• Journal of Arbitration Studies
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• v.19 no.2
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• pp.95-126
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• 2009

One of the controversial issues in investor-state investment arbitration is the interpretation of "umbrella clause" that is found in most BIT and FTAs. This treaty clause requires on Contracting State of treaty to observe all investment obligations entered into with foreign investors from the other Contracting State. This clause did not receive in-depth attention until SGS v. Pakistan and SGS v. Philippines cases produced starkly different conclusions on the relations about treaty-based jurisdiction and contract-based jurisdiction. More recent decisions by other arbitral tribunals continue to show different approaches in their interpretation of umbrella clauses. Following the SGS v. Philippines decision, some recent decisions understand that all contracts are covered by umbrella clause, for example, in Siemens A.G. v. Argentina, LG&E Energy Corp. v. Argentina, Sempra Energy Int'l v. Argentina and Enron Corp. V. Argentina. However, other recent decisions have found a different approach that only certain kinds of public contracts are covered by umbrella clauses, for example, in El Paso Energy Int'l Co. v. Argentina, Pan American Energy LLC v. Argentina and CMS Gas Transmission Co. v. Argentina. With relation to the exhaustion of domestic remedies, most of tribunals have the position that the contractual remedy should not affect the jurisdiction of BIT tribunal. Even some tribunals considered that there is no need to exhaust contract remedies before bringing BIT arbitration, provoking suspicion of the validity of sanctity of contract in front of treaty obligation. The decision of the Annulment Committee In CMS case in 2007 was an extraordinarily surprising one and poured oil on the debate. The Committee composed of the three respected international lawyers, Gilbert Guillaume and Nabil Elaraby, both from the ICJ, and professor James Crawford, the Rapportuer of the International Law Commission on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, observed that the arbitral tribunal made critical errors of law, however, noting that it has limited power to review and overturn the award. The position of the Committee was a direct attack on ICSID system showing as an internal recognition of ICSID itself that the current system of investor-state arbitration is problematic. States are coming to limit the scope of umbrella clauses. For example, the 2004 U.S. Model BIT detailed definition of the type of contracts for which breach of contract claims may be submitted to arbitration, to increase certainty and predictability. Latin American countries, in particular, Argentina, are feeling collectively victims of these pro-investor interpretations of the ICSID tribunals. In fact, BIT between developed and developing countries are negotiated to protect foreign investment from developing countries. This general characteristic of BIT reflects naturally on the provisions making them extremely protective for foreign investors. Naturally, developing countries seek to interpret restrictively BIT provisions, whereas developed countries try to interpret more expansively. As most of cases arising out of alleged violation of BIT are administered in the ICSID, a forum under the auspices of the World Bank, these Latin American countries have been raising the legitimacy deficit of the ICSID. The Argentine cases have been provoking many legal issues of international law, predicting crisis almost coming in actual investor-state arbitration system. Some Latin American countries, such as Bolivia, Venezuela, Ecuador, Argentina, already showed their dissatisfaction with the ICSID system considering withdrawing from it to minimize the eventual investor-state dispute. Thus the disagreement over umbrella clauses in their interpretation is becoming interpreted as an historical reflection on the continued tension between developing and developed countries on foreign investment. There is an academic and political discussion on the possible return of the Calvo Doctrine in Latin America. The paper will comment on these problems related to the interpretation of umbrella clause. The paper analyses ICSID cases involving principally Latin American countries to identify the critical legal issues arising between developing and developed countries. And the paper discusses alternatives in improving actual investor-State investment arbitration; inter alia, the introduction of an appellate system and treaty interpretation rules.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.93-114
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• 2003

