• 무역상무연구
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• 제43권
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• pp.53-74
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• 2009

INCOTERMS have been changed almost every 10 years since ICC established INCOTERMS as trade terms for International transaction. Recently transportation has become bigger, and modernized by means of electronic appliances such as RFID, IT, and containerization. FRC, FOR/FOT, FOA were added in INCOTERMS1980 and every conditions are unified into three alphabets in INCOTERMS1990. The best features of INCOTERMS2000 are that FCA substitute FRC, FOR/FOT, FOA and customs formalities were simplified to make clear for each party of contract. It seems that business circles still stick to old customs of their trade like FOB or CIF not only in Korea but in an international practice even though there have been several revisions of INCOTERMS until now. ICC have tried to provide INCOTERMS3000 to solve problems between a theory and an actual condition of international trade. This study has tried to suggest opinions against INCOTERMS3000 and has surveyed a recognition, an actual using situation and issues of INCOTERMS to get improvements. For a recognition of INCOTERMS has been spread as you can find at tables many kinds of business circles still stick to old customs of their trade terms FOB and CIF. Now there are two alternative plans. Firstly, we need to suggest improvements against inconsistency of INCOTERMS to be applied on newly revised INCOTERMS3000 and educating business circles to use proper conditions of INCOTERMS for their doing business. Secondly, we shall participate in revising INCOTERMS to activate multimodal transport conditions of INCOTERMS and provide solutions to fill gap between a theory and an actual condition of international trade. It seems that terms of multimodal transport such as FCA, CPT, or CIP can be a perfect condition for each party of contract. We have examined the inconsistent features of Ship's rail and notions of on board, and observed how to activate multimodal transport terms. These would be hot issues of next revision of INCOTERMS and we provided improvements on each trade terms, THC charges, or others against INCOTERMS.

• 무역상무연구
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• 제66권
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• pp.75-94
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• 2015

The aim of this study is to examine the obligations of delivery of the goods focusing on the methods of delivery under the Incoterms 2010, comparing with CISG. The Incoterms 2010 provides various methods of delivery of the goods under the each rule(11 rules). And it is a little confusing for the parties of the contract of sales. This study reviewed specific methods of delivery of the goods with the view of practitioner. The purpose of Incoterms is to avoid misunderstanding of the contract of sales and to promote the international transactions. The uncertainties of the Incoterms 2010 shall cause disputes between the parties. Especially, when vehicles are used to pick up and deliver the goods, which party is responsible for the loading and unloading the goods. Under the D-term, which party is responsible for unloading the goods from the vehicle reached at the named place of destination is a little confusing. This study suggest some ideas on the specific methods of delivery to mitigate uncertainties and accept current practices at the field. Firstly, under the EXW rule, the seller must deliver the goods on the arriving means of transport at the seller's premises. Secondly, under the FCA rule, the seller must deliver the goods unloaded at the other place except seller's premises. Thirdly, under the CPT, CIP rules, the seller must deliver the goods unloaded irrespective of the mode of transport at the place of destination. Fourthly, the FOB, CFR, CIF rules must adapt the container transport practice.

• 무역상무연구
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• 제64권
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• pp.3-37
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• 2014

The purpose of this paper is to examine thoroughly on passing of risk in contracts for the international sale of goods. Articles 66~70 of the CISG contain provisions on passing of risk. Article 66 states the main effect of passing risk to the buyer. Article 67~69 determine the decisive point in time which the risk passes from the seller to the buyer and article 70 attempts to explain the relation between passing of risk and fundamental breach of contract by the seller. As in the case corresponding Incoterms rules, the main issue to be resolved is which party should bear the economic consequences in the event that the goods are accidentally lost, damages or destroyed. Many cases also apply CISG articles 66~70 to contracts in which parties not agree on the use of trade terms such as CIF, CFR, FOB and FCA in Incoterms[R] 2010 Rule that provide for when the risk passes. In order to minimize disputes that may arise under contract, when drawing up a contracts for the international sale of goods, the specifics of agreement should be clearly stipulated. Consequently, the parties of contracts for the international sale of goods should take adequate measures, and it is required to prepare the contracts clearly as the specific terms to prevent and resolve contractual disputes on passing of risk.

