• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.21
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• pp.129-151
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• 2003

Nowadays even if environment of international commercial transaction is changing quickly municipal law could not meet with such change accordingly. So far, however, efforts towards unification have prevailingly taken the form of binding instruments, such as non-national or supranational legislation, international conventions or international model laws. Among them, the UNIDROIT Principles with parties' autonomous and yet non-binding character do not only meet the substantive requirements of a true law merchant. In addition they also counter some of the main points of criticism against the modern lex mercatoria. As such the Principles constitute a cornerstone in the lex mercatoria debate and may become the heart of the new lex mercatoria. The purpose of this article is to ask whether there could be applied the Principles in international commerce. For the purpose it is to investigate when the Principles are applied in international commerce and how effectively the Principles are applied for the decision in international commercial disputes. Even though the Principles are used for reference by parties involved for the voluntary regulation of their contract, it is sufficiently expected that the Principles are to be a stepstone of uniform contract law in international commerce. Until now cases of appling the Principles are not satisfied with its expectation as a source of non-legislative means of unification or harmonization of law. Given the party's autonomy in the contract, this is among other things because business parties are strongly tend to observe their national laws in their international commerce. And also, even though there are a number of neutral and uniform regulations for international commercial contracts, parties do not often recognize their usefulness with being up to expectation. In order to explore the applicability of the Principles a number of cases of ICC International Court of Arbitration and others are quoted.

• Journal of Arbitration Studies
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• v.31 no.3
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• pp.3-23
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• 2021

England is a significant base for international trade in Europe, and dispute resolution through arbitration is active. Therefore, due to the geographical relationship with the European continent, the settlement of trade transactions and disputes with European countries is one of the most essential tasks. In this regard, arbitration procedures in England have been actively used for a long time. In England, dispute resolution methods through arbitration have been developed centered on merchant groups such as guilds from the 16th century and have been actively used until today. However, the arbitration procedure also had the characteristics of the common law because there was no legislation related to arbitration. Therefore, arbitration based on common law was carried out until the first half of the 19th century. In the 'Arbitration Act 1889', two types of arbitration systems, 'common law arbitration' and 'statutory arbitration' coexisted. However, in the arbitration procedure, according to the newly enacted 'Arbitration Act 1889', the arbitration agreement was binding from the time the arbitration agreement was reached. There was a way to select an arbitrator even if it was not explicitly stipulated in the arbitration agreement, and the arbitration award was quickly enforced. Arbitration under contract was preferred over common law arbitration, where withdrawal and revocation of awards were possible. However, in response to these provisions, the England courts considered the arbitration system to deprive the courts of jurisdiction, while a strengthened judicial review of arbitration procedures was done. In particular, England unified the arbitration-related laws, which had been scattered for a long time, adopted the model law, and enacted the 'Arbitration Act 1996'. Under the recognition and enforcement of arbitral awards in 'Arbitration Act 1996', Section 66 deals with the recognition and enforcement of arbitral awards and foreign arbitral awards. Section 2 of the 'Arbitration Act 1950' is inherited and used as it is. Second, it deals with the execution of arbitral awards under the New York Convention: Article 100 (New York Convention), Section 101 (Approval and Enforcement of Awards), Section 102 (Evidence Presented by a Party Seeking Recognition and Enforcement), and Section 103 (Provides Matters Concerning Rejection Recognition and Enforcement).

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.59
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• pp.59-78
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• 2013

The interpretation and application of investment treaties takes place mostly by ad hoc tribunals. Their composition varies from case to case. But in interpreting and applying investment treaties are bound to exist on a ground rule and coherent criteria. Given summarizing contents of this study, those are as follows. When interpreting investment treaties, (i) most tribunals is based on Article 31 and 32 of the VCLT, (ii) tribunals rely on previous decisions, (iii) tribunals resort to travaux pr$\acute{e}$paratoires, (iv) tribunals consider the interpretative statement. When applying investment treaties, (i) treaties apply only in relation to acts or events that occurred after their entry into force, (ii) tribunals have applied different inter-temporal rules to jurisdictional clauses and substantive provisions in treaties, (iii) the relevant date for purposes of jurisdiction is the date of the institution of proceedings, (iv) Under the ICSID convention, the host state and investor's nationality must be a party to the convention on the date the proceedings are instituted. This study is expected to possibly become guideline in the interpretation and application standards of investment treaties. So future disputes can be prevented and prepared in advance.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.43-68
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• 2000

