• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.371-393
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• 2009

The biggest issue of the current international maritime transport is that EU had decided to apply the Competition Law about Shipping Conference since 2008 and UNCITRAL Convention which is the substitute of international rules related with existing maritime transport passed UN General Assembly. This movement indicates that international rules of international maritime transport are not focusing on shipping companies or forwarders anymore but consignors. According to the current circumstances, it is time for us to convert existing shipping companies and forwarders centered rules system into consignors centered international rules system as well. Thus, this study has compared and analyzed between each country's law of Shipping Conference and Korean governing law, Ocean Shipping Act.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.151-182
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• 2006

The International Institute for the Unification of Private Law (UNIDROIT) established UNIDROIT principles, which could be applicable as international unified rules. The UNIDROIT Principles plays the role of interpreting and complementing CISG and functions as a law applicable to international commercial disputes. As shown by cases of practical application so far, the principles are expected to be applied frequently to international commercial arbitration in the future. In the situation that there is no internationally unified judicature, it is necessary to promote rational dispute resolution and legal stability through arbitration by adopting the UNIDROIT Principles of Lex Mercatoria as a governing law of international commercial contracts. In conclusion, UNIDROIT principles, along with CISG, are expected to playa great role as the applicable law of international commercial contracts and as standards for resolving international commercial disputes.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.63
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• pp.63-88
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• 2014

The culpa in contrahendo is a doctrine that "damages should be recoverable against the party whose blameworthy conduct during negotiations for a contract brought about its invalidity or prevented its perfection". In China, Chinese Civil law gradually adopted Culpa in Contrahendo under the former 'economic contract law' and the 'general rules of the civil law', then the legal system of culpa in contrahendo was formally established under Contract Law of the People's Republic of China(CLPRC) in 1999. To put it concretely, Art. 42, 43, 58 of the Chinese Civil Law expressly establishes a culpa in contrahendo liability derived from a principle of good faith governing pre-contractual negotiations. however, in general, culpa in contrahendo has been recognized a independent legal liability as distinct from contractual default liability and torts liability. This article provides a general description of the characteristics of culpa in contrahendo under Chinese Contract Law, and both theoretical issues that have arisen in Chinese academics and relevant important precedent in Chinese Courts. This article also analyzed trend of judgment on precedents that the Supreme Peoples's Court of the PRC applied culpa in contrahendo.

• Journal of Arbitration Studies
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• v.22 no.1
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• pp.65-88
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• 2012

Even though there are some discrepancies in detail with the legal characteristic of the issuing bank's notice to the beneficiary of opening of the letter of credit, article 25 of "the Korean Private International Act(hereunder, 'KPIA')" can be applied to the legal relation between the issuing bank and the beneficiary or the negotiating bank. According to article 26 of the KPIA, if there is no agreement between the issuing bank and its opponent party as to the governing law issues, a state's law which has the closest relationship with the subject case may be applied. In the latter case, given the facts that the issuing bank plays important roles in every phasis of the sale of goods by the letter of credit, a law of place where the issuing bank's business premises is situated(the $lex$ $situs$) can be the applicable law. Meanwhile, "the Korean Supreme Court(hereunder 'KSC')" held that the beneficiary or the negotiating bank can claim any damages arising due to the refusal or deferred payment of the issuing bank, and the law which governs the above mentioned situation is the same law that is applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank. The main reason of the KSC's ruling is that the nature of the legitimate interest rate which is stated in article 3 of "the Act on Special Cases concerning Expedition etc. of Legal Proceeding(hereunder 'ASCELP')" is substantial matters, not procedural. Taking into account, however, that the main object of ASCELP lies in expedition of legal proceeding, prompt realization of people's rights and duties, and prevention of delayed legal proceeding, it is recommendable that ASCELP, instead of the law applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank, should be applied to the cases in which the malicious debtor's only and main purpose is delaying the legal proceedings. On the other hand, even if the issuing bank's duty of examination of the documents which were tendered by the beneficiary or the negotiating bank is restricted to the formality and strict conformity of the documents and not the substantiality of the documents, the issuing bank still has to examine the documents with due diligence that is required to the banks whose main business is sales of documents, not the real goods. In this regard, under the circumstances where the document lacked the regularity and/or the formality on its face because of the forgery of the document and where it was expected that an ordinary banker might have easily found any faults with the document, the issuing bank must compensate any parties for damages when it pays money without due diligence as a banker who engaged in the sales of documents.

