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      • KCI등재

        국제물품매매계약에서 매도인의 계약위반에 대한 매수인의 손해배상청구권 행사의 문제점

        오원석(Oh, Won Suk),윤영미(Youn, Young Mi),임성철(Lim, Sung Chul) 한국무역상무학회 2013 貿易商務硏究 Vol.58 No.-

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 7시까지 원문보기가 가능합니다.

        The purpose of this paper is to examine the problems in exercising buyer’s right to claim damages for the breach of contract by the seller in international sales contract and to suggest reasonable counter-measures. The main contents are as follows: First, this author analyzed the principles of the seller’s liability for damages in detail and examined the methods for the calculation of damages on the basis of Arts.74~77. As these articles are found to be insufficient in practical application, this author further examined the UNIDROIT Principles(2004) to confirm whether these Principles can fill the gaps of CISG or not, which turned out their gap-filling functions. Second, this author tried to find any expected problems when the buyer resorts to the right to claim damages in case of the seller’s breach of contract including the estimation of damages, the burden of proof, causation, the proof of appropriateness for avoidance, the proof of buyer’s obligation to mitigate the loss and so on. The reason is that these problems may cause a lot of difficulties in real business. As result, many buyers have given up their reasonable rights to claim damages so far. Finally, from the buyer’s perspective, this author would like to suggest a liquidated damage clause(LD Clause) which gives the buyer to received a specified sum in case of seller’s non-performance and/or a demand guarantee(or standby L/C) which guarantees buyer to secure unconditional payment independent of the underlying contract. For these purposes, the buyer should try to insert the LD Clause and/or Guarantee Clause in the contract when the buyer and the seller negotiate the sales contract. Also there are a lot of considerations and limitations in using the LD Clause and the Guarantee Clause in their real business, mainly dependent up bargain power between the seller and the buyer, for which this author promise to examine in detail in the future.

      • KCI등재

        턴키방식 플랜트계약의 실무상 유의점에 관한 연구

        오원석(Oh, Won Suk),이기옥(Lee, Ki Ok) 한국무역상무학회 2012 貿易商務硏究 Vol.53 No.-

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 7시까지 원문보기가 가능합니다.

        This article examines the Practical Suggestions in the Contract for the Turnkey Supply of an Industrial Plant based on a study focused on the commentary of “ICC Model Contract”clause which is encouraged by ICC. Especially practical issues are inquired into on business and legal perspective as follows. First, in regard to supply of technical documentation, equipment and spare parts, it is important to supplier and purchaser to agree on obtaining technical documents necessary for installing and operating plant, and also components necessary for it’s maintenance. Second, it is about erection, testing, taking over and training chapter. Both parties need to agree about the process of the arrival of equipments and assembly conducted by the supplier and following examination and also training purchaser to operate it Third, when it comes to price, payment conditions, bank guarantees, parties are to make decision on the pricing, payment conditions and currency of contract-payment. Lastly, it is necessary to reach an agreement of the issue of whether it is to be defined as delay or non-performance of the contract and also it’s consequences about rights and obligation.

      • KCI등재

        국제물품매매계약에서 매도인의 물품인도의무 위반에 대비한 손해배상액의 예정조항(Liquidated Damage Clause; LD조항)의 활용에 관한 연구 : ICC Model International Sale Contract를 중심으로

        오원석(Oh, Won Suk),윤영미(Youn, Young MI),이경화 韓國貿易商務學會 2011 貿易商務硏究 Vol.50 No.-

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 7시까지 원문보기가 가능합니다.

        The purpose of this paper is to examine the use of LD Clause against the seller's breach of contract in connection with delivering the goods in the international sales contract, and international guarantee system using standby L/C or demand guarantee. For this purpose, the author, first, considered the outline of the buyer's remedies in cases that the seller had not performed his obligations in contract and the difficulties in the buyer's remedies. As alternatives for overcoming the difficulties, this author recommended the LD Clauses (Liquidated Damage Clauses) based on ICC Model International Sales Contract, and explained each Model Clause. To enhance the feasibility of LD Clause, this author suggested the guarantee system, like the standby L/C or demand guarantee. But these guarantee systems have several limitations in practical use. Thus, these guarantee systems would greatly contribute to Korean exportation in the future. The reason is that the Korean export structure would be more complex and the period of sales contract would be longer and longer, which result to in long-terms supply contracts. These changes would require the guarantee much urgently.