Incoterms mean the ICC official rules for the interpretation of trade terms which facilitate the conduct of international trade. Thus, the uncertainties of different interpretations of such terms in different countries can be avoided or at least reduced to a considerable degree. Nevertheless, Incoterms has been revised successively to adapt them to contemporary commercial practice. In particularly, substantive changes in Incoterms 2000 have been made in two areas: (i) the customs clearance under FAS and DEQ; and (ii) the loading and unloading obligations under FCA. But it should be stressed that the scope of Incoterms is limited to the contract of sale and not apply to the contracts of carriage, insurance and financing. Moreover, merchants wishing to use Incoterms 2000 should clearly specify that their contract is governed by 'Incoterms 2000'. It is particularly important to note that Incoterms are not dealt with a great number of problems, such as transfer of property rights, breaches of contract and exemptions from liability. Therefore, the contracting parties should clearly agree to the applicable law related their contract of sale, like the 1980 United Nations Convention on Contracts for the International Sale of Goods.

• Journal of Digital Convergence
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• v.10 no.4
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• pp.167-172
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• 2012

There is no substantive enactment in our country to regulate testifier's false statement in the process of investigation under current law. In consideration of such investigation reality, there exist predominant view that the regulations against testifier's untrue statement are necessary to fine actual truth on criminal justice. However, such view is not quite agreeable, for it holds a probability that excessive investigation rights might cause infringement on personal rights. It's because of human rights protection that the criminal justice puts before the finding of actual truth as its biggest principle, and as we see above, any testifiers' untrue statement are already punishable, although restrictive, through interpretation of deceptive scheme under current law such as obstruction of justice, crimes of sheltering or flying a criminal or calumny.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.67
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• pp.23-47
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• 2015

European Commission drafted and proposed the Common European Sales Law(CESL) to the European Parliament for the realization of a uniform set of international private law rules within the EU internal market. Since its purpose is for free international commercial activities for the sale of goods, for the supply of digital content and for related services, it was proposed to enable EU Member States to adopt or supplement as their substantive law according to their options. This study is relate to the legal bases on termination of a contract under CESL, they are composed of three parts: damages and interest, restitution and prescription. Damages and interest are divided into damages, general provisions on interest on late payments, and late payment by traders. Damages are explained by dividing into right to damages, general measure of damages, foreseeability of loss, loss attributable to creditor, reduction of loss, substitute transaction, and current price. Restitution is described by dividing into restitution on revocation, payment for monetary value, payment for use and interest on money received, compensation for expenditure and equitable modification. Prescription is explained by dividing into general provisions, periods of prescription and their commencement and extension of periods of prescription. General provisions explain right subject to prescription into a right to enforce performance of an obligation and any right ancillary to such a right. Regarding period of prescription, the short one is two years and the long one is ten years. However, in the case of a right to damages for personal injuries, period of prescription for such right is thirty years. Regarding commencement, the short one begins to run from the time when the creditor has become, or could be expected to have become, aware of the facts as a result of which the right can be exercised, while the long one begins to run from the time when the debtor has to perform. However, in the case of a right to damages, the CESL clarifies that it begins to run from the time of the act which gives rise the right.

• The Korean Society of Law and Medicine
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• v.21 no.1
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• pp.187-220
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• 2020

Today, administrative legislation is becoming more and more important in that it not only sets the legal life relationship of the people in great detail and detail, but is closely related to the occurrence, extinction, and alteration of rights and obligations held by prisoners. In the United States, the types of administrative legislation are divided into substantive and interpretative regulations, so-called substantive regulations, which give prior notice and opportunity to comment on interested parties through formal or informal administrative procedures in accordance with Article 553 of the Federal Administrative Procedures Act. On the other hand, the interpretation regulation, which is "the regulation established by the Administration for the simple interpretation of statutes," does not require prior notice or comment because it does not affect the people's rights obligations. The Azar v. Allina Health Service, 587 U.S. 1804, 2019 ruling by the U.S. Constitutional Court, subject to this research paper, is about a dispute over a new decision to require Medicare to determine the amount of compensation for care providers that provide medical services for the poor, and should the regulations be regarded as substantive under the Administrative Procedures Act and should not be given a hearing or a simple internal process for processing. Given that the current administrative procedure law of our country stipulates the procedures for administrative pre-announcement through Articles 42.1 and 44.1, but that our courts have not judged violations of legislative pre-announcement procedures under the Administrative Procedures Act so far as to judge the illegality of administrative legislation, the dispute of the U.S. Constitutional Court will provide new implications for controlling legal orders beyond simple legal interpretation and has great significance in terms of readjustment of relevant regulations under future administrative procedures.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.117-136
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• 2007

Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the international private law and the international commercial arbitration. The purpose of this article is to make research on the party's autonomy principle for the international commercial arbitral awards. For this purpose ist to analyse regal issue the applicability of the lex mercatoria and the possibility of $d\acute{e}pe\c{c}age$ relating to the party autonomy. In this Article ist dealt with Art. 29 para. 1 of the Korean Arbitration Act in comparison with Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure. The Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure provides equally. "The arbitral tribunal shall decide the dispute in accordence with such 'rules of law' as chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules." The term 'rule of law' used to describe the applicability of the lex mercatoria and the possibility $d\acute{e}pe\c{c}age$. Unlike Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para.1 of the German Code of Civil Procedure. Act, Art. 29(1) of the Korean Arbitration Act provides that the arbitral tribunal shall decide the dispute in accordence with the 'law' chosen by the parties as applicable to the substance of the dispute. However the majority view in Korea takes the position that the term 'law' should be interpreted broadly so as to encompass 'rules of law' at UNCITRAL Model Law and the German Code of Civil Procedure.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.79-102
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• 2008

When several parties are involved in a dispute, it is usually considered desirable that the issues should be dealt with in the same proceedings, rather than in a series of separate proceedings. This saves time and money. It avoids the possibility of conflicting decisions on the same issues of law and fact, since all issues are determined by the same tribunal at the same time. Where there is a multi-party arbitration, it may be because there are several parties to one contract, or it may be because there are several contracts with different parties that have a bearing on the matters in dispute. In international trade and commerce, for individuals, corporations or state agencies to join together in a joint venture or consortium or in some other legal relationship of this kind, in order to enter into a contract with another party or parties, where such a contract contains an arbitration clause and a dispute arises, the members of the consortium or joint venture may decided that they would each like to appoint an arbitrator. A different problem arises where there are several contracts with different parties, each of which has a bearing on the issues in dispute. A major international construction project is likely to involve not only the employer and the main contractor, but also a host of special suppliers and sub-contractors. Each of them will be operating under different contracts often with different choice of law and arbitration clauses. The appointment of the arbitrator or the composition of the arbitral tribunal should be in accordance with the agreement of the parties. The parties have to be equally treated in the constituting of the arbitral tribunal and the arbitral proceedings. However, the right of the parties to nominate a member of the arbitral tribunal could be taken away from them, if they are subject to the restrictions by means of the law of the country where the arbitration is taking place. That is, multiple parties jointly should nominate one arbitrator, where there they have to exercise their substantive right in common, or one of them exert his substantive right, then it has an effect on another parties, or they, whether as claimant or as respondent, get the same or similar treatment in the arbitral procedure. Therefore it is necessary to intend to settle multi-party disputes quickly and efficiently.

• Journal of Arbitration Studies
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• v.29 no.4
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• pp.187-210
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• 2019

This article examines the necessity for the introduction of an ICSID Appellate System. In comparison with the WTO appellate system, the ICSID ad hoc Committee has a very limited mandate. An annulment inquiry under the ICSID arbitration system barely focuses on whether the arbitral decision resulted from a justifiable process. As long as there is procedural legitimacy, the resulting awards remain unaffected under the annulment procedure, irrespective of mistakes of fact or law. In contrast, in the WTO DSS the AB substantively reviews panel rulings and suggestions that are founded on any deficiency of objectivity or error in the interpretation of a particular WTO provision. This defect intrinsic in the annulment procedure could cause injustice to a party earnestly interested in correcting recognized misapplication of law by ICSID tribunals. Accordingly, the establishment of an appellate system would result in a more substantive and procedural review of awards. The creation of such an ICSID appellate system would ensure thorough scrutiny of the decisions of the tribunal of first instance, leading to better reasoned outcomes. This could lead to a crystallization of predictability in investment relations. The end result would be that fairness, clarity, reliability, and legality in the ICSID adjudicative process would be unassailable, to the advantage of all the contracting parties.