• Journal of Arbitration Studies
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• v.27 no.1
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• pp.3-35
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• 2017

For recent years, several disputes between Korean consumers and multinational companies have arisen. Since the disputes were big and material that children's safety was at issue, a question started if Korean law properly has protected consumers' rights against multinational companies. While the Korean legal society tried to legislate punitive compensation with this concern, the U.S. Supreme Court reached an interesting case law regarding consumer contracts. A recent trend on consumer contracts in the United States shows that general terms have arbitration clause with class action waiver. As much as international arbitration has worked as the most effective resolution in international commercial disputes, the concept is still foreign and the experts are not approachable to lay individual consumers. However, class action in arbitration can hugely help for lay individual consumers to bring a case before arbitration tribunal. California courts consistently showed the analysis that the practical impact of prohibiting class action in arbitration clause is to ban lay individual consumers from fighting for their rights. However, the Supreme Court held that the arbitration clause shall be enforced as parties agree even if consumers practically cannot fight for their rights in the end. Even though consumer contracts are a typical example of lack of parity and of adhesive contract, the Supreme Court still applies liberalism that parties are equal in power and free to agree. This case law has a crucial implication since Korean consumers buy goods and services from the U.S. and other countries in everyday life. Accordingly, they are deemed to agree on the dispute resolution clauses, which might violate their constitutional right to bring their cases before the adjudication tribunal. This issue could be more important than adopting punitive compensation because consumers' rights are not necessarily governed by Korean law but by the governing law of the general terms and conditions chosen and written by the multinational companies. Thus this paper studies and analyzes the practical reality of international arbitration and influence of arbitration clause with class action waiver with the U.S. Supreme Court and California case laws.

• Koreanishche Zeitschrift fur Deutsche Sprachwissenschaft
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• v.1
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• pp.141-163
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• 1999

Im Rahmen der Prinzipien und Parametertheorie ist die $koh\"{a}rente$ Konstruktion umstritten in bezug auf die Frage, ob sie yon der satzwertigen, $inkoh\"{a}renten$ Konstruktion(i.e. Small Clause) herleitbar ist oder nicht. Die derivationellen Analysen wie Evakuierungsanalyse, Verbanhebungsanalyse und Reanalyse gehen von der Annahme aus, $da{\ss}\;die\;koh\"{a}rente$ Konstruktion eine von der $inkoh\"{a}renten$ Konstruktion derivierte Variation ist. Im Gegensatz dazu ist nach der Unifikationsanalyse die $koh\"{a}rente$ Konstruktion die basisgenerierte monosententiale Konstruktion. In der vorliegenden Arbeit wird versucht, die empirische und theoretische $Unad\"{a}quatheit$ der derivationellen Analysen zu zeigen. Wenn die derivationellen Analysen korrekt $w\"{a}ren,\;mu{\ss}te$ auch nach der Derivaton beim langen Passiv das Akkusativkomplement der Infinitivkonstruktion ohne Kasuskonversion bleiben. Aber in der Tat wird der Nominativkasus dem Komplement der Infinitivkonstruktion zugewiesen. In der empirischen Gesichtspunkten steht das lange Passiv nicht im Einklang rnit den derivationellen Analysen. Ferner $mu{\ss}$ nach Chomskys $\"{O}konomieprinzip$ die Derivation obligatorisch sein. Aber die derivationellen Analysen, nach denen der grammatische Satz vom grammatischen Satz deriviert wird, ist nicht obligatorisch, sondern fakultativ. Sie sind theoretisch nicht $ad\"{a}quat$. In dieser Arbeit wird die Resultativkonstruktionen als weitere $koh\"{a}rente$ Konstruktion vorgeschlagen. Dabei wird die Evidenz gegen die Small Clause Struktur, die nach den derivationellen Analysen als $urspr\"{u}ngliche$ Struktur der koharenten Konstruktion angenommen wurde, zweierlei wie folgt gezeigt: Skopus und Idiomatisierung. Wenn die Resultativkonstruktionen als Small Clause analysiert werden, kann ein Adverb innerhalb des Small Clause auftreten, das den weiten Skopus $\"{u}ber$ den Gesamtsatz hat. Aber unter der Small Clause Analyse kann $tats\"{a}chlich$ das Adverb wegen der K-Kommandobedingung keinen weiten Skopus. D.h. das Adverb kann das finite Verb nicht k-kommandieren. Idiomatisierung bildet vor der Transformation im Lexikon eine syntaktische Einheit. In der Resultativkonstruktion, die das $inh\"{a}rente$ Reflexivum enthalt, $k\"{o}nnen\;das\;Resultativpr\"{a}dikat$ und das Verb wie ein reflexives Verb analysiert werden. Aber unter der Small Clause Analyse ist Idiomatisierung des $Resultativpr\"{a}dikats\;und\;Verbs\;nicht\;m\"{o}glich$, weil sie in der D-Struktur keine syntaktische Einheit bilden.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.3-33
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• 2013

