• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.193-213
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• 2000

The CISG has been legislated for playing roles as uniform rules which govern international sale of goods. The job of getting unification of the diverse domestic legal systems required almost half century of work. In the process of making the Convention some rules resulted from compromises of nation's relevant interests. The Convention, however, promoted both the legal certainty and harmonization in international trade in that the uniform rules suggest the appropriate resolution to the legal problems in the course of concluding a contract as well as in remedies for breach of contract. This paper focuses systematically on the scope of applicability of the CISG. The Convention deals with contracts for the international sale of goods. However, it does not apply to all kinds of the international sale of goods. The CISG confines the sphere of applicability to a certain type of sales. First of all, the CISG is limited to those contracts having been concluded between a particular group of persons, which is called a personal aspect of applicability. Secondly, the CISG covers a specific category of sales, which is called a material aspect of applicability. Thirdly, the CISG are concluded within a particular period of time, which is called a temporal aspect of applicability. Lastly, the CISG is limited to contracts falling within a given territorial sphere, which is called a territorial aspect of applicability.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.50
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• pp.3-25
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• 2011

The purpose of this paper is to examine the use of LD Clause against the seller's breach of contract in connection with delivering the goods in the international sales contract, and international guarantee system using standby L/C or demand guarantee. For this purpose, the author, first, considered the outline of the buyer's remedies in cases that the seller had not performed his obligations in contract and the difficulties in the buyer's remedies. As alternatives for overcoming the difficulties, this author recommended the LD Clauses (Liquidated Damage Clauses) based on ICC Model International Sales Contract, and explained each Model Clause. To enhance the feasibility of LD Clause, this author suggested the guarantee system, like the standby L/C or demand guarantee. But these guarantee systems have several limitations in practical use. Thus, these guarantee systems would greatly contribute to Korean exportation in the future. The reason is that the Korean export structure would be more complex and the period of sales contract would be longer and longer, which result to in long-terms supply contracts. These changes would require the guarantee much urgently.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.147-175
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• 2014

In contracts for the international sale of goods, a seller must deliver appropriate goods and hand over relevant documents according to a contract, which will transfer the ownership of the goods to a buyer. In this case, if there are defects in the contracted goods, the warranty liability will occur. However, in the United Nations Convention on Contracts for the International Sale of Goods (CISG), a term-the conformity of the goods to the contract-is used universally instead of the warranty. According to the CISG, a seller must deliver goods in conformance with the relevant contract in terms of quantity, quality, and specifications, and they must be contained in vessels or in packages according to the specifications in the contract. In addition, a certain set of requirements for conformity will be applied implicitly except when there is a separate agreement between parties. Further, the base period of conformity concerning the defects of goods is the point when the risk is transferred to the buyer. A seller shall be obliged to deliver goods that do not belong to a third party or subject to a claim then, and such obligations shall affect the right or claim of a third party to some extent based on intellectual property rights clauses. If the goods delivered by the seller lack conformity, or incur right infringement or claim of a third party, then it shall be regarded as a default item per the obligation of the seller. Thus, the buyer can exercise diverse means of relief as specified in Chapter 2, Section 3 (Article 45-Article 52) of the CISG. However, such means of relief have been utilized in various ways for individual cases as shown in judicial precedents made until now. Contracting parties shall thus keep in mind that it is best for them to make every contract airtight and they should implement each contract thoroughly and faithfully to cope with any possible occurrence of a commercial dispute.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.59-98
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• 2013

Risk of loss is a term used in the law of contracts to determine which party should bear the burden of risk for damage occurring to goods after the sale has been completed, but before delivery has occurred. Under the Uniform Commercial Code (UCC), there are four risk of loss rules, in order of application. First, it is agreement that is the agreement of the parties controls. Second, the breaching party is liable for any uninsured loss even though breach is unrelated to the problem. Hence, if the breach is the time of delivery, and the goods show up broken, then the breaching rule applies risk of loss on the seller. Third, the delivery by common carrier other than by seller is necessary: Risk of loss shifts from seller to buyer at the time that seller completes its delivery obligations; If it is a destination contract, then risk of loss is on the seller; If it is a delivery contract, then the risk of loss is on the buyer. Fourth, if the seller is a merchant, then the risk of loss shifts to the buyer upon buyer's receipt of the goods. If the buyer never takes possession, then the seller still has the risk of loss. This paper discusses problems of risk of loss under the American law. 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 risk of loss issues for Korean law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.57
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• pp.35-60
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• 2013