• The Korean Journal of Air & Space Law and Policy
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• v.27 no.2
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• pp.193-209
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• 2012

China's airline industry is experiencing a booming development as one hand, on the other hand the incidents involving unruly behaviour on board aircraft also becomes a growing concern for the whole industry. The thesis examines the basic issues concerning the unruly behaviour, such as definition of unruly behaviour, the impact and root causes of unruly behaviour. Then it focuses on the China's legal sources governing the problem of unruly behaviour. Generally speaking, China's legislation with this respect is systematic and self-contained, except some minor shortcomings which need to be revised. Finally the thesis holds the view that the preventative measures jointly contributed by all the parties concerned are something more important than the legislation itself.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.101-131
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• 2011

The Governing Council of UNIDROIT at its 90th session adopted on 10 May 2011 the third edition of the Principles of International Commercial Contracts("UNIDROIT Principles 2010"). The UNIDROIT Principles of International Commercial Contracts first published in 1994 and in a second edition in 2004, are taken by legislators worldwide as a model for contract law reform and increasingly used in international contracting and arbitration practice, as well as by the courts to interpret and supplement the applicable domestic law. The UNIDROIT Principles are particularly useful to parties when negotiating and drafting international contracts. The new edition of the Principles, UNIDROIT Principles 2010, prepared by a group of experts from all over the world including representatives of numerous international organizations and arbitration centers. The UNIDROIT Principles 2010 contain new provisions on restitution in case of failed contracts, illegality, conditions, and plurality of obligors and obligees, while with respect to the text of the 2004 edition the only significant changes made relate to the Comments to Article 1.4.

• Steel and Composite Structures
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• v.37 no.5
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• pp.621-632
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• 2020

This research deals with the study of vibrational behavior of armchair and zigzag single-walled carbon nanotubes invoking extended Love shell theory. The effects of different physical and material parameters on the fundamental frequencies are investigated. By using volume fraction for power law index, the fundamental natural frequency spectra for two forms of single-walled carbon nanotubes are calculated. The influence of frequencies against length-to-diameter ratios with varying power law index are investigated in detail for these tubes. To discretize the governing equation in eigen-value form, wave propagation approach is developed. Complex exponential functions have been used and the axial model depends on boundary condition that has been described at the edges of carbon nanotubes to calculate the axial modal dependence. Computer software MATLAB is utilized for the frequencies of single-walled carbon nanotubes and current results shows a good stability with comparison of other studies.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.239-259
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• 2016

An increasing number of transactions in the bilateral trade between Korea and China rely on collection and remittance, resulting in an increase in exporters' demand for trade financing. Therefore, there is a need to vitalize forfaiting transactions using drafts or promissory notes, which are based on the collections. In the forfaiting transactions, exporters transfer a payment claim to forfaiters on a non-recourse basis through a without recourse endorsement. However, forfaiters do not know importers' creditworthiness and ability to repay drafts or promissory notes; thus, they need a bank aval as a means of credit support. In forfaiting using aval, the drafts or promissory notes are transferred internationally. However, there is no internationally unified law that regulates drafts and promissory notes, and the governing laws related to such drafts and promissory notes do not accept the "principle of party autonomy." Therefore, there is no other choice but to apply the laws of a certain country, in the event of any dispute relating to such drafts or promissory notes. This paper examined forfaiting using aval from the comparative law perspective, focusing on the "Law of China on Negotiable Instruments." The results of this study may to provide businesses involved in international trade with practical guidance and assistance when using forfaiting with aval, especially in trade with China.