The Federal Arbitration Act and the States Arbitration acts of the United States approve that the an arbitration clause should be construed broadly and the Courts interpreted it broadly without being curbed by the written meaning of clause itself. The Courts also divided the interpretation of arbitration clause from the interpretation of other clauses of contract to approve the validity of arbitration clause and further expanded the scope of arbitration. However, the Arbitration Act of Korea does not specify a general principle about how an arbitration clause should be interpreted. The Supreme Court did not have a case yet but the lower courts kept their posture that an arbitration clause should be clear by resulting narrow interpretation and should be written to the extent that it excludes the power of courts from jurisdiction. As a result, there would be cases that arbitration is not permitted although an arbitration clause exists. The parties intending arbitration are frustrated about how to draft an arbitration clause into their agreement. There were the cases that the parties which took the prevailing position attempted to delay dispute resolutions by dragging disputes into litigation even if they agreed to resolve through arbitration, on the basis that an arbitration clause was incomplete. Although the arbitration statutes of the United States cannot apply in Korea, the way of their approaches to the interpretation of arbitration clause can be taken into consideration in view of the globalization of arbitration.

• 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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.25
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• pp.165-187
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• 2005

Arbitration is a creature of contract. The parties agree that selective dispute resolution clause provides them with a choice to litigate or arbitrate certain disputes. Under the agreements, the parties had the option in the action. In the event any dispute arises between the parties concerning our representation or payment of our fees and disbursements which cannot be promptly resolved to our mutual satisfaction, you agree that dispute will be submitted to arbitration. Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. The selective arbitration agreement has become an accepted method of dispute resolution. However, the trend of dispute settlement has changed. The selective arbitrations clauses are to be construed as broadly as possible, and arbitration will be compelled unless it may be said with positive assurance that arbitration clause is not susceptible of an interpretation that covers the asserted dispute.

• 한국무역상무학회:학술대회논문집
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• 2004.12a
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• pp.149-170
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• 2004

Arbitration is a creature of contract. The parties agree that selective dispute resolution clause provides them with a choice to litigate or arbitrate certain disputes. Under the agreements, the parties had the option in the action. In the event any dispute arises between the parties concerning our representation or payment of our fees and disbursements which cannot be promptly resolved to our mutual satisfaction, you agree that dispute will be submitted to arbitration. Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. The selective arbitrations clauses are to be construed as broadly as possible, and arbitration will be compelled unless it may be said with positive assurance that arbitration clause is not susceptible of an interpretation that covers the asserted dispute.

• Asia-Pacific Journal of Business Venturing and Entrepreneurship
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• v.11 no.4
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• pp.205-213
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• 2016

This study clarified the definition and interpretation of terms relating to SMEs Priority System. First, 'Domestic' is defined that the address of office is in our country. Second, 'Technology utilization capacity' is defined that the de facto capacity to technology commercialization and utilization. for example. development or production or sales activity of the production using national r&d performance. Third, 'priority' in priority consideration is defined that when there are many companies trying sign technology utilization contract, technology providers shoud provide the opportunity of signing contract to SMEs primarily. 'priority consideration' is defined that technology providers shoud try to do enough to sign a contract with SMEs. This study has significance in that raising the application of the current SMEs Priority System.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.62
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• pp.135-178
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• 2014

The Uniform Commercial Code (UCC) sets the standards of good faith in a commercial transaction for the sale of goods. With every sales contract, there is an implied obligation for both the seller and the buyer to negotiate the contract and perform under the terms of the contract in good faith. The agreement between both parties and the customs in the industry determine how the good faith standard should be applied to a particular transaction. Generally, the meaning of good faith, though always based on honesty, may vary depending on the specific context in which it is used. A person is said to buy in good faith when he or she holds an honest belief in his or her right or title to the property and has no knowledge or reason to know of any defect in the title. In section 1-201 of the UCC good faith is defined generally as "honesty in fact in the conduct or transaction concerned." Article 2 of the UCC says "good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade." The sales contract will generally determine which party is required to perform first. This provision helps to determine if the buyer or the seller is in breach of the agreement due to failing to perform as stated by the contract. Either the seller must deliver the items before the buyer is required to accept and pay or the buyer must pay for the items before the seller has the duty to act in good faith and deliver the items in a reasonable manner. If the contract does not specifically define who is required to perform, industry customs and fair trade may determine what is acceptable for the transaction. Under the UCC, the buyer is required to pay for the goods when they are delivered, unless the contract states otherwise. Therefore, the UCC imposes an obligation of good faith on the performance of every contract or duty under its purview. The law also generally requires good faith of fiduciaries and agents acting on behalf of their principals. This article discusses problems of the principles of good faith under the UCC. 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 good faith issues for Korean law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.133-162
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• 1999

