• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.57
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• pp.79-108
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• 2013

International transactions of plant and construction project need to time to time for completing the contract. During the performing the contract there may arise many claims and disputes it should be settled rapidly for processing schedule of works. However, arbitration and litigation for settlement of dispute are inappropriate in time and expense under the specifications of plant and construction project. Dispute boards are one of the successful resolution method of dispute prior to litigation or arbitration. If the dispute board was failed, of course, it may be allowed to continue into litigation or arbitration. As the creative methods of parties agreement, dispute boards may be expected to avoid claims and dispute in long and medium international contract. The purpose of this paper is to explore the specification and limitations of dispute boards that may clear disputes under long and medium contract of construction and procurement. It needs to be understand to determine whether is the useful methods for resolving dispute in the international project. This paper considers the specific natures of dispute board and its rules, procedures and problems including ICC and FIDIC for the contract of long and medium transaction.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.75-97
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• 2009

Article 35 of the CISG defines standards for determining whether goods delivered by the seller conform to the contract in terms of type, quantity, quality, and packaging. When we apply these article 35(1), (2) of the CISG to the business connection, we will face several issues in the business connection. Fist, we will face the interpretation of contracts. When we interpret the contract, we must remember the article 8 of the CISG. Statements made by and other conduct of a party are to be interpreted according to the intent of parties. Therefore parties of contract must describe their intent correctly. Second, we must make out a contract in written about the promised contents. And it is needed to insert a merger clause in order to prevent part of contract from disagreeing with each other. Third, there are several interpretation of fitness for the purpose for which the goods would ordinarily be used. So it is important to describe the quality standard to be applied. If it does not describe the standard, it is helpful to apply the reasonable quality test. Fourth, there may be some doubt regarding the question of whose standard-that of the seller's or that of the buyer's state-is relevant in order to determine which characteristics the goods must have in order to be fit for their ordinary purpose. Ultimately, the question of the relevant standard is a matter of the interpretation of the 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 INTERNATIONAL COMMERCE & LAW REVIEW
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• v.54
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• pp.145-166
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• 2012

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises "in connection with"a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.

• Journal of Korea Trade
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• v.24 no.6
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• pp.19-36
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• 2020

Purpose - This paper analyzes how to interpret the legal view of the precedents to the UK Insurance Act 2015, comparing it to the UK Marine Insurance Act (MIA) 1906 with a focus on the relationship between the duty of uberrimae fidei and the duty of disclosure. Furthermore, this study focuses on the judgment of the Korean Supreme Court in a case, that examined whether the legal nature of the duty of disclosure or duty of uberrimae fidei in insurance law can be considered as a matter related to the insurer's liability when the applicable terms of English law are incorporated under the insurance contract. Design/methodology - This paper belongs to the field of explanatory legal study, which aims to explain and test whether the choice of law is linked to the conditions that occur in the reality of judicial practice. The approach that is used toward this problem is the legal analytical normative approach. The juridical approach involves studying and examining theories, concepts, legal doctrines and legislation that are related to the problem. Findings - Regarding the requirements and effects of breach of the duty of disclosure, if English law and the Korean Commercial Act are handled differently from each other and Korean law is recognized as the applicable law outside of the insurer's liability, it may be whether the insurer's immunity under English law is contrary to s.633 of the Korean Commercial Act. In considering the breach of the duty of disclosure as a matter of the insurer's liability, even if English law is applied as a governing law, the question of how to interpret the agreement of the governing law in this case may also be raised in the interpretation of Korean International Private Law in relation to the applicable law that applies to the rest of the matter, excluding the matters of liability. Originality/value - According to the Korean Supreme Court judgement under the governing law of the MIA 1906, the basis for recognizing the assured's pre-and post-contractual duty of disclosure is separate, and the only important matters to be notified by the assured after the conclusion of the insurance contract are those that are "relevant" and "material circumstances" that are "relevant" to the matter in question after the conclusion of the insurance contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.62
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• pp.135-178
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• 2014

The Uniform Commercial Code (UCC) sets the standards of good faith in a commercial transaction for the sale of goods. With every sales contract, there is an implied obligation for both the seller and the buyer to negotiate the contract and perform under the terms of the contract in good faith. The agreement between both parties and the customs in the industry determine how the good faith standard should be applied to a particular transaction. Generally, the meaning of good faith, though always based on honesty, may vary depending on the specific context in which it is used. A person is said to buy in good faith when he or she holds an honest belief in his or her right or title to the property and has no knowledge or reason to know of any defect in the title. In section 1-201 of the UCC good faith is defined generally as "honesty in fact in the conduct or transaction concerned." Article 2 of the UCC says "good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade." The sales contract will generally determine which party is required to perform first. This provision helps to determine if the buyer or the seller is in breach of the agreement due to failing to perform as stated by the contract. Either the seller must deliver the items before the buyer is required to accept and pay or the buyer must pay for the items before the seller has the duty to act in good faith and deliver the items in a reasonable manner. If the contract does not specifically define who is required to perform, industry customs and fair trade may determine what is acceptable for the transaction. Under the UCC, the buyer is required to pay for the goods when they are delivered, unless the contract states otherwise. Therefore, the UCC imposes an obligation of good faith on the performance of every contract or duty under its purview. The law also generally requires good faith of fiduciaries and agents acting on behalf of their principals. This article discusses problems of the principles of good faith under the UCC. Specifically, this paper focuses on the interpretation of UCC sections and analysis of various cases. By comparing, also, UCC and Korean law, the paper proposes some implications of good faith issues for Korean law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.18
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• pp.27-62
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• 2002