      • KCI우수등재

        중재합의의 실질적 유효성의 법률적용문제

        오원석(Won-Suk Oh),이홍숙(Hong-Shu Li) 한국무역학회 2014 貿易學會誌 Vol.39 No.3

        중재합의의 실질적 유효성은 중재합의의 유효요건 중의 하나로서 중재합의의 승인단계, 중재판정의 취소단계, 중재판정의 승인 및 집행단계에서 당사자 간에 다투어질 수 있다. 이러한 경우에는 중재합의의 실질적 유효성은 법원의 심사대상이 되어 법원이 그에 적용할 준거법에 따라 유효성여부를 판단한다. 이에 본 논문은 먼저 중재합의의 실질적 유효성의 준거법을 중재합의가 뉴욕협약의 적용을 받는 경우와 뉴욕협약의 적용을 받지 않는 경우로 나누어 살펴본 뒤 중국국제상사중재에서의 중재합의의 실질적 유효성의 법률적용과 관련하여 중국법원의 판례를 중심으로 살펴보고 문제점을 지적함으로써 무역계약 체결 시 중재조항의 내용을 약정함에 있어 한·중무역당사자에 대한 시사점을 제시하였다. Arbitration is a method of alternative dispute resolution in international trade. In order to use arbitration, an effective arbitration agreement must exist and substantial validity of the arbitration agreement is necessary. The parties, however, may debate the substantial validity of the arbitration agreement at the stage of ‘enforcement of the arbitration agreement’ or the ‘annulment of arbitral award’ or the ‘enforcement of arbitral award’. In such cases, court shall decide whether the agreement is substantially valid by applying the applicable law. If the arbitration agreement is judged invalid by the court, the parties cannot use arbitration. Therefore, this paper first deals with the law applicable to the substantial validity of arbitration agreements and will classify the cases into two categories: one where the New York Convention is applicable to the arbitration agreement, and the other where it is not. The paper will then analyze China’s court cases relating to the law applicable to the substantial validity of arbitration agreements in international commercial arbitration and identify the problems that exist in those cases to provide the parties involved in Korean-Chinese trade with suggestion for drafting valid arbitration clauses.

      • KCI등재

        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.-

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 7시까지 원문보기가 가능합니다.

        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.

      • KCI등재

        ICC중재에서 중재비용의 결정과 할당에 관한 연구

        오원석(Oh Won Suk) 한국무역상무학회 2007 貿易商務硏究 Vol.33 No.-

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 7시까지 원문보기가 가능합니다.

          The Arbitration costs provided in Article 31 consist of arbitrators" fees, arbitrators" expenses, ICC administrative expenses, expenses of experts appointed by the Arbitral Tribunal, and parties" costs. Among them the first three items are independently determined by the Court in accordance with the Scale, while another two items are determined by the arbitrator and each party. The three items determined by the Court are communicated by Secretariat to the Arbitral Tribunal for inclusion in the award following the approval of the draft submitted to the Court.<BR>  Also the final award may decide which of the parties shall bear them or in what proportion they shall be borne by the parties. According to Article 31(3), the arbitrators have complete jurisdiction or discretion to allocate the costs. Three common approaches are as follows;<BR>  First, all of the costs are borne by the losing party. Second, all of the costs are allocated in proportion to the outcome of the case.<BR>  Third, all of the costs determined by the Courts are shared equally by the parties and both parties bear their own costs.<BR>  But, both parties may include intentions in accordance with the principle of party autonomy. For example, if the parties wish to ensure that the arbitration costs be shared equally and that the arbitrator make no allocation of costs or fees, the following sentence could be added to the arbitration clause in their contract.<BR>  "All costs and expenses of the arbitrators [and the arbitral institution] shall be borne by the parties equally; each party shall bear the costs and expenses, including attorneys" fees, of its own counsel, experts, witness and preparation and presentation of its case"<BR>  And also, if the parties wish expressly to link any allocation of costs, and fees to the result of the award the following could be added to the arbitration clauses.<BR>  "The arbitrators may award to the prevailing party, if any, as determined by the arbitrators, its costs and expenses, including attorneys" fees"