The international sale transaction is in essence a sale of goods and presents all those commercial and legal problems in any sale of goods. As a result, A International sales contract imposes several duties on the parties : the seller must deliver the goods and transfer ownership in them, while the buyer must pay the price and take delivery of the goods. However, there are several problems which impede a active transaction between seller and buyer who have their places of business in other countries each other. Therefore, It is necessary to provide the concept on the conformity of goods in the Int'l Sale of Goods. Especially, In our consideration for the point of time when defects occurs, the existence of non-conformity of goods should be judged on the basis of time of delivery rather than time of contract. Moreover, The burden of proof about nonconformity of goods is another fact which make an international dispute between the contractual parties in an international trade. Thus, The consistency in the interpretation of law must be maintained betweened the warranty and seller's liability. In the Uniform Commercial Code and UN Convention, non-conformity of contract is made of contract liability. And in our civil and commercial law provisions of warranty should be understand as the special ones of the provisions of general non-performance of obligation liability. As a result, More concrete study of them is required because they may have a great influence especially on international trade. As a result, We should be our best in finding a helpful and systematic structure that the dualistic structure of nonperformance of obligation liability and warranty liability must be unified by studying the theories of English and American warranty and our legal system, as well as international practice and usage being used in an international trade.

• Journal of Korea Trade
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• v.26 no.7
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• pp.93-108
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• 2022

Purpose - This paper examines the admissibility of restitution as the legal consequence where a contract is frustrated under the Law of Reform (Frustrated Contracts) Act 1943 in comparison with Korean Civil Code (KCC). In order to provide practical guidelines and advice regarding choice of and application of law for contracting parties in international trade, the paper comparatively evaluates requirements and the scope of restitution under the Act 1943 and KCC. Design/methodology - This paper executes a comparative study to analyze whether the parties may claim restitution of money paid or non-money benefit obtained before or after the time of discharge under English law and KCC. To achieve the purpose, it focuses on the identifying characteristics of each statute, thereby providing guidelines to overcome difficulties in legal application and interpretation as to restitution as the consequence of frustration. Findings - Under English law, the benefit may be restituted according to Art 1943 or the common law rule, mistake of fact or law. Under the KCC, restitution is considered based on the principle of the obligation to recover the original obtained regardless of the time when the benefit is conferred. Whilst Act 1943 does not require careful analysis of the grounds of restitution, requirements to justify restitution according to the principle of unjust enrichment, mistake of fact or law, and the KCC should be met. Meanwhile, the KCC may provide more opportunities to award restitution because it does not require the burden of proof related to the defendant's good faith, unlike the principle of unjust enrichment. Originality/value - Where the contract is frustrated by the effect of COVID-19, one legal issue is a consequence of frustration. Therefore, this paper analyzes requirements and the scope of restitution under English law as compared with the KCC in a timely manner. It provides contracting parties with practical guidelines and advice to reduce unpredictability when they choose the governing law in a contract.

• Journal of the Korea Society of Computer and Information
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• v.18 no.4
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• pp.161-169
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• 2013

Currently, there is no bill about Maternal Inference and the Family Law about surrogate birth in Korea. Also, Problems of surrogate mother were reported by media socially, but these discussions did not discuss continuously. Early in the course that establishing process of Bioethics and Safety Act, there was a discussion. But it cannot acceptance as Act, it issued legally and ethically. Despite the difficult of legal interpretation and ethical problem, the surrogate birth practiced covertly and frequently. And about this, our law just declared its invalidity because it is contrary to public order and good moral until recently. Therefore, if it leaves as invalidation, the problem about right of surrogate mother and the baby from her it may occur a serious social problem. From now, about the issue of surrogacy contracts the legal and medical countermeasures to be taken. Therefore, to solve many problems about surrogacy contract, consider the problem of surrogacy contract, also suggest legislative study about Korean surrogate mother based on legislative cases of foreign countries.