“請約을 변경하는 承諾”(acceptance with modifications)의 效果와 問題點-CISG 제19조를 중심으로-

오원석(Oh Won Suk) 한국무역상무학회 2004 貿易商務硏究 Vol.23 No.-

The purpose of this paper is to examine the effects and problems of acceptance with modifications according to CISG Art. 19, comparing with UCC §2-207. First of all this author raised two legal issues encountered when there is an acceptance with modifications. Scenario one is as follows : “Before either party has taken further action, there is a rise or a fall in the price of goods, was there a binding contract?” The UCC rules provide for a contract if a purchaser sends out a purchase order and the seller sends back a sales acknowledgement form, and the items on the front(the price, description, and quantity) match up. The CISG on the other hand, is that most of the terms and conditions on the backs of the forms are important. Therefore, if they are different, there should not be a contract. Scenario two is as follows : “There has been performance, A disputes arises. What terms and conditions apply ?” The CISG and the UCC will probably lead to different results in the event the parties exchange conflicting forms and subsequently perform. Assuming that the offeree's reply contains terms that are materially different from the offer, the UCC provides that the resulting contract will include only those terms on which the writings of the parties agree, excluding conflicting terms. The CISG treats the material additions as a counter-offer and, in accordance with Art. 18, the offeree's performance may be regarded as an acceptance of a contract containing all of the offeror's terms ; or the offeror's performance may be regarded as an acceptance of a contract containing all of the offeree's terms. Second, this author raised three problems in the Art. 19 as follows ; 1) It is very difficult in practical application to decide what is material alterations even if the CISG lists material terms as an example. 2) There is a possibility for the offeror to speculate in the circumstance of market fluctuation as he has a change to object to the discrepancy in the offeree's reply. 3) There is also a possibility of inducement for the offeror or the offeree to send its own reply as a last shot.

한.중 국제중재제도의 비교와 시사점

오원석(Oh, Won suk),이경화(Li, Jing hua) 한국무역상무학회 2010 貿易商務硏究 Vol.46 No.-

The rapid growth of Korea-China trade that was since the establishment of diplomatic relations in 1992, led China to surpass the United States and Japan to become Korea's largest trading partner in 2009. "The largest trade" also means "the most disputes", so it is essential to study on dispute settlement and enforcement system of the two. Therefore, in order to make the traders correctly understand and use the arbitration as a dispute settlement method in both China and Korea, this article makes a comparative study on arbitration system between the two countries. And finally, it analyzes the enforcement situation of arbitral award in China, then provides the author's personal recommendations as a countermeasure against the poor enforcement system in China.

청구보증상 지급메커니즘에 따른 실무상 유의점

오원석(Oh, Won Suk),김필준(Kim, Pil Joon),이운창(Lee, Woon Chang) 한국무역상무학회 2010 貿易商務硏究 Vol.46 No.-

Independent guarantee is a creation of the need from the both sides, i.e. the applicant (principal debtor) and the beneficiary (creditor). The former used to have to deposit cash in favor of the beneficiary in case of his default, which laid a burden on his liquidity while the latter still wanted to have the equivalent to cash. Independent guarantee satisfied the both parties by freeing the applicant of a deposit and maintaining the beneficiary's right at the same time. The fact that independent guarantee has three payment mechanisms is not widely known to the public. They are (ⅰ) payment on first demand, (ⅱ) payment upon submission of third-party documents, (ⅲ) payment upon submission of an arbitral or court decision. From the applicant's point of view, the order in his favor is (ⅲ), followed by (ⅱ) and (ⅰ). As there shouldn't be a case where one party is at a disadvantage against the other, useful insight is being sought for the benefit of the applicant. First, the applicant can offer his intention to provide a payment mechanism (ⅱ) or (ⅲ) rather than (ⅰ) if he must deliver it. Second, if the beneficiary still wants to have (ⅰ) and the applicant is in a position not to reject it, the latter should thoroughly check any provisions that may work against him later. Third, the applicant could use counterbalancing provisions in underlying contract to cope with protective clauses in the guarantees. Forth, the applicant should review the beneficiary's sincerity to prevent unfair calling risks. The applicant may use an ECA(Export Credit Agency) in his country to which he can transfer not only unfair calling risks, but also political risks. On the other hand, a bank needs to keep the following advice in mind. The foremost important thing for the bank not to forget is that it provides a guarantee as a service provider, not as a responsible party for the feasibility of the project, etc. Credit risk of the applicant should require the greatest attention when issuing a guarantee: the bank should look into the possibility that it can procure immediate reimbursement from its customers after payment to the beneficiary. Second, the applicant's ability to complete the project should be reviewed by checking its track records, techniques and reputation, etc. Third, the bank may also use an ECA to cover the beneficiary's unfair calling risks as well as political risks. In the case of Korea, as Korea Export Insurance Corporation(KEIC) can cover all the risks mentioned above, the bank could use its service called 'Export Bond Insurance.' What's better for the bank is that ECA cover can enhance the bank's asset quality by putting it zero on its risk weighted asset.

