• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.99-124
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• 2013

International commercial arbitration is a specially formed mechanism for the final and binding settlement of disputes arisen between contracting parties regarding procedures, structures or other contractual relationship agreed by them. It is a resolution system which is processed autonomously by arbitrators who are appointed by contracting parties without involving the national court. If the contracting parties want to settle their disputes by arbitration, there must be a valid agreement. With a valid agreement, the most important concern is which law(called as the substantive law) should be applied in order to determine the rights and obligations of both contracting parties in relation to the dispute. At this point, the substantive law is really important because it is applied to the dispute itself directly during proceedings as well as it plays an crucial role in scrutiny and enforcement of arbitral awards. This article discusses about the substantive law under international commercial arbitration, specially focusing on the regulations of the ICC rules of arbitration, which is the most widely used all over the world and UNCITRAL Model law, which most countries' rule and laws are based on. By discussing how these rules and regulations should be interpreted and applied, it is expected to provide practical help to practitioners when they agree on an arbitration agreement.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.79-99
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• 2011

This study describes the seller's duty to deliver the goods in conformity with the contract. The purpose of this study is twofold: to analyze the seller's principal duty, comparing the United Nations Convention on the International Sale of Goods(CISG) with Sale of Goods Act(SGA) and to provide legal and practical advice to contracting parties who consider CISG or SGA as a governing law. This paper first considers the requirements for the conformity with the contract, which means contractual requirements agreed between parties and implied requirements not agreed between parties. Following this, the exclusion of the seller's duty to deliver the goods required by the contract is described. Finally, this paper ends up giving contracting parties legal and practical advice.

• Journal of the Korean Society of Marine Environment & Safety
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• v.18 no.5
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• pp.496-504
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• 2012

In the field of environmental protection, close co-operation between Contracting Parties is strongly required and the reporting obligation under MARPOL 73/78 is playing an important role as a part of international co-operation for the environmental protection. In this paper, I review the meaning of reporting obligation under MARPOL 73/78 from the perspective of the international law, and investigate the status of implementation for the reporting obligation. For this purpose, I analyze status of implementation for last 10 years from 2001 to 2010 regarding reporting obligations under MARPOL 73/78 in accordance with MEPC/Circ.318. Finally, I suggest the way forward to improve Contracting Parties' compliance with reporting obligations through this analysis.

• 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.

• Health Policy and Management
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• v.19 no.1
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• pp.1-30
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• 2009

Korean medical fee contract system between the insurer and healthproviders was introduced in 2000. However, a continuous discord among contracting parties concerned and an irrational operation of an arbitration committee of Ministry for Health, Welfare and Family Affairs (MIHWAF) have made it difficult for them to reach to an agreement over last 8 years. The purpose of this study is to observe the current problems of contract system from the view of health insurance law and actual examples. Furthermore, I examined the of breakdown of negotiation by analyzing the eligibility of contracting parties, rationality of Resource Based Relative Value System (RBRVS) and contracting method and fairness of arbitration method in case of negotiation rupture. The results were as follows: First, since the introduction of medical fee contract system, there has been a problem in that both the president of National Health Insurance Corporation (NHIC) and health care provider association have not held strong negotiation power. Second, the frequent changes and notifications of Relative Value Units (RVUs) without any mutual consent between the insurer and provider association negatively have influenced the conversion factors and finally hindered the agreement of contract. Third, a current process that the conversion factors are mediated and determined at the arbitration committee of MIHWAF in the case of contract breakdown between contracting parties has some flaw in that the irrational composition of committee provoked the lack of fairness and objectivity of mediation. Fourth, we can not prospect a satisfactory outcome of arbitration committee because the mediation always has failed to proceed smoothly due to boycott of both committee members from insurer and providers over last 8 years. As a result, we have to make an every effort to resolve problems mentioned above and then dream of an advanced national health insurance system.

• Journal of the Korean Society for Marine Environment & Energy
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• v.13 no.3
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• pp.135-150
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• 2010

At the Intergovernmental Meeting held in 1972, the London Convention was adopted to prevent marine pollution from dumping of wastes and other matter. After that, at the special meeting held at the Headquarters of the International Maritime Organization in 1996, the London Convention was revised to consider advances in technology of treatment and disposal of wastes and to reflect changes in understanding of marine environment and then the London Protocol was concluded. The London Protocol states more concrete management system for ocean dumping than the London Convention and also provides that the Meeting of Contracting Parties shall establish those procedures and mechanisms necessary to assess and promote compliance with the Protocol. With the London Protocol in force since 24 March 2006, the Meeting of Contracting Parties adopted the 'Compliance Procedures and Mechanisms (CPM) pursuant to Article 11 of the 1996 Protocol to the London Convention 1972' and established the Compliance Group in 2007. According to the CPM, members of the Compliance Group shall be nominated by Contracting Parties, based on equitable and balanced geographic representation of the five Regional Groups of the United Nations, and elected by the Meeting of Contracting Parties. In 2009, the Republic of Korea nominated a member of the Compliance Group to be subsequently elected by the Meeting of Contracting Parties with the approval of other states in Asia Group. Through the United Nations Regional Group System based on geographical identity or political affinity, Contracting Parties to the London Protocol are expected to form a voting bloc or to exchange information in meetings on the London Protocol. In this sense, it is noteworthy that the London Protocol introduced marine environmental management system for comprehensive prohibition of ocean dumping with exception of the so-called 'reverse-list' which had been earlier adopted by the 'Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 (OSPAR)' whose contracting parties belonged to Western European and Other States Group. In recent years, the jurisdiction of London Protocol has been extended to protect and preserve the marine environment from all sources of pollution. This will make the United Nations Regional Group System play more important roles in the activities associated with the London Protocol. For this reason, this article has considered characteristics of the United Nations Regional Group System and has analyzed influences of this Regional Group System in meetings on the London Protocol. This could provide preliminary information for the Republic of Korea to give due consideration to the United Nations Regional Group System on the activities associated with the London Protocol.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.47
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• pp.25-48
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• 2010