• 무역상무연구
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• 제41권
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• pp.103-132
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• 2009

In international sales of goods, the buyer must pay the price for the goods as required by the contract and CISG, The buyer's this obligation includes taking such steps and complying with such formalities as may be required under the contract, which includes providing the seller with relevant letter of credit through the issuing bank. Where the parties have not stipulated the time limit within which the credit should be opened, but there is an agreed date or period for shipment, the time limit for the L/C opening should be calculated back from the agreed date of shipment or the first date of shipment, while, in addition, the buyer should open the L/C sufficiently earlier than the shipment date in order for the seller to be able to know the L/C's opening before beginning to ship the goods. The L/C provided the buyer should conform to the contract of sale. Therefore, for example, when an unconfirmed L/C is provided violating the agreement or the L/C opened states that, under a FOB contract, a "freght prepaid" bill of lading shall be presented as a required document of the L/C, the buyer has failed to perform his obligation. If the buyer fails to perform his obligations to provide the letter of credit, the seller may require the buyer to perform that obligation; may fix an additional period of time of reasonable length for performance of the obligation; or, the seller may declare the contract avoided, if the failure amounts to a fundamental breach of contract, or if the buyer does not, within the additional period of time fixed by the seller, perform the obligation; and the seller claim damages. However, when a relevant L/C has been issued for the seller, as a rule, he cannot ask directly for the buyer to pay the price before avail himself of the L/C first.

• 무역상무연구
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• 제20권
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• pp.63-82
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• 2003

The time of examination of buyer in international sales contract is very significant, because the time is related with the period of claim in buyer's aspect. From the legal point of view, the time of delivery, the time of examination and the time of quality decision should be in accord. But the buyer, whose main place of business is located in importing country, wants to examine the goods in his own country. Therefore in CIF or FOB Contract, the place of delivery and the place of examination are divided. Thus the CISG, the Common Law System and the Civil Law System including Korean Law stipulate the buyer's examination at the destination if the sales contract involves carriage of the goods. This author, from the buyer's perspective, would like to make the following suggestions in regard to the time of examination when the sales contract is made. First, the time of examination and the time of quality decision should be in accord, even though the time of delivery is different. Second, the buyer should clearly indicate the time, the place, the inspector, the particulars and the burden of proof in regard to examination when contracting. Third, the buyer should also clearly indicate the period of notice for the lack of conformity in Claim Clause of sales contract, which should be counted from the time of examination. Fourth, the buyer should remember that he many lose the right to rely on the lack of conformity of the goods if he does not give the seller notice thereof within the stipulated time or reasonable time. Finally, if the buyer wants, to examine the goods at the place of shipment, it is desirable for the buyer to designate internationally recognized inspection organization like SGS.

• 무역상무연구
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• 제62권
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• pp.113-132
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• 2014

Judicial decisions make it clear that in all CIF, CFR and FOB contracts, incorporation of charter party into sale contracts is the only effective way for recovery of demurrage in the context of sale contracts. The case law would appear to clarify a number of important issues: The words of incorporation in the sale contract play a vital role in determining the extent of the influence of the charter party principles over the sale contract. Hence, unless it is expressly provided otherwise, the courts tend to apply the charter party principles to the incorporated charter party provisions to the extent that they make sense in the context of sale contract, and that they do not undermine the underlying foundations of international trade law. In this respect the courts also take into account the factual background of the case with a view to objectively ascertaining the intention of the parties. The law is, however, less clear on the effects of the incorporated charter party provisions in sale contracts. There is still no straightforward answer to the question of to what extent the charter party law is applied to the incorporated charter party provisions in the context of sale contracts. The case law on this matter merely provides piecemeal solutions, and it is not possible to extract a general rule which will help interpretation of those charter party provisions which have not yet been subject to litigation or arbitration. Therefore, it should be noted that the parties would prepare Incorporation Clause in their sale contracts in reliance of the rules to achieve the desired results.

• 무역상무연구
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• 제37권
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• pp.61-85
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• 2008

Bills of lading are crucial in international sales on shipment terms since they guard buyers against loss of or damage to the goods in transit by giving them the rights against carriers. A bill of lading, as document of title, gives the buyer the right to demand physical possession of the goods from the carrier and enables the buyer who is in possession of damaged or short-delivered goods to sue the carrier. In this context the buyer in sales on CIF or CFR terms or FOB terms with additional services benefits from the bill of lading which functions as a receipt of goods and a evidence of the terms of the contract of carriage. Protection of such buyer's interests can be provided in the sale contract through appropriate express or implied terms on the seller's documentary obligations: Which transport document, a bill of lading or a sea waybill, is required? Who should be named as the consignee in the transport document and, in case of bill of lading, by whom should the bill be endorsed? What should be stated in the bill of lading for the quantity of the goods? How about a bill of lading that contains so called "unknown clause"? How many bills of lading for the entire contract goods should be tendered? Can a bill of lading stating that the goods have been shipped in apparent good order and condition also state that the goods were damaged after shipment? This paper seeks to provide answers for these particular questions.

