• International Commerce and Information Review
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• v.14 no.3
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• pp.49-73
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• 2012

India is a gigantic market with a population of 1.2 billion and an economy that is growing at the second-fastest pace in the world. The volume of trade between India and Korea has been sharply increased with the increase of dispute since 2000. Although avoidance of disputes is always a priority, it is also important to prepare methods of dispute resolution which are efficient and economical. So, understanding of Indian dispute resolution system is a necessary requirement for successful business operation with Indian companies. This article analyzed and compared with the various ways of Indian ADR such as negotiation, mediation, conciliation, Lok Adalat and arbitration in order to help the Korean traders who enter into business with the Indian companies to settle their disputes efficiently. In conclusion, this article suggests the following ways to overcome problems of dispute with Indian companies: First, the Korean companies should recognize the characteristics of Indian ADR Ways respectively. Second, the Korean companies should utilize the conciliation or the mediation in small claim but arbitration in large claim. Third, Write a contract and insert the KCAB's standard arbitration clause in their contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.44
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• pp.57-84
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• 2009

This Study attempts to compare and analyze on Principle of Change Circumstances under th CISG, PICC and PECL which are covered international commercial contract. In many international commercial contract, time is very important because delays in performance are sanctioned heavily by substantial penalty clauses. When change in circumstances affects contract performance, the contract will often not be suspended or terminated. Therefore, principle of change circumstances is being prepared of fluidity of contract environment and its effect in general. Taking into consideration the problems relating to the renegotiation or adaptation in the cases of radical change of circumstances where the CISG applies, it is suggested that the contracting parties should make clear their intentions, that is, whether they will provide for the possibility of renegotiation where the price of goods has been altered by inserting a hardship clause or for the possibility of mutual discharge from liability in the cases of economic impossibility or hardship by inserting a force majeure clause. Such provision will be desirable especially in situations where there is a long term contract, the price of goods sold tends to fluctuate in the international commerce, or where especially in contracts subjected to arbitration, the parties subject their contract to legal sources or principles of supranational character. Therefore, this study has shown that the hardship provisions in the CISG, PICC and 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 and PECL Article 6.111.

• The Korean Society of Law and Medicine
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• v.17 no.1
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• pp.169-208
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• 2016

"Act on Remedies for Injuries from Medical Malpractive and Mediation of Medical Disputes)" has been enacted to solve medical dispute. In addition, mediation and arbitration procedures have started since April 8th, 2012 from the Establishment of Korea Medical Dispute Mediation and Arbitration Agency. The average initiation rate of mediation for the past three years turned out to be 43%. Hereupon, Establishment of Korea Medical Dispute Mediation and Arbitration Agency has created a solution for automatic initiation if relevant to particular conditions to improve initiation rate of mediation procedures and passed it through the Assembly plenary session in May, 2016 and promulgated on the 30th of the same month. However, even if mediation procedure initiation rate is increased, there is no guarantee for mediation establishment rate to be improved according to current law. If Establishment of Korea Medical Dispute Mediation and Arbitration Agency intends to increase aforementioned value, automatic initiation is not the only solution. Instead, it seems to be a major assignment to identify fundamental reasons for why major health care facilities have not participated in it and to restore reliability on them. In addition, among crimes specified on the Article 268 of Criminal Act in the Article $51^*$ of "Act on Remedies for Injuries from Medical Malpractive and Mediation of Medical Disputes)", revision must be made so that the clause of clue and death by occupational or gross negligence is applied. Furthremore, it is suggested to supplement previously insufficient policies with the operation so that mediation procedures created by Establishment of Korea Medical Dispute Mediation and Arbitration Agency are stably settled in the perspective of medical institutions including the establishment of new conditions for medical institutions founders or health and medical service personnel to claim the proxy payment for damage.

• Korea Trade Review
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• v.42 no.2
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• pp.205-225
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• 2017

The study attempts to verify the case related to the notice of payment refusal by issuing bank regarding discrepancy in transport document under L/C(Letter of Credit) transaction. Considering the high portion of trade between Korea and China, Korean companies and banks in L/C transaction should be careful about many unpredictable situations. The case of this study is that Chinese seller(beneficiary) initiated a civil suit against Industrial Bank of Korea to Chinese court and Chinese courts in the first and second trials judged that the notice of payment refusal by Industrial bank of Korea doesn't satisfy Article 16, (c) (ii) (iii) in UCP 600. However, Industrial Bank of Korea implements the judgement even though the judgement is highly biased to Chinese seller. Considering the judgement by Chinese courts, the study suggests some countermeasures to Korean companies and banks which opened L/C. First, the issuing bank should describe the contents of discrepancy specifically based on Article 16, (c) in UCP 600. Second, it is necessary to insert a clause regarding governing law in the L/C contract like sales contract. Third, considering the biased judgement by Chinese court and difficulty in execution of foreign judgement in China, it is recommended to using arbitration as a method of dispute resolution such as ICLOCA and DOCDEX Rules which are international system operated by international instruments because it has legal effects to parties in L/C contracts if the issuing bank inserts arbitration clause in L/C.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.26
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• pp.35-86
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• 2005

