• Korea Trade Review
• /
• v.45 no.5
• /
• pp.279-301
• /
• 2020

In the absence of any guidance under statutory law, such as the Rules for Construction of Policy, MIA 1906, judges should follow the general principles of interpretation that apply to all contracts. In simple terms, Contra Proferentem Rule means that if the contents of the terms and conditions are ambiguous, they are interpreted against the writer of the terms and conditions. In the Anglo-American Contract Law, the 'default rule' is an important judicial tool that can supplement defects in contract norms and reinforce the principle of private autonomy through gap-filling techniques related to the interpretation of contracts. In Korea, it is sometimes mentioned in case of precedent, and it has been established as a clear rule. This study analyzes the interpretation of terms and conditions is not in the form that the interpretation of other general contracts and other interpretation principles are valid, but contracts based on terms and conditions are also contracts, and as a general rule, the interpretation of terms and conditions is explained like the general contract interpretation.

• Journal of the Korea Institute of Information and Communication Engineering
• /
• v.19 no.12
• /
• pp.2993-3002
• /
• 2015

INCOTERMS 2010 apply to the International Trade Contract for the last 5 years. The export trade condition and the document type for last 10 years was researched to analysis of the practical problems of INCOTERMS 2010 application. The result of the research; First, several rules which are against the official INCOTERMS 2010 rules are used. Second, the conventional rules like FAS FOB, CIF and CFR which are used for the ocean and inland transportation are applied without any changes. Third, the issue of the time of delivery(transfer of ownership) at the CPT and CIP affects not to activate these two rules. Fourth, the frequency of the DAT use is low. Because, the terminal designate is hard at the point of the contract and the terminal is changeable during the transport. According to these issues, the active publicity campaign is needed for the INCOTERMS 2010. And, the analysis of the terms and the solution of conflict are also needed.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.13
• /
• pp.3-26
• /
• 2000

The International Chamber of Commerce published the millennium edition of its standard trade definitions, Incoterms 2000. Incoterms are a basic reference for sales contracts, in constant daily use throughout the world. The new version will make it easier for traders to do business in the new century, despite the growing volume and complexity of international transactions. Since Incoterms were first published in 1936, they have been updated six times. They precisely define the responsibilities of buyer and seller and are recognized as the international standard by customs authorities and courts in all the main trading nations. It is important for traders to incorporate the correct Incoterms into their international contracts to avoid unnecessary legal problems. Courts may otherwise interpret trade terms according to often widely divergent national laws and unless the use of Incoterms is specified, expensive legal disputes can arise. Division of costs is a most important element in every contract of sale. The parties must know not only who does what but also how costs resulting therefrom should be divided between them. In most cases the fact that a party must do something means that he must also bear the resulting costs, unless otherwise agreed. But there are many exceptions to this principle and uncertainties arise, particularly with respect to services performed by other parties. Also, difficulties arise with respect to the division of costs whenever additional costs are caused by unexpected events, such as hindrances causing a ship to deviate or to remain in a seaport longer than expected. The main principle of the division of costs is clear enough: the seller has to pay costs necessary for the goods to reach the agreed point of delivery, and the buyer has to pay any further costs after that point. But as noted, it is not always easy to implement this principle in practice, since the detailed distribution of functions under the various trade terms is not and cannot be fully defined in Incoterms. Instead, failing precise stipulations in the contract of sale, guidance must be sought from other criteria such as commercial practices used earlier by the same parties or the custom of trade.

• The Journal of Information Technology
• /
• v.7 no.1
• /
• pp.121-136
• /
• 2004

The purpose of this paper is to study the current situations of trade financial EDI based on The BOLERO system, New BOLERO system, The NACCS system in Japan and The EDEN(Electronic DElivery Negotiable document) system and problems in application of marine insurance contracts. Entwined with the contracts of carriage in international sale transactions is a contract of marine insurance by which the goods are insured against maritime perils. In the thesis I tried to explain the problems of paperless marine insurance contracts based on problems in relating to formation of the transit insurance contract and replication the functions of the marine insurance policy electronically.

• Korea Trade Review
• /
• v.45 no.4
• /
• pp.125-136
• /
• 2020

Freight charges are one of the major clauses in the voyage charter. However, in case of unexpected delays at loading and discharging ports, the owner of the ship would not be willing to cover the various costs he should bear by paying the freight receives from the charterer. Therefore, the shipowner, whose time and the ship would be both considered to be an expense, would try to reduce the laytime as least as possible when signing the charter party and to receive compensation such as demurrage and damage for detention from the charterer, just waiting for the agreed laytime to pass. In this study, we review the differences between demurrage and damage for detention and examine the acknowledgeable circumstances through the actual cases. Since the shipowner and the charterer do not often agree on the damage for detention from the respective contract, it is necessary to examine each. Besides, the shipowner and the charterer must acquaint the damage for detention and specify in a contract, to compensate for the actual loss of the shipowner.

• Korea Trade Review
• /
• v.41 no.4
• /
• pp.21-40
• /
• 2016

This study mainly deals with a recent case held as to the formation of contract under the United Nations Convention on International Sale of Goods(CISG). In order to analyse the fact of the case and the justification of its holdings, it examines the rules on the formation of contract under the CISG, focusing on the requirements of offer and acceptance, the time when such offer and acceptance become effective, the issues on the battle of forms. In addition to these, it particularly investigates the rules on a delayed acceptance under the CISG. After looking into those rules, it criticizes the holdings and provides legal and practical advice to contracting parties who intend to conclude a contract under the CISG as a governing law. It finds that whose e-mail in the case amounts to an offer and an acceptance is depended upon the interpretation of intention of the parties expressed in their statement. According to such interpretation, even if a purchase order is requested by the seller for the formation of contract, a contract may be concluded by a simple statement which commits the buyer himself to purchase the seller's goods. This is particularly the case where such request is made only to clarify the buyer's intention to purchase them.

