postponement of the system concerned with special case on criminal punishment, 3) Examination of reasons for rejection, 4) Function and role of the Appraisal department, 5) A possibility of being reduced to an evidence collection procedure for lawsuit, 6) A possibility of no-fault compensation rather than injury compensation, 7) Operational issues related proxy payment for damages. Lastly, the researcher presented suggestions on how to improve each problematic issue.

• 한국중재학회지:중재연구
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• 제16권2호
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• pp.183-211
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• 2006

DDA and FTA make global business environments more competitive. These environments require Korean firms to face an unlimited competition and to resolve their dispute by ADR(Alternative Dispute Resolution). Thus, Korean Companies should be more concerned with ADR system and should utilize ADR to settle their dispute effectively and efficiently. However, ADR and KCAB isn't well recognized in Korea. So, the major purposes of this study are to expand the recognition of ADR and KCAB through SWOT Analysis of KCAB in Korea. Based on the results of my study, I suggest KCAB the following guidelines. First, KCAB work closely with the concerned research association as KSSA to make a guideline books of efficient dispute resolution. Second, KCAB improves their service quality and tries to utilizes various opportunity factors well. Meanwhile, Korean government assists KCAB with funds as well as improvement of dispute resolution system as the establishment of ADR Law. Consequently, to expand ADR in Korea, revolution of KCAB Staffs' consciousness and Korean government's assistance are very needed.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.269-291
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• 1998

Change of circumstances subsequent to formation of international business contract raises two issues on both parties' obligation to perform business transaction concerned. One is impossibility of performance due to events beyond control of parties and the other is adaption of contract. In Anglo-American Law such an impossibility of performance is provided by the doctrine of Frustration and the doctrine of Practicability(UCC 2-615). In practice a "force majeure" clause should be included in contract defining the parties' mutual rights and duties if certain events beyond their control occur to safeguard themselves against possible impossibility. On the other hand the tendency of international trade is that alongside sales contracts, there are contract for supplies, for furnishing raw materials, for building industrial complexes, and transferring technology. One characteristic of these agreements is their duration. For in order to carry out these agreements, it is necessary to complete a series of closely interrelated operations which, in the normal course of events, take place over a number of years. It is often difficult for the parties, when finalizing their contract, to have a full grasp of all of the factors governing their relations. With a view to resolving difficulties such as compromise the continuous performance of a contract, parties may insert a regulatory clause in their contract providing for intervention by a third person after stating in specific and detailed fashion the circumstances in which their contract may be adapted.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.103-122
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• 2004

Recognition and enforcement of the arbitral award play an important role in the settlement of the international commercial disputes. The New York Convention makes it a duty for the courts of signatories to recognize and enforce the foreign arbitral awards not taking the nationality of the party concerned into consideration. Recognition and enforcement of the arbitral award may be refused if the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. The arbitral award has the same force as an irrevocable judgement including effect of excluding further litigation, its execution and formation. But the effect of set aside arbitral award made abroad in arbitral place was denied by France court for the interest of his people. There is no arbitral act but arbitral procedure is regulated by New Code of Civil Procedure in case of France. An appeal against the decision which grants recognition or enforcement is open if the recognition or execution is contrary to international pubic policy in virtue of Art. 1502. Arbitrator may consider compulsory provisions in arbitral place to assure to recognition and enforcement of the arbitral award.