중국의 “중재와 조정의 결합” 제도와 시사점

오원석(Won-Suk Oh),이경화(Jing-Hua Li) 한국무역학회 2013 貿易學會誌 Vol.38 No.4

貨煥信用狀에서 詐欺除外法則(Fraud Exception Rule)이 개설신청인이나 제3당사자의 사기에도 적용되는가?

오원석(Won-Suk Oh) 한국무역학회 2004 貿易學會誌 Vol.29 No.2

免責法理에 관한 比較法的 硏究

吳元奭(Won-suk Oh),裵俊逸(Jun-il Bae) 한국무역학회 2001 貿易學會誌 Vol.26 No.3

국제리스계약상 당사자의 의무에 관한 소고

오원석(Oh, Won Suk),최영주(Choi, Young Joo) 한국무역상무학회 2014 貿易商務硏究 Vol.63 No.-

This paper analyzed the obligations of the parties entering into an international leasing agreements, focusing on the Draft Common Frame of Reference (DCFR) Book IV, Part B. The lessor's obligations are as follows. i) The lessor must deliver goods to the lessee by the due date of delivery so that the lessee can use the goods on the starting date of the lease agreement. ii) The lessor must conform with the contract so that the goods meet the purpose of the contract at the start of the lease agreement and throughout the period of the lease agreement. iii) If the lessee returns the goods upon the termination of the lease agreement, the lessor must cooperate with the lessee. The lessee's obligations are as follows. i) The lessee must pay rent, which is the most critical obligation of the lessee. ii) The lessee must cooperate with the lessor so that the lessor can perform the obligation to deliver the goods and accept the goods of which the lessee shall take control. iii) The lessee shall perform fiduciary duties while it uses and makes profits from the goods, and when the lessor cannot take any measure to protect the object, the lessee must prevent damage. Further, if the lessor pays expenses that are not considered necessary expenses, the lessor may not be reimbursed and must accept the goods after delivery to preserve them. iv) The lessee must give notice to the lessor if there is a possibility that a third party can claim rights to goods or infringe upon the lessor's ownership while using the goods. v) At the end of the lease period, the lessee must return the goods to the lessor.

ICSID 중재판정의 승인과 집행에 관한 제 고찰

오원석(Oh, Won Suk),김용일(Kim, Yong Il),이기옥(Lee, Ki Ok) 한국무역상무학회 2014 貿易商務硏究 Vol.62 No.-

This article examines the regime for the recognition, enforcement and execution of arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes(ICSID). The effectiveness of international arbitration depends on the degree of finality of the award and the ease with which the award may be enforced by the prevailing part. The ICSID Convention provides for rigorous finality and seeks to establish optimal preconditions for the enforcement of awards in manner that distinguishes ICSID from other international arbitral regimes. As with other classes of disputes subject to judical or arbitral jurisdiction, most ICSID cases settle. In the cases that do proceed to award, participants must understand what will happen if the losing party fails to comply with the award voluntarily and the prevailing party takes the award through phases known as "recognition", "enforcement" and "execution". Investors should assess possible execution before finalizing investments and certainly before they initiate collection proceedings on ICSID awards. An investor with a monetary award in hand should attempt to locate assets of the losing State and then obtain comparative law advice to identify jurisdictions that allow attachment of at least certain categories of sovereign assets.

國際投資紛爭解決을 위한 ICSID仲裁에 관한 고찰

오원석(Won-Suk Oh) 한국무역학회 2006 貿易學會誌 Vol.31 No.4

턴키계약체결시 국제적 강행규정에 의한 준거법 제한에 관한 사례연구

오원석(Oh, Won Suk),김용일(Kim, Yong Il) 한국무역상무학회 2012 貿易商務硏究 Vol.54 No.-

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises “in connection with”a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.