The international sale contract is the central contracts in export-import transactions. A good sale contract or set of general conditions of sale will cover all the principal elements of the transaction, so that uncertainties are avoided. The parties' respective duties as concern the payment mechanism, transport contract and insurance responsibilities, inter alia, will all be clearly detailed in the contract. The following key clauses should be included in international contracts of sale and general conditions of sale: ${\bullet}$ preamble ${\bullet}$ identification of parties ${\bullet}$ description of goods ${\bullet}$ price and payment conditions ${\bullet}$ delivery periods and conditions ${\bullet}$ inspection of the goods - obligations and limitations ${\bullet}$ quantity or quality variations in the products delivered ${\bullet}$ reservation of title and passing of property rights ${\bullet}$ transfer of risk - how accomplished ${\bullet}$ seller's warranties and buyer's complaints ${\bullet}$ assignment of rights ${\bullet}$ force majeure clause and hardship clause ${\bullet}$ requirement that amendments and modifications be in writing ${\bullet}$ choice of law ${\bullet}$ choice of dispute resolution mechanism Under most systems of law, a party can be excused from a failure to perform a contract obligation which is caused by the intervention of a totally unforeseeable event, such as the outbreak of war, or an act of God such as an earthquake or hurricane. Under the American commercial code (UCC) the standard for this relief is one of commercial impracticability. In contrast, many civil law jurisdictions apply the term force majeure to this problem. Under CISG, the standard is based on the concept of impediments to performance. Because of the differences between these standards, parties might be well advised to draft their own force majeure, hardship, or excusable delays clause. The ICC publication, "Force Majeure and Hardship" provides a sample force majeure clause which can be incorporated by reference, as well as a hardship clause which must be expressly integrated in the contract. In addition, the ICC Model provides a similar, somewhat more concise formulation of a force majeure clause. When the seller wishes to devise his own excusable delays clause, he will seek to anticipate in its provision such potential difficulties as those related to obtaining government authorisations, changes in customs duties or regulations, drastic fluctuations in labour, materials, energy, or transportation prices, etc.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.28
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• pp.3-36
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• 2005

Most legal systems provides the aggrieved buyer with a right to put an end to the contract. Unlike Civil Law systems, the right is rather complicated and uncertain in Common Law systems because they do not sharply distinguish between a refusal which amounts merely to a defence in the nature of the exceptio non adimpleti contractus, and one which is intended to abrogate the aggrieved party's obligations completely and to seek restitution of what he has already performed. That is, they do not draw any sharp distinction between the right of rejection or revocation and the right to put an end to the contract. This explains why the right to put an end to the contract under Civil Law systems are often compared with the right of rejection or revocation under Common Law systems in most academic papers. Having said that, this article describes and analyzes in detail the relevant UCC rules to the buyer's right of rejection and revocation, particularly the rules on the requirements for the right of rejection or revocation. This is for the purpose of providing legal advice to our sellers residing either in U.S.A. or in Korea who plan to enter into U.S.A markets and take academics' interest in the buyer's right which is deemed to be unique compared to the Civil Law systems. In addition, the study attempts to compare the rules as to the right of rejection and revocation under the UCC with those of English law which are stipulated mainly in the Sale of Goods Act (1979) in a statutory form. This may help one better to understand the rules of the UCC which are mostly originated with English law and to find in what way the rules of the UCC depart from those of English law.

• Journal of Arbitration Studies
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• v.26 no.1
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• pp.107-134
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• 2016

International arbitration is the important field of applying CISG and the backbone of uniform law developed by CISG. Now CIETAC tribunals like courts of contracting states apply CISG precisely, which is beneficial to improving the quality and the credit of arbitral cases. Arbitration has the characters of independence and the non-government. the legal foundation of arbitral tribunal's applying CISG are the national arbitral law, the applicable arbitral procedures and usages of arbitration, not for performing international obligations under the CISG. CIETAC mainly use China Contract Law and CISG over the cases of sale of goods. Because of no provisions on recovery of differential price loss (equal to article 75 and 76 of CISG) Chinese tribunals have more discretion in determining the sum of damages under the China Contract Law. Applying China Contract Law may not beneficial to aggrieved party.

• Journal of Korea Trade
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• v.26 no.7
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• pp.167-184
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• 2022

Purpose - This paper analyzes all possible issues that need to be considered in case disputes occur with regard to force majeure in international commercial contracts through the comparative study between English and Korean during COVID-19. Design/methodology - This paper belongs to the field of explanatory legal study, which aims to explain and test whether the choice of law is linked to the conditions that occur in the reality of judicial practice. The juridical approach involves studying and examining theories, concepts, legal doctrines, and legislation that are related to the problem. Findings - English law does not permit general economic impracticability to qualify as a valid force majeure event. If a party asserts that they were prevented from performing the contract, the courts will examine this strictly. Many commercial contracts in a broad range of sectors and industries are chosen by parties to be governed by English law. With COVID-19, there have been discussion of parties being released from performance as a result of force majeure. Meanwhile, under Korean law, a force majeure event should be unforeseeable and beyond a party's control. Since COVID-19 is a known event for future contracts, to avoid the risk that a similar situation in the future is deemed foreseeable and under a party's control, parties must ensure that such a risk is properly addressed in a contract. Therefore, it is necessary to have a new clause to cover a pandemic. Originality/value - In light of the ongoing unexpected and uncertain economic impacts COVID-19 is expected to bring to the world, it is anticipated that companies will experience an increased number of claims involving force majeure around the world, including English and Korea. As such, taking proactive steps to assess the applicable legal principles, including the concept of force majeure of contract, will help companies be prepared for the financial or legal implications of COVID-19. In this regard, it would be advisable for companies and businesses to take specific actions.