The purpose of this paper is to examine the problems in exercising buyer's right to claim damages for the breach of contract by the seller in international sales contract and to suggest reasonable counter-measures. The main contents are as follows: First, this author analyzed the principles of the seller's liability for damages in detail and examined the methods for the calculation of damages on the basis of Arts.74~77. As these articles are found to be insufficient in practical application, this author further examined the UNIDROIT Principles(2004) to confirm whether these Principles can fill the gaps of CISG or not, which turned out their gap-filling functions. Second, this author tried to find any expected problems when the buyer resorts to the right to claim damages in case of the seller's breach of contract including the estimation of damages, the burden of proof, causation, the proof of appropriateness for avoidance, the proof of buyer's obligation to mitigate the loss and so on. The reason is that these problems may cause a lot of difficulties in real business. As result, many buyers have given up their reasonable rights to claim damages so far. Finally, from the buyer's perspective, this author would like to suggest a liquidated damage clause(LD Clause) which gives the buyer to received a specified sum in case of seller's non-performance and/or a demand guarantee(or standby L/C) which guarantees buyer to secure unconditional payment independent of the underlying contract. For these purposes, the buyer should try to insert the LD Clause and/or Guarantee Clause in the contract when the buyer and the seller negotiate the sales contract. Also there are a lot of considerations and limitations in using the LD Clause and the Guarantee Clause in their real business, mainly dependent up bargain power between the seller and the buyer, for which this author promise to examine in detail in the future.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.91-113
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• 2017

UN Convention on International Sale of Goods (CISG) and International Commercial Arbitration aim at the promotion and facilitation of international trade. Both of them share similar general principles; i.e., party autonomy and pacta sunt servanda. Also they are often applied concurrently in the case of the international commercial trade. The purpose of this article is to investigate whether the CISG could apply the formation of the arbitration clause that is included in the main contract governed by CISG. Sellers and buyers have freedom of designating choice of law that is applied to their contracts. An international arbitration agreement is presumed to be separable from the contract in which it is found. However, arbitration clauses commonly form part of a general contract. Thus, the CISG is intended to be applied to dispute resolution clauses, including arbitration clause even if it is not completely suitable. Notably, there is a fundamental distinction between the CISG and arbitration. The CISG abolished the formalities of contract. New York convention requires Contracting States' Courts to enforce written international agreements to arbitrate.

• Journal of Physiology & Pathology in Korean Medicine
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• v.32 no.4
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• pp.211-216
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• 2018

Generally, clause 273 of Shanghan-lun was called as a principle of Taeeum-byung and was regarded that it contains essential substances of Taeeum-byung. In this study, I compared the text of diverse woodblock-printed versions, the opinions of many annotators, and other clauses of Shanghan-lun which related with clause 273 in pathologic view points. As results, "the symptoms become worsen by purgative medicine" of remained version is more reasonable rather than "diarrhea become worsen" of Song version, in the side of pathologic interpretation of Taeeum-byung and to understand the reason of mistreatment. In addition, the symptoms of "an intermittent and autonomous abdominal cramp" and "feeling hard on sub-chest region" should be recognized as transformed symptoms by mistreatment of purgative medicine. Thus, diarrhea cannot be accepted as a peculiar symptom of Taeeum-byung, but should be regarded as a possible symptom transformed from Taeeum-byung or its preceding diseases by purgative medicine.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.359-378
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• 2011

UCP600 Article 20 (a) (v) states that contents of terms and conditions of carriage will not be examined and Article 34 states that a bank assumes no liability or responsibility for the general or particular conditions stipulated in a document. From this perspective, banks may seem to have no obligation to examine the pre-printed clause of B/L. However, ICC decided that no opinion could be given in relation to the issues surrounding B/Ls that contain delivery clauses. Accordingly, it is agreed by previous cases and some scholars that banks may refuse the B/Ls that contain delivery clauses which are not present in other B/Ls of the same goods and transport routes. Also, ICC published ICC Decision in July 2010 regarding on board notation. In this decision, if a B/L indicates a place of receipt that is different from the port of loading and there is an indication of a means of pre-carriage, then a dated on board notation will be required indicating the name of the vessel and the port of loading. Therefore, banks may,, in some cases, need to scrutinize the pre-printed clauses especially appearing in the front page of B/Ls.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.149-171
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• 2008

