• International Commerce and Information Review
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• v.18 no.4
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• pp.143-164
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• 2016

PICC are dealing with form requirements of international commercial contract under writings in confirmation, conclusion of contract dependent on agreement on specific matters or in a particular form, contract with terms deliberately left open, merger clauses, modification in a particular form. If a writing which is sent within a reasonable time after the conclusion of the contract and which purports to be a confirmation of the contract contains additional or different terms, such terms become part of the contract, unless they materially alter the contract or the recipient, without undue delay, objects to the discrepancy. Where in the course of negotiations one of the parties insists that the contract is not concluded until there is agreement on specific matters or in a particular form, no contract is concluded before agreement is reached on those matters or in that form. If the parties intend to conclude a contract, the fact that they intentionally leave a term to be agreed upon in further negotiations or to be determined by a third person does not prevent a contract from coming into existence. A contract in writing which contains a clause indicating that the writing completely embodies the terms on which the parties have agreed cannot be contradicted or supplemented by evidence of prior statements or agreements. However, such statements or agreements may be used to interpret the writing. A contract in writing which contains a clause requiring any modification or termination by agreement to be in a particular form may not be otherwise modified or terminated.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.55-78
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• 2011

This paper has derived some problems relating to the use of letters of intent which are common occurrence in the international contracts after considering its nature and legal issues. As reviewed before, some problems may occur when a party has documented a stage in the negotiations by letters of intent. Such documents may well explicitly spell out if, and to what extent, the parties should be bound by what they have already agreed or to carry on negotiations in order to reach the final contract. But if the documents are silent, some problems would arise. Contracting parties are therefore well advised to spell out if, and to what extent, they should be bound by such preliminary agreements. Here again, it might be prudent to explicitly set forth that the parties should not be bound until there is a final written contract signed by authorized representatives of the parties but that they shall abstain from such measures which may defeat their stated objective to reach final agreement, for example, by diminishing the value of performance under the contemplated contract.

• 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 Arbitration Studies
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• v.9 no.1
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• pp.139-160
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• 1999

International commercial arbitrations have developed into a simple form in which both parties involved in the dispute by a contract intend to solve the dispute through the legal arbitration system. however nowadays the above traditional form taken by international projects are rarely seen and instead the form of complex arbitration in which many parties are involved has become more and more universal. The complex arbitration means not only many-sided parties concerned but also means a plural number of contract involved in conflicts, a plural number of issues involved in conflicts and a plural number of contracts though their contractors are not in a plural number. However in this report the complex arbitrations will be studied into categories as follows : 1. Pure multi-issue situations, 2. Pure multi-party situations, 3. Pure multi-contract situations. A Pure Multi-Issue arbitration basically includes a plural number of claims between the two parties concerned. A Pure Multi-party case classically presupposes an arbitration clause which involves a plural number of parties concerned. After Party A takes a legal proceeding and then Party B institutes a request to Party C in the above proceeding. In that case the problem arises on whether it is allowed to do so or not. A Pure Multi-Contract case presupposes that when Party A and Party B have independent arbitration clauses based on separate contract relations, respectively, the problem is whether both above-mentioned proceedings can be unified into one or not. As for the above-mentioned complex arbitration, though international treaties are being formed, including the WTO treaties, the NAFTA treaties, the Mercosur treaties and others, legal regulations and customs have not yet been formed domestically. The institutional preparations will be necessitated in consideration of national legal status as well as international treaty relations.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.41
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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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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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.

• International conference on construction engineering and project management
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• 2005.10a
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• pp.469-473
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• 2005

Contract design plays a key role in the life cycle of BOT project. All project management activities and operation processes are arranged in consistence with the document of BOT contract which the public sector ensures that the respective roles and responsibilities set out in the contract are fully understood and fulfilled to the contracted performance criteria. With limited theories to deal with some fundamental issues of BOT contract design, we try to collect data from case studies and formulate several practical principles. The conclusions presented in this paper are analyzed from two cases, one is based on an early case in the United Kingdom, and the other based on the Taiwan High Speed Railway case. The purpose of this paper is not about covering all legal issues about BOT contract design, but rather, our work provides common considerations applicable to the contract parties of a broad range of BOT contracts. The results in this paper shall propose some fundamental principles of the BOT contract design.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.21
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• pp.3-37
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• 2003