The principle of parties' autonomy is one of general and dominant principles in an international trade contract. When we consider the determinants of negotiation outcomes, the negotiation is affected its result by their culture and custom. A negotiation has extensively been used a lot as a business process. As we negotiate with our clients, we have to check a lot of factors like strategies, their behaviors, culture shock and custom. That why most people have their different life and circumstance. The same words which are used its contract have several meaning. Because the words are influenced by culture and own custom. Also most people abide by their social pattern. Each culture in the world follows its own customs and traditions. Therefore, when we have the negotiation of trade contract, we have to think these factors. Then the negotiation is leaded very successful This dissertation examines the effects of the negotiators' personality and different culture and custom. On the point of a negotiating power, contracting parties are affected a lot by their usage. The culture which is influenced by contracting parties is possible to apply as a key point. So, this study will be analyzed these factors.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.25
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• pp.41-71
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• 2005

"UNIDROIT Principles 2004" focused on an enlargement rather than a revision. An additional Section or Chapter so to speak, which are about, the Authority of a Agents, Third Party Rights, Set-off, Assignment of Rights, Transfer of Obligations and Assignment of Contracts, and Limitation Periods have been added, while the only change of substance made to the 1994 Edition, apart from two paragraphs in the Preamble, and three new provisions in Chapter 1 and 2 which are necessary to adapt the Principles to the needs of electronic contracting. The Principles which have the nature of the restatement of international uniform laws (for example CISG) are continuous exercise. Therefore we should note whether in the future our concerns would be on a additional topics on a improvement of the current text by monitoring the reception of the "UNIDROIT Principles 2004" in practice, and the application by contracting parties. The purposes of the Principles may be classified into three ; the rules of law governing the contract, means of interpreting and supplementing international uniform law or domestic law, or models for national and international legislator. Among them, the function of governing law may be applied by the express choice by the parties or by the implied choice like "general principles of law" or "les mercatoria", and it may be applied in the absence of any choice of law by the parties. Among there importance functions, this writer would like to emphasize the function to supplementing international uniform law instruments. The reason is that the CISG which has been established as an international uniform sales act and to which our country would be a contracting State from March, 2005, needs a lot of gap-filling. For this purpose it is advisable the parties to insert following provisions in their contract. "This contract shall be governed by the CISG, supplemented when necessary by the UNIDROIT Principles 2004" Thus success in practice of the UNIDROIT Principles over the last then years has surpassed the most optimistic expectations. It is hoped that the 2004 Edition of the UNIDROIT Principles will be just as favorably received by legislators, business persons, lawyers, arbitrators and judges and become even better known and more widely used throughout the World.

• 한국무역상무학회:학술대회논문집
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• 2004.12a
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• pp.9-40
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• 2004

"UNIDROIT Principles 2004" focused on an enlargement rather than a revision. An additional Section or Chapter so to speak, which are about, the Authority of a Agents, Third Party Rights, Set-off, Assignment of Rights, Transfer of Obligations and Assignment of Contracts, and Limitation Periods have been added, while the only change of substance made to the 1994 Edition, apart from two paragraphs in the Preamble, and three new provisions in Chapter 1 and 2 which are necessary to adapt the Principles to the needs of electronic contracting. The Principles which have the nature of the restatement of international uniform laws (for example CISG) are continuous exercise. Therefore we should note whether in the future our concerns would be on a additional topics on a improvement of the current text by monitoring the reception of the "UNIDROIT Principles 2004" in practice, and the application by contracting parties. The purposes of the Principles may be classified into three ; the rules of law governing the contract, means of interpreting and supplementing international uniform law or domestic law, or models for national and international legislator. Among them, the function of governing law may be applied by the express choice by the parties or by the implied choice like "general principles of law" or "les mercatoria", and it may be applied in the absence of any choice of law by the parties. Among there importance functions, this writer would like to emphasize the function to supplementing international uniform law instruments. The reason is that the CISG which has been established as an international uniform sales act and to which our country would be a contracting State from March, 2005, needs a lot of gap-filling. For this purpose it is advisable the parties to insert following provisions in their contract. "This contract shall be governed by the CISG, supplemented when necessary by the UNIDROIT Principles 2004" Thus success in practice of the UNIDROIT Principles over the last then years has surpassed the most optimistic expectations. It is hoped that the 2004 Edition of the UNIDROIT Principles will be just as favorably received by legislators, business persons, lawyers, arbitrators and judges and become even better known and more widely used throughout the World.

• Journal of the Korean Institute of Navigation
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• v.17 no.2
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• pp.107-119
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• 1993

When the breach of contract is at issue between the contracting parties, the decision of the contents of obligation has an important meaning. The contents of obligation is decided by the construction of cont-ract. Therefore, the construction of contract has very important meaning for the decision of the contents of obligation. And the Civil Law of Korea includes provisions to settle disputes related to contract, and most of these provisions have the nature of voluntary law. And when there is no intention of the contracting parties, or it is not clear, the voluntary law comes into application(Civil code art. 105). Ultimately, voluntary law not only becomes the standard of the construction of the contract, but also it is applied as the law to settle dispute. Thus, it needs to clear what is the relation between the construc-tion of contract and the application of law. Therefore, this paper aims to clarify the relationship between the construction of contract and the appli-cation of law.