International distributorship contract(IDC), as well as international agency contract is a type of contract which is most frequently used in international trade. But one of the main difficulties faced by parties of IDC is the lack of uniform rules for this type of contract. This means that both parties should be careful about each clause of the contract when they draw up it. The ICC prepared model form which incorporates the prevailing practice in international trade, and which aims at protecting and balancing the legitimate interests of both parties. This author examined the several important clauses in this model contract. The purpose of this examination is to help the contracting parties for better understanding and applying them in their actual contracting practice, which based on this model contract. When the supplier and the distributor execute their contract or use ICC Model Contract, they should be careful about the following points: First, some terminologies(like, "territory", "product", "competing products" and "exclusivity") should be clearly defined in their contract. Second, regarding the supplier's functions including "supplying products" and the distributor's responsibility including "undertaking not to compete", and "attaining guaranteed minimum targets", both parties should make clear about each party's right and obligation as well as one party's remedies available when other party makes breach of its obligation. Third, both parties should examine the relationship between the "exclusivity" or "sole" and competition law which is regarded as a mandatory rule in the territory. Forth, when both parties lay down "termination clause" in the contract, they should make clear about the indemnity in case of termination. Fifth, as there is not uniform law for the distributorship contract, it is inevitable to choose any local law as an applicable law in case of litigation. So both parties should keep in mind to insert arbitration clause to avoid the application of the local law. Besides, both parties should consider their individual and specific circumstances and try to reflect them in their contract by Annex I to XI attached to the end of model contract.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.127-145
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• 2014

The wording of Article 18 shows that a statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Meanwhile, Article 19 states that this reply with different terms is a rejection of the offer and constitutes a counteroffer. For example, additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other, or the settlement of disputes are considered to alter the terms of the offer materially. However, this reply with different terms which do not materially alter the terms of the offer constitutes an acceptance unless the offer or, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. As a result, the acceptance depends on whether different terms are material or not. CIETEC holds that the deletion of contract violation liability clause is not equal to an alteration to the extent of one party's liability to the other as stipulated in Article 19(3) of the CISG. In addition, CIETAC recognizes that one party had orally accepted the modifications made to the sales confirmation, with even China declaring against an oral contract. Lastly, CIETAC holds that the sales confirmation has been established when both parties signed on the sales confirmation instead of the acceptance being effective. Korean companies should, thus, note these issues when they solve disputes at CIETAC.

• 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.

• Journal of Arbitration Studies
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• v.15 no.3
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• pp.303-324
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• 2005

Turnkey project in construction which accounts for about $10\%$ of the total annual construction orders in the nation is expected to grow in size as an effort to strengthen international competitiveness and improve quality of construction work. However, problems of turnkey project in construction raise concern for many possible cases of possible claims. Based on the understanding that bidding guidelines which plays a critical role in turnkey project in construction actually contain some unequal clauses and causes for problems which undermine development of turnkey construction and further create possible cases of claims, the paper aims to identify and analyze the unequal clauses and problems contained in the guidelines in order to make suggestions for improvement. Among all the turnkey construction orders that has been placed since 2000 when domestic turnkey project in construction became relatively formulated, 13 constructions costing more than 50 billion won were selected for this study since their construction scale were large enough that the bidding guidelines for them were regarded as containing little difference among one another. In order to enhance construction technology and to prevent claims while trying to achieve the original purpose of Turnkey system, the parties involved in or schedule to take part in Turnkey project including ordering institution, Construction Company and Design Company should make an effort to have more reasonable bidding guidelines drawn up.

• Journal of Arbitration Studies
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• v.32 no.2
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• pp.31-53
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• 2022

This paper examines various legal issues related to the assignment of monetary rights under UNIDROIT Principles. To this end, this paper examines the concept and the effects of the assignment of rights, the related legal structure and notice to the obligor, and some uses in practice (II). Then, as a matter of law in the context of the assignment of monetary rights under UNIDROIT Principles, this paper examines what may happen to the legal relationship between the parties and what practical considerations need to be taken by them when the obligor has legal defenses against the assignor, when successive assignments are made by the assignor, when the obligor exercises against the assignee its right of set-off before receiving the notice of assignment, when the assigned right does not exist at the time of the assignment, when any payment is received from the obligor before the notice of assignment is given, and finally when the obligor becomes insolvent or refuses to pay.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.59-81
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• 2017

The purpose of this study is to find a solution to disputes in the process of producing digital music sources. At present, the center of the world music market including the domestic market has been completely transformed from the tangible musical record market to the intangible sound source market. Due to these environmental changes, the music production process becomes industrialized and specialized, causing conflicts of interest among the individuals in the process. First of all, this study examined changes in the music market which is the background of the dispute, identified the problems of the process and suggested solutions while summarizing the meaning and role of each process of producing a sound source that may arise during the sound production process. This study covers plagiarism between producers, copyright infringement of the creator against assistant creator caused by the industrialization and division of the production environment, issues related to the rights of sound engineers whose role and importance become bigger as acoustic technology develops and music genres become more diverse, and vertical hierarchy due to the formation of oligopoly by several distributors with huge capital. As a result of the study, it was concluded that Alternative Dispute Resolution (ADR) system is suitable for solving these problems. Specific methods of using ADR include activation of the dispute settlement system of the Korea Copyright Commission, active use of the arbitration clause specified in the standard contract, and recalculation of labor costs and earnings from copyright through mutual negotiations. This paper can be differentiated from previous studies in that it studied overall problems that might arise in the process of digital music source production and suggested ADR utilization as the solution.