• Journal of Arbitration Studies
• /
• v.24 no.3
• /
• pp.1-31
• /
• 2014

The foundation of the arbitration jurisdiction is the arbitration agreement entered into by the parties to a contract. Usually, only the signatory parties to a contract and the disputes arising from a contract that includes an arbitration clause or to which the arbitration clause relates are the ones that can be submitted to arbitration. This article discusses some of the arguments for extending the arbitration clause in complex arbitrations, that is, in those cases where there are more than two parties, more than two contracts or more than two parties and contracts. Particularly, this paper addresses multiple contract arbitration when the contracts are related. One of the arguments used by the arbitral tribunal for the extension of jurisdiction is the existence of a link between the contracts. Additional arguments include implied consent, participation in the negotiation and performance of a contract and good faith. The article also discusses some of the typical cases of linked contracts in many civil law countries, such as subcontracts, third party beneficiaries and standard terms of contracts, from which arbitral jurisdictions problems may arise. Finally, special attention is given to Article 14 of the 2008 Peruvian Arbitration Law as the first provision in an arbitration law in Latin America that extends the arbitration agreement to non-signatory parties using for this a mixed approach.

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

• Journal of Arbitration Studies
• /
• v.17 no.3
• /
• pp.145-167
• /
• 2007

Digital goods are defined as intangible and non-physical goods, composed of a combination of digital signals, electronically represented as 0 and 1. They are also called as digital products, electronic transmissions, information goods, digital contents, computer information, etc. Digital goods are now traded both domestically and internationally as well as on-line and off-line. Korean government revised the Basic Law on Foreign Trade to include digital goods and services as the scope of foreign trade in 2001. Trade volume of digital goods are increasing in Korea. The supply chains of digital goods from producing the components to selling globally to consumers are different from conventional physical goods. Mostly, digital goods are traded on the license basis rather than ownership contract. End User License Agreements(EULAs), such as shrink-wrap, click- wrap, or browser-wrap licenses are very popular in online transactions. Unlike conventional physical goods. the breach of license contract is closely linked with the infringement of intellectual property rights. Digitalized intellectual property is easy to copy and transmit in the cyber space. In cases of legal disputes from the breach of license contract, commercial arbitration or on-line alternative dispute resolutions(ADRs) are regarded as better approach to solve them rather than court sues. For promoting more secure and reliable international trade of digital goods. arbitration clauses should be included in most of license contracts.

• Korean Journal of Construction Engineering and Management
• /
• v.17 no.4
• /
• pp.76-86
• /
• 2016

Recently, the Contracts of International Construction Business has been decreased from the beginning of 2015 in Korea, although it has been steadily increased until 2014. This trend could be caused by Low-Price Contracts, the lack of Know-how and experience in operating, the poor management of Claims and Low-Profitability in Business. It has been recognized that the qualitative improvement of Business Contacts are necessary for successful Projects. In the Bidding Process, therefore, Experience data as In-House Data and Lessons Learned for projects should be strategically involved to assure riskless offers. Accordingly the Proposal Process are needed to be organized and enhanced by including processes for risks review about technical, marketing and commercial part during the bidding. This paper proposes a Risk Management Process model during Bidding Phase, using Risk Evaluation Method through the project life-cycle. The Concept of Model is to define CSF (Critical Success Factor) in the bidding process and Risk Factors are linked to CSF and Organization based on RAM (Responsibility assignment matrix).

• Environmental and Resource Economics Review
• /
• v.24 no.4
• /
• pp.679-708
• /
• 2015

Almost all of natural gas demand in Korea is currently met by overseas LNG imports. More than 80% of LNG is imported through the mid to long-term contracts with oil-linked pricing. Despite LNG price estimation provides valuable information with various interested parties, an empirical study as well as an econometric model on LNG price hasn't yet been available in Korea. This paper therefore, aims at analyzing not only whether the long-run equilibrium relationship between oil prices and Korean LNG prices exists but also whether structural change occurred in such relationship. Further, it aims at building a conditional VECM taking account of a structural change. According to the final model, an oil price shock is passed through to the LNG prices in nonlinear and different manner from the past.