• Journal of Arbitration Studies
• /
• v.27 no.4
• /
• pp.91-113
• /
• 2017

UN Convention on International Sale of Goods (CISG) and International Commercial Arbitration aim at the promotion and facilitation of international trade. Both of them share similar general principles; i.e., party autonomy and pacta sunt servanda. Also they are often applied concurrently in the case of the international commercial trade. The purpose of this article is to investigate whether the CISG could apply the formation of the arbitration clause that is included in the main contract governed by CISG. Sellers and buyers have freedom of designating choice of law that is applied to their contracts. An international arbitration agreement is presumed to be separable from the contract in which it is found. However, arbitration clauses commonly form part of a general contract. Thus, the CISG is intended to be applied to dispute resolution clauses, including arbitration clause even if it is not completely suitable. Notably, there is a fundamental distinction between the CISG and arbitration. The CISG abolished the formalities of contract. New York convention requires Contracting States' Courts to enforce written international agreements to arbitrate.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.67
• /
• pp.49-68
• /
• 2015

In recent years in China, corresponding to a shift in consumption pattern from household basics to greater expenditure on quality of life, new franchising opportunities arise. Although the franchising prospect in China is promising, Korean companies aiming at franchising into China need to be aware of the legal framework for commercial franchise in China as this will have direct impact on their business expansion. Where franchising activities involve trade mark licence, Chinese Franchise Regulations require such trade mark licence agreement to be regulated in accordance with the relevant provisions of the Chinese Trademark Law. Furthermore where one party fails to perform his obligation and it impacts purpose of the contract seriously, the other party could avoid the contract in accordance with the relevant provisions of the Chinese Contract Law. To launch franchising business successfully in China, Korean companies do market research sufficiently before they may commence franchise business. Korean franchisor must register with local authorities in China by own name, and make Chinese partner take charge of management of the distribution network and invitation of franchisee partners.

• Proceedings of the Society of Korea Industrial and System Engineering Conference
• /
• 2002.05a
• /
• pp.343-348
• /
• 2002

We are concerned with a long-term replenishment contract for the ARIMA demand process in a supply chain. The chain is composed of one supplier, one buyer and consumers for a product. The replenishment contract is based upon the well-known (s, Q) policy but allows us to contract future replenishments at a time with a price discount. Due to the larger forecast error of future demand, the buyer should keep a higher level of safety stock to provide the same level of service as the usual (s, Q) policy. However, the buyer can reduce his purchase cost by ordering a larger quantity at a discounted price. Hence, there exists a trade-off between the price discount and the inventory holding cost. For the ARIMA demand process, we present a model for the contract and an algorithm to find the number of the future replenishments. Numerical experiments show that the proposed algorithm is efficient and accurate.

• Journal of Korea Trade
• /
• v.25 no.2
• /
• pp.152-177
• /
• 2021

Purpose - This study analyses the excepted requirement and burden of proof of the carrier due to unseaworthiness through comparison between the marine transport contract and marine insurance contract. Design/methodology - This study uses the legal analytical normative approach. The juridical approach involves reviewing and examining theories, concepts, legal doctrines and legislation that are related to the problems. In this study a literature analysis using academic literature and internet data is conducted. Findings - The burden of proof in case of seaworthiness should be based on presumed fault, not proved fault. The burden of proving unseaworthiness/seaworthiness should shift to the carrier, and should be exercised before seeking the protections of the law or carriage contract. In other words, the insurer cannot escape coverage for unfitness of a vessel which arises while the vessel is at sea, which the assured could not have prevented in the exercise of due diligence. The insurer bears the burden of proving unseaworthiness. The warranty of seaworthiness is implied in hull, but not protection and indemnity policies. The 2015 Act repeals ss. 33(3) and 34 of MIA 1906. Otherwise the provisions of the MIA 1906 remain in force, including the definition of a promissory warranty and the recognition of implied warranties. There is less clarity about the position when the source of the loss occurs before the breach of warranty but the actual loss is suffered after the breach. Nonetheless, by s.10(2) of the 2015 Act the insurer appears not to be liable for any loss occurring after the breach of warranty and before there has been a remedy. Originality/value - When unseaworthiness is identified after the sailing of the vessel, mere acceptance of the ship does not mean the party waives any claims for damages or the right to terminate the contract, provided that failure to comply with the contractual obligations is of critical importance. The burden of proof with regards to loss of damage to a cargo caused by unseaworthiness is regulated by the applicable law. For instance, under the common law, if the cargo claimant alleges that the loss or damage has been caused by unseaworthiness, then he has the burden of proof to establish the followings: (i) that the vessel was unseaworthy at the beginning of the voyage; and that, (ii) that the loss or damage has been caused by such unseaworthiness. In other words, if the warranty of seaworthiness at the inception of the voyage is breached, the breach voids the policy if the ship owner had prior knowledge of the unseaworthy condition. By contrast, knowingly permitting the vessel to break ground in an unseaworthy condition denies liability only for loss or damage proximately caused by the unseaworthiness. Such a breach does not, therefore, void the entire policy, but only serves to exonerate the insurer for loss or damage proximately caused by the unseaworthy condition.