• Journal of Korea Trade
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• v.27 no.3
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• pp.43-64
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• 2023

Purpose - This paper studies whether CISG can be a suitable governing law for pure service contracts. When CISG was first drafted, there was little disagreement on the fact that contracts for the sale of goods and those for the provision of services were two different types of contract. Based on this understanding, CISG explicitly provides that the Convention will apply to contracts where the preponderant part of the contractual obligation is on the sale of goods, not services. However, as more sales transactions have come to include more elements of services, mainly due to the advancement of the IoT industry, the distinction between goods and services became more blurred. Based on the observation of recent changes, some scholars even argue that such a change supports the applicability and suitability of CISG to even pure service contracts. The purpose of this paper is to critically analyze and evaluate their argument. Design/methodology - This paper focuses on two separate but related issues: CISG's 'applicability' and 'suitability' to service contracts. For the first issue, this paper will examine the rules of interpretation of international treaties under the Vienna Convention on the Law of Treaties of 1969, and will apply its rules to find the proper answer. For the second issue, this paper will perform logical and empirical analyses on the reasoning employed by scholars claiming the suitability of CISG to service contracts. Findings - This paper concludes that CISG does not, and should not, apply to pure service contracts. The argument that CISG applies to pure service contracts directly contravenes Article 3(2) of the Convention, which expressly states that it does not apply to a contract wherein the preponderant part of its obligation is about services rather than sales. Similarly, CISG is not a suitable governing law for pure service contracts because it aims provide rules specifically tailored to the needs of transactions of sales of goods, not services. Servitization of sales of goods transaction does not change this conclusion. Originality/value - This paper presents different views from those offered by some eminent scholars on the issue of applicability and suitability of CISG to service contracts. By doing so, it is hoped that the confusion caused in discussions so far are clarified. Hopefully, this paper can also provide practical guidance to practitioners engaged in the fields of international sales, services, and IoT industries.

• Journal of Legislation Research
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• no.44
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• pp.487-538
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• 2013

It is the most critical issue in recent international intellectual property licence disputes to decide the applicable laws to the license contracts. As Korea and the European Union(EU) reached free trade agreement(FTA), and the EU-Korea FTA entered into force on July 1, 2011, the FTA has boosted social, economic, cultural exchanges between the two. As a result of the increased transactions in those sectors, legal disputes are also expected to grow. This situation calls for extensive research and understanding of the choice of law principles applicable to international intellectual property license contracts in the EU. To decide the laws applicable to issues arising from international intellectual property license contracts disputes, the characterization of those issues is necessary for the purpose of applying private international law principles to them. In terms of characterization, intellectual property license contracts fall within contractual matters. In the EU, the primary rule of choice of law principles in contractual obligations is the Rome I Regulation. Because the choice of law rules, such as private international law principles, the Rome Convention(1980), and the Rome I Regulation, differ in the time of application, it is essential to clarify the time factor of related contracts. For example, the Rome I Regulation applies to contracts which were concluded as from December 17, 2009. Although party autonomy in international contracts disputes is generally allowed, if there is no choice of law agreement between the parties to the contracts, the objective test rule of private international law doctrine could be the best option. Following this doctrine, the Rome I Regulation Article 4, Paragraph 1 provides the governing law rules based on the types of contracts, but there is no room for intellectual property license contracts. After all, as the rule for governing law of those contracts, the Rome I Regulation Article 4, Paragraph 2 should be applied and if there are countries which are more closely connected to the contracts under the Rome I Regulation Article 4, Paragraph 3, the laws of those countries become the governing laws of the contracts. Nevertheless, if it is not possible to decide the applicable laws to the license contracts, the Rome I Regulation Article 4, Paragraph 4 should be applied in the last resort and the laws of the countries which are the most closely connected to the contracts govern the license contracts. Therefore, this research on the laws applicable to intellectual property license contracts under the Rome I Regulation suggests more systematic and effective solutions for future disputes in which Korea and the EU countries play the significant role as the connecting factors in the conflict of laws rules. Moreover, it helps to establish comprehensive and theoretical understanding of applying the Korean Private International Law to multifarious choice-of-law cases.