• 무역상무연구
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• 제13권
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• pp.151-192
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• 2000

This study has been focused on the revisions and characteristics of the 7 non-maritime trade terms(EXW, FCA, CPT, CIP, DAF, DDU and DDP) in Incoterms 2000. Main characteristics are as follows: First, the use of different expressions intended to convey the same meaning has been avoided and the same expressions as appear CISG have been used. Second, the content of preamble in each trade terms has been shortened and definitedly. Third, if the parties are going to use variants of trade terms in Incotrems 2000, the meanings should be made clear by adding explicit wording in the contract of sale. Main revisions of the 7 trade terms are as belows: First, Incoterms 2000 has emphasized that in EXW, the seller delivers when he places the goods at the disposal of the buyer at the seller's premises or another named place(i.e. works, factory, warehouse, etc.) not cleared for export and not loaded on any collecting vehicle. Second, in FCA, delivery is completed; a) If delivery occurs at the seller's premises, the seller is responsible for loading. b) If delivery occurs at any other place, the seller is not responsible for unloading. Third, in CPT and CIP, all costs and charges relating to the goods whilst in transit until their arrival at the agreed place of destination, unloading costs and all duties, taxes and other charges as well as the costs of carrying out customs formalities payable upon import of the goods and for their transit through any country are linked with the content under the contract of carriage. Fourth, Incoterms 2000 has emphasized that in DAF, the seller delivers when the goods are placed at the disposal of the buyer on the arriving means of transport not unloaded, cleared for export, but not cleared for import at the named point and place at the frontier, but before the customs border of the adjoining country. Fifth, Incoterms 2000 has emphasized that in DDU, the seller delivers the goods to the buyer, not cleared for import(in DDP, cleared for import), and not unloaded from any arriving means of transport at the named place of destination. Sixth, if the parties do not intend to deliver the goods across the ship's rail, FCA, CPT and CIP instead of FOB, CFR and CIF should be used.

• 무역상무연구
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• 제12권
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• pp.163-200
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• 1999

The CISG entrusts many problems to trade or practice : for example the problems which can't be compromised between civil law system and common law system ; the problems in which the application of usage or practice in universal ; the problems of rapid change according to trade circumstance. The purpose of this paper is to confirm whether the CISG is accomodating the usage or practice in its Text, and to find which topic is most closely related to usage or practice in CISG. The Article 9 in the CISG is a provision of usages or practices applicable to contract. But the problems of the CISG in the accomodation of usages or practices are that it lacks the definitions of ‘usage’ and ‘practices’, the CISG is not concerned with the validity of any usage according to Article 4, and the application of usage or practice may differ in litigation and arbitration The topics such as delivery of goods, payment of price and the transfer of risk are most closely related to usages and practices. The delivery of goods and the transfer of risk are determined by the trade terms like FOB or CIF. But the method of identification and the risk for the sale of goods in transit can't be determined by the trade terms in INCOTERMS(1990). So the CISG may serve as complementing role. In payment of price, the trade term does not refer to the time and place of payment. So the CISG may be the basis of interpretation. Likewise the usages and practices such as trade terms, UCP and so on, can be expected to play a significant role in complementing and interpreting the CISG.

• 무역상무연구
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• 제60권
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• pp.3-26
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• 2013

Seller's obligation on the Delivery of Goods and Handing over the Documents are key elements in Contracts for the International Sale of Goods. The United Nations Convention on Contracts for the International Sale of Goods(CISG) has been entered into force on 1 January 1988 to create international certainty and uniformity in the law and to govern issues that arise in an international sale of goods transaction. The Incoterms were first published by the ICC in 1936 and were most recently revised in 2010. Incoterms 2010 are entering into force on 1 January 2011. The Incoterms focus on the seller's delivery obligations and reflect the principle that the risk of loss or damage to the goods passes from the seller to the buyer when the seller has fulfilled its obligations to deliver the goods. This study highlights basic rules covering seller's obligation of delivery of goods and handing over the documents under the Incoterms 2010 and the United Nations Convention and Contracts for the International Sale of Goods. In the second chapter, this study will provide analyses and compare these two legal systems in relation to the basic rules governing delivery of goods and passing of risks in contract of sale. This chapter evaluates the meaning of Article 31 and Article 67(1) and FOB, CFR, CIF & FCA, CPT, CIP terms of Incoterms 2010. Chapter Three will focus on handing over the documents. Article 30 CISG imposes the seller's primary obligations to deliver the goods and to hand over documents relating to them. Article 34 CISG supplements the seller's obligation in relation to documents by providing that the seller must hand over documents relating to the goods. In contrast, Article 58(1) CISG imposes on the buyer the obligation to pay only when it has received the goods or documents controlling their disposition. I reviewed only some of the documents relating to the goods are documents controlling their disposition. This chapter considers the meaning of the phrase "documents that control the disposition of the goods and do not control disposition of the goods." Finally, the fourth chapter will assess the meaning of rules of CISG and Incoterms 2010.