English law accepts the basic principle of freedom of contract that the parties should be free to agree on any terms that they like unless their agreement is illegal or otherwise contrary to public policy because it infringes some public interest. On the other hand, it has been limited for hundreds of years on the basis that certain contract terms, particularly in standard form, may alter a distribution of risks that the customer would reasonably intended. The alteration may often result from his simple ignorance caused by either lack of opportunity to become aware of clauses or inability to understand their full potential implications. In addition, it may also result from disparity in bargaining power which does not allow the customer to look after their own interests even if he is fully aware of the unacceptable clauses. In response to this problem, English law has employed both judicial and statutory intervention techniques to control unfair contract terms. This study describes and analyzes in detail how English law regulates such terms, particularly, in standard form, in order to provide legal advice to our sellers residing either in UK or in Korea who plan to enter into UK markets. It also attempts to explore any problem in the existing double legislations of UCTA and UTCCR and put forward future direction of English law in light of the Draft Unfair Terms Bill which was currently proposed by the Law Commissioners. The main concern of this paper will be confined to some of the various aspects of both judicial and statutory control of unfair contract terms in English law which may draw our attention in terms of domestic or international business sales.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.1-22
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• 2016

This study primarily concerns the cases recently held as to the formation of contract under the CISG. In order to put forward the most plausible direction to interpret the rules on the formation of contract under the CISG, it particularly deals with the followings. First, it scrutinizes the rules on the formation of contract, focusing on the requirements of offer and acceptance, the time when such offer and acceptance become effective, the issues on the battle of forms. Second, it introduces two recent interesting cases regarding the formation of contract and provides legal and practical advice to the contracting parties when they intend to conclude a contract under the CISG as a governing law. The followings are practical points that the parties should consider when they enter into contract. First, as any signature or intial made in the offer could be regarded as an acceptance, the parties are required to clarify the meaning of such signature or initials before the conclusion of contract. Second, it is not necessarily required one's signature for an offer to become effective but his name. Third, standard terms cannot be incorporated into the contract simply by reference to web-page or other documents. In order for such terms to be incorporated, it may be necessary to enclose them in the offer or to bring the other party's attention to them. Forth, one should remember that an acceptance by act become effective not when such act is complete, but when it is performed.

• The Korean Journal of Air & Space Law and Policy
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• v.31 no.1
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• pp.99-144
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• 2016

The summary of the case is as follows: a Korean passenger booked and purchased a business class ticket from Air France that was scheduled to depart from Paris and arrive in Seoul. When the passenger arrived at the check-in counter, he was told that all business class seats were occupied. It was because the flight was overbooked by Air France. The passenger cancelled the Air France flight and took another air carrier. After arriving in Korea, he brought suit against Air France for damages. The purpose of this article is to discuss the governing law when interpreting the contract of international air carriage in accordance with the Korean Private International Act (2001) and to analyze air carrier's civil liability for the bumped passenger in the overbooking case. If the parties have not chosen the applicable law the contract shall be governed by the law of the habitual residence of the consumer in the following situations: prior to the conclusion of the contract, the opposite party of the consumer conducted solicitation of transactions and other occupational or business activities by an advertisement in that country or conducted solicitation of transactions and other occupational or business activities by an advertisement into that country from the areas outside that country and the consumer took all the steps necessary for the conclusion of the contract in that country or in case the opposite party of the consumer received an order of the consumer in that country [Article 27 (1), (2) of the Private International Act]. Since the contract of international carriage falls into the consumer contract, the Supreme Court viewed that the governing law of the contract in this case would be the law of the habitual residence of the consumer (Supreme Court Decision 2013Da8410 decided on Aug. 28, 2014). This interpretation differs from the article 5 (4) of Rome Convention(80/934/EEC) which declares that the consumer contract article shall not apply to neither a contract of carriage nor a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence. Even though overbooking can be considered as a common industry practice, an air carrier must burden civil liability in case of breach of contract for the involuntary bumped passenger(Seoul Central District Court Decision 2014Na48391 decided on Jan. 29, 2015). In case of involuntary bumping, an air carrier must offer re-routing to passenger's final destination by an alternative flight. If an air carrier fails to effect performance in accordance with the tenor and purport of the obligation, the involuntary bumped passenger may claim damages(Article 390 of the Civil Code).