The Incoterms which is one of the most useful international instrument for sale of goods provides when a contract goods deliver, risk passes and how costs are allocated between seller and buyer on the contract as long as they agree to use a rule of the Incoterms rules. The Incoterms rules have come into effective to use for an international or domestic trade of goods since January 2011, which have been modified several times since these established by ICC in 1936. The origin of Incoterms rules may had been appeared from English traditional FOB terms that had been affected to American regulations for the sale of goods. The Incoterms rules which had been started from the traditional English FOB terms and American FOB terms have been expanded other trade terms, such as CIF. Although FOB is based on the COD(Cash on Delivery), it is possible replaced COD to CAD(Cash against Delivery) through the use of Bill of Lading and Letter of Credit in the international sale of goods between seller and buyer according to the development of infrastructures on the international commercial transactions. This article exercises the process of transition of the Incoterms rules, being based on the English and American traditional FOB contract form through review literatures, judical precedents and provisions. Then this article provides some feasible alternatives to attempting to resolve some regulation problems of FCA, CPT, CIP, and D-rules in the Incoterms$^{(R)}$ 2010.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.67
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• pp.1-21
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• 2015

U. N. Convention on Contracts for the International Sale of Goods (hereinafter the 'CISG' or the 'Convention') has been in force more than 37 years. The CISG responds to the need for uniform sales law. First of all, the biggest barrier against the uniformity in sales law is so-called "homeward trend". Professor Honnold, who served as secretary of UNCITRAL during the time in which the CISG was developed, pointed out the danger of "homeward trend" like this in his Article. "One threat to international uniformity in interpretation is a natural tendency to read the international text through the lenses of domestic law." CISG Article 79 is the principal provision governing the extent to which a party is exempt from liability for a failure to perform any of his obligations due to an impediment beyond his control. So-called 'Manfred Forberich' decision regarding the article 79 represents the most extreme example of what is likely the most dangerous error that tribunals applying the CISG can make. CISG Article 79 only governs impossibility of performance, and there is a controversy whether a disturbance which does not fully exclude performance, but it considerably more difficult or onerous(hardship, change of circumstances, economic impossibility) can be considered as an impediment. Unlike PICC and PECL, the CISG governs contract of sale. Therefore, events such as a sudden increase in the price of raw materials or a dramatic devaluation of currency, will not allow the seller to avoid his liability for non-delivery of the goods or to require renegotiation of the terms of the contract of sale. We should bear in mind that the CISG should be interpreted and applied in the context of the CISG itself.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.3-41
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• 2011

In this article, the author have studied on main revisions and some recommendations of the Incoterms(R) 2010. Main revisions are as belows. 1. Two new Incoterms rules -DAT and DAP- have replaced the Incoterms 2000 rules DAF, DES, DEQ and DDU. 2. New classification of the Incoterms(R) 2010 are adopted. First class is Rules for any mode or modes of transport(EXW, FCA, CPT, CIP, DAT, DAP and DDP belong to this class.) and second class is rules for sea and inland waterway transport(FAS, FOB, CFR and CIF belong to this class.). 3. Incoterms(R) 2010 rules formally recognizes that they are available for application to both international and domestic sale contracts. 4. The Guidance Notes and Introduction are not part of the actual Incoterms(R) 2010 rules. 5. Under the FOB, CFR and CIF, all mention of the ship's rail as the point of delivery has been omitted in preference for the goods being delivered when they are "on board" the vessel. 6. Incoterms(R) 2010 rules include the obligation to 'procure goods shipped' as an alternative to the obligation to ship goods in the relevant Incoterms rules. 7. Incoterms(R) 2010 rules give electronic means of communication the same effect as paper communication. 8. Incoterms(R) 2010 rules have allocated obligations between the buyer and seller to obtain or to render assistance in obtaining security-related clearances. such as chain-of custody information. Some recommendations are as belows. 1. The parties must incorporate the Incoterms(R) 2010 rules into their contract of sale. 2. The parties must choose the appropriate Incoterms(R) 2010 rules. 3. Specify the place or port as precisely as possible in their contract of sale. 4. Remember that Incoterms(R) 2010 rules do not give the parties a complete contract of sale. 5. Incoterms(R) 2010 rules do not prohibit alteration of Incoterms rule, but there are dangers in so doings. In order to avoid any unwelcome surprises, the parties would need to make the intended effect of such alterations extremely clear in their contract.

• Korea Trade Review
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• v.42 no.2
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• pp.29-52
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• 2017

This research employed a comparative legal analysis to explore the rules of CISG, Incoterms 2010, Chinese Contract Law, and Korean Civil Act with precedent researches and present customs in the international sale of goods. The results of this study show that there are some differences in the provisions of seller's delivery obligation to those regulations, such as the time and place of delivery goods, the conformity of goods on the contract, and delivery of documents. Therefore, the parties of contract, especially between Korean and Chinese traders, must be aware of the differences in the provisions of those selected regulations in order to reduce disputes between them, out of or in relation to or in connection with their sales contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.2
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• pp.45-62
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• 1991

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.9
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• pp.45-82
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• 1996