The purpose of this paper is to examine the Measures against Risks in International Investment Agreement: focusing on Umbrella Clause and MIGA. Umbrella Clauses have become a regular feature of international investment agreements and have been included to provide additional protection to investors by covering the contractual obligations in investment agreements between host countries and foreign investors. The meaning of umbrella clauses is one of the most controversial issues with which international arbitral tribunals have been recently confronted with while adjudicating investment disputes brought before them MIGA issues guarantees against non-commercial risks for investments, such as: currency transfer restrictions, expropriations, war and civil disturbances and breach of contract by host governments, and the case that the investor obtains an arbitration award or judical decision for damages and is unable to enforce it after a specified period. Furthermore, MIGA undertakes a wide range of mediation activities designed to remove obstacles to the flow of foreign direct investment in its developing member countries.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.121-139
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• 2009

In this rapidly changing knowledge-based society, technology is regarded as one of critical factors for competitive edge and sustainable growth. Therefore, most of countries in the world have strengthened their efforts to promote industrial technology innovation and development. In Korea, KIAT(Korea Institute for Advancement of Technology) newly established m May 2009 as a quasi-government institute with the integration of six organizations including KTTC(Korea Technology Transfer Center) has played a crucial role in transferring and commercializing industrial technologies between public and private sectors. Generally, technology transfer and commercialization have been conducted by the contracts which are very detailed, complex and diverse. To solve any disputes and controversies between the parties, it is essential to make a prior agreement on the amicable settlement by the use of Arbitration Clause. By reviewing the characteristics, process, current situation and model contracts of domestic technology transfer in Korea, it is quite recommend for arbitration-related organizations such as KCAB(Korean Commercial Arbitration Board) to foster the strong campaign for the popular use of Arbitration Clause. It will contribute to settle any disputes and controversies between the parties more speedy, economically and rationally, thereby promoting the technology transfer and commercialization in Korea.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.18
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• pp.137-157
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• 2002

The clauses of bill of lading(B/L) consist of the terms of contract for the carriage of goods by sea because of clauses of B/L by the mutual agreement of contracting parties. There are some exempted cause of deviation clause in B/L for specific reasons. Then deviation clauses are influenced by Rules of international carriage of goods by sea, because the international rules become the governing law of contract for the carriage of goods by sea. The problem of deviation clauses in B/L is stipulated as follows. "It shall be prerequisite to the Merchant' claim for damages on account of deviation that the merchant's insurance shall first have been cancelled on account of alleged deviation. No deviation shall oust the right to limit liability or damages, and the Carrier shall always be entitled to the full benefit of all privileges, rights and immunities contained in this Bill of Lading and incorporated tariffs." This stipulation should be adjusted according to the confirmed cases, otherwise it will be invalid according to the Hague Rules and Hamburg rules. The sphere of a reasonable deviation in the deviation clause should be interpreted in the connection with the designed voyage and the commercial object of contract for the carriage of goods by sea and the deviation become valid unless the policy, the general object of international rules or the true intention of contracting parties has violated.

• Journal of Arbitration Studies
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• v.22 no.1
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• pp.43-63
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• 2012

Media ADR is currently emerging as one of successful cases in South Korea while environmental ADR was known not to satisfy both defendants and offenders. Thus, this paper is intended to present proper remedies for typical compensation schemes of environmental ADR by comparing the two ADRs regarding legal reservation of compensation clause. It was found that the media ADR helped clients achieve a more fast and easy dispute resolution by providing compensation standards based on various categories such as types and scopes of compensation. However, the compensation scheme of environmental ADR brought out public complaints and inadequate services due to inconsistency and instability in terms of legal reservation. The results indicate that the compensation clause based on the reservation of laws in media ADR could be used not only as a checklist to confirm limitations of environmental ADR, but also as realistic evidences to adjust the compensation standard systematically that is under development and requires remodelling. As a result, the research findings have opened the new possibilities of "the quality assurance of environmental ADR based on the domestic legislation", proposed as an initial aim of this paper.