• Management & Information Systems Review
• /
• v.37 no.2
• /
• pp.187-207
• /
• 2018

This study examines the negative relationship between accounting conservatism and excess executive compensation and examines whether their relationship increases as managerial incentive compensation intensity increases. For this purpose, a total of 2,755 company-years were selected for the analysis of the companies listed on the Korea Stock Exchange from December 2012 to 2016 as the final sample. The results of this study are as follows. First, there is a statistically significant negative relationship between accounting conservatism and manager overpayment. This implies that managers' incentives to distort future cash flow estimates by over booking assets or accounting profits in order to maximize their compensation when manager compensation is linked to firm performance. In this sense, accounting conservatism can reduce opportunistic behavior by restricting managerial accounting choices, which can be interpreted as a reduction in overpayment to managers. Second, we found that the relationship between accounting conservatism and excess executive compensation increases with the incentive compensation for accounting performance. The higher the managerial incentive compensation intensity of accounting performance is, the more likely it is that the manager has the incentive to make earnings adjustments. Therefore, the high level of incentive compensation for accounting performance means that the ex post settling up problem due to over-compensation can become serious. In this case, the higher the managerial incentive compensation intensity for accounting performance, the greater the role and utility of conservatism in manager compensation contracts. This study is based on the fact that it presents empirical evidence on the usefulness of accounting conservatism in managerial compensation contracts theoretically presented by Watts (2003) and the additional basis that conservatism can be used as a useful tool for investment decision.

• Journal of Arbitration Studies
• /
• v.12 no.2
• /
• pp.303-336
• /
• 2003

Incorporation of an arbitration clause by reference to other documents occurs in many international business transactions. The reference is either to another document that contains arbitration clause or to trading rules which contain the arbitration clause, without the main contract mentioning that arbitration has been agreed upon. In fact, incorporation by reference in to a contract of an arbitration clause set forth in another agreement is deemed valid in any number of circumstances, even when the parties to the two contractual instruments are not the same. Difficulties arise when, instead of an express arbitration provision, a contract contains a clause which refers to the trading rules of a certain trade association, so-called external arbitration clause. The U.S. courts which will presume that the parties intended to arbitrate under a particular set of rules when they expressly mentioned arbitration in their agreement, have sometimes refused to enforce contract clauses that do no more than refer to particular trading rules, even if these rules contain provisions binding the parties to arbitrate their disputes. The courts in such cases tend to be careful in determinig whether intent to arbitrate is present. In maritime contracts, the arbitration clause in a charter party is often referred to in the bill of lading. Such reference usually is held binding upon the parties to the contract of carriage, their knowledge of such practice being presumed. A nonsignatory may compell arbitration against a party to an arbitration agreement when that party has entered into a separate contractual relationship with the nonsignatory which incorporates the existing arbitration clause. If a party's arbitration clause is expressly incorporated into a bill of lading, nonsignatories … who are linked to that bill … may be bound to the arbitration agreement of others. An arbitration clause in a charterparty will be incorporated into a bill of lading if either - (a) there are specific words of incorporation in the bill, and the arbitration clause is so worded as to make sense in the context of the bill, and the clause dose not conflict with the express terms of the bill; or (b) there are general words of incorporation in the bill, and the arbitration clause or some other provision in the charter makes it clear that the clause is to govern disputes under the bill as well as under the charter. In all other cases, the arbitration clause is not incorporated into the bill.

• Journal of the Society of Disaster Information
• /
• v.17 no.2
• /
• pp.365-374
• /
• 2021

Purpose: This study aims to study the reinforcement of the connection between the ordering agency and the in-house supplier's disaster reduction activity management system. Method: The requirements for the supplier strategy specified in the enterprise disaster management standard were identified, the application cases of agency A and supplier B were reviewed, and procedures for reinforcing the linkage of the disaster reduction activity management system were derived. Result: In order to clearly define the supplier strategy, which is a requirement of the enterprise disaster management standard, and to reinforce the linkage, it was studied that the procedure applied by the ordering agency and the supplier, and a standardized procedure for sharing the results produced by the procedure were necessary. Conclusion: Among the procedures for establishing a disaster reduction activity management system for in-house suppliers, an improvement plan was proposed to reinforce the linkage of important procedures, and the proposed contents and procedures were suggested to be reflected in the enterprise disaster management standards and related norms.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.19
• /
• pp.224-242
• /
• 2003

The author believes that the main task of study in international trade usage and practice is the management of transactional risks involved in international sale of goods. They are foreign exchange risks, transportation risks, credit risk, risk of miscommunication, etc. In most cases, these risks are more serious and enormous than those involved in domestic sales. Historically, the merchant adventurers organized the voyage abroad, secured trade finance, and went around the ocean with their own or consigned cargo until around the $mid-19^{th}$ century. They did business faceto-face at the trade fair or the open port where they maintained the local offices, so-called "Trading House"(商館). Thererfore, the transactional risks might have been one-sided either with the seller or the buyer. The bottomry seemed a typical arrangement for risk sharing among the interested parties to the adventure. In this way, such organizational arrangements coped with or bore the transactional risks. With the advent of ocean liner services and wireless communication across the national border in the $19^{th}$ century, the business of merchant adventurers developed toward the clear division of labor; sales by mercantile agents, and ocean transportation by the steam ship companies. The international banking helped the process to be accelerated. Then, bills of lading backed up by the statute made it possible to conduct documentary sales with a foreign partner in different country. Thus, FOB terms including ocean freight and CIF terms emerged gradually as standard trade terms in which transactional risks were allocated through negotiation between the seller and the buyer located in different countries. Both of them did not have to go abroad with their cargo. Instead, documentation in compliance with the terms of the contract(plus an L/C in some cases) must by 'strictly' fulfilled. In other words, the set of contractual documents must be tendered in advance of the arrival of the goods at port of discharge. Trust or reliance is placed on such contractual paper documents. However, the container transport services introduced as international intermodal transport since the late 1960s frequently caused the earlier arrival of the goods at the destination before the presentation of the set of paper documents, which may take 5 to 10% of the amount of transaction. In addition, the size of the container vessel required the speedy transport documentation before sailing from the port of loading. In these circumstances, computerized processing of transport related documents became essential for inexpensive transaction cost and uninterrupted distribution of the goods. Such computerization does not stop at the phase of transportation but extends to cover the whole process of international trade, transforming the documentary sales into less-paper trade and further into paperless trade, i.e., EDI or E-Commerce. Now we face the other side of the coin, which is data security and paperless transfer of legal rights and obligations. Unfortunately, these issues are not effectively covered by a set of contracts only. Obviously, EDI or E-Commerce is based on the common business process and harmonized system of various data codes as well as the standard message formats. This essential feature of E-Commerce needs effective coordination of different divisions of business and tight control over credit arrangements in addition to the standard contract of sales. In a few word, information does not alway invite "trust". Credit flows from people, or close organizational tie-ups. It is our common understanding that, without well-orchestrated organizational arrangements made by leading companies, E-Commerce does not work well for paperless trade. With such arrangements well in place, participating E-business members do not need to seriously care for credit risk. Finally, it is also clear that E-International Commerce must be linked up with a set of government EDIs such as NACCS, Port EDI, JETRAS, etc, in Japan. Therefore, there is still a long way before us to go for E-Commerce in practice, not on the top of information manager's desk.

• Korean Journal of Construction Engineering and Management
• /
• v.18 no.6
• /
• pp.65-77
• /
• 2017

Recently, many Korean major construction companies are suffering from profit loss mainly due to a direct impact from delays in their overseas projects. In general, changes are inevitable in a large-scale project, and most of changes are directly linked to construction delay. Therefore, in the event that an extension of time is necessary due to a change, the contractor must manage the delay based on the condition of the contract to effectively manage risks from delay to the completion date. Thus it is important to understand delay protocol defined in the condition of the contract early in the project, but there have been few or no study to propose methodology or tool to support this effort. This paper presents a review on the project planning and controling practices of major Korean construction companies along with the issues on delay claims and disputes in mega-international projects and suggests a tool to assess delay risk in the condition of the contract. To propose a delay risk assessment model for international construction projects, major standard conditions of contract have been reviewed including FIDIC Red Book(1999), PSSCOC(2014) and SIA 9th Edition(2010). To reflect recent trend of major international owners, standard conditions which they are utilizing for their projects also have been reviewed including those of ARAMCO and QP. The model provides a categories of risks to be reviewed on the condition of the contract along with standard level of the risk which is common in the international standard form of the contracts. This study also performed a case study on an actual international project to confirm the effectiveness of proposed model to identify and respond to a delay risk of a project.