      • KCI등재

        청정개발체제(CDM) 리스크에 따른 탄소배출권 구매계약(ERPA)의 법적 쟁점에 관한 연구

        오원석(Won-Suk Oh),안건형(Keon-Hyung Ahn) 한국무역학회 2009 貿易學會誌 Vol.34 No.4

        In an international attempt to solve the problem of global warming, the United Nations Framework Convention on Climate Change (UNFCCC) was adopted at Rio de Janeiro, Brazil, in 1992. To further execute the UNFCCC, the Kyoto Protocol was adopted on 10 December 1997. The goal of the Protocol was to set carbon emissions targets for industrialized nations. According to the Protocol, Annex Ⅰ parties were given the opportunity to reach their targets by the adoption of command-and-control regulations or by using the "flexibility mechanisms" - i.e. "ET (Emission Trading), CDM (Clean Development Mechanism), JI (Joint Implementation) - in order to comply with their assigned emission levels. This paper identifies some of the risks intrinsic to CDM projects, among others, as well as legal issues which can be arisen out of Emission Reduction Purchase Agreement (ERPA), focused especially on the World Bank ERPA. This article also examines how dispute resolution clauses are provided in accordance with the standard model forms of ERP A of the World Bank and IETA (International Emissions Trading Association) and finally suggests useful tools to mitigate these risks and to avoid unnecessary disputes when negotiating ERPA.

      • KCI등재

        ICC 중재에서 중재법원의 제3중재인 선정에 관한 연구

        오원석(Won-Suk Oh),안건형(Keon-Hyung Ahn) 한국무역학회 2008 貿易學會誌 Vol.33 No.1

        One of the most important functions of the ICC Court of Arbitration is the choice of arbitrators. In particular, where the parties fail to agree to jointly nominate a sole arbitrator or the chairman of the Arbitral tribunal, the Court shall make the appointment upon the proposal of a National Committee. When the Court is to select an appropriate National Committee, the Court considers the prospective arbitrator's nationality, residence and other relationships with the countries of which the parties or other arbitrators are nationals in accordance with the ICC Rules of Arbitration. The purpose of this paper is to identify the factors which the Court considers when it is to select a National Committee in practice. These factors include the nationalities of the parties and counsels, if any, as well as the party-appointed arbitrators, the language of arbitration, the place of arbitration (the prospective arbitrator's residence), the governing law etc. From a number of examples discussed in the chapter 4 of this paper, in particular, drawn from the experiences of arbitrators nominated by the ICC National Committees of Switzerland, Belgium and Austria, we can see the practical facts as follow: First, the sole arbitrator or the chairman of the Arbitral Tribunal tends to be of a nationality other than that of the parties and other players in the arbitral procedure such as counsel and any party-appointed arbitrators, unless the parties do not otherwise object. Second, the prospective third arbitrator's command of the language(s) of arbitration is a very important factor, especially when the case involves many parties and the parties fail to agree on the language of arbitration. Third, depending on the nature of the dispute and among other factors, the amount of the dispute, the Court tends to seek an arbitrator who resides near the place of arbitration. Lastly, the Court tends to seek an arbitrator who is familiar with the law applicable to the arbitration or, at a minimum, has expertise or experience in a com?parable legal system.

      • KCI등재

        중국의 "涉外民事關係法律適用法"상 무역계약의 준거법 선택 및 결정에 관한 연구

        오원석(Won-Suk Oh),이홍숙(Hong-Shu Li) 韓國貿易學會 2012 貿易學會誌 Vol.37 No.1

        무역계약에서 준거법의 결정은 매우 중요하다. 왜냐하면 그것이 어떻게 결정되느냐에 따라 무역계약과 관련된 분쟁의 해결결과가 달라질 수 있기 때문이다. 무역계약에서 준거법의 결정방법은 분쟁의 해결방법이 소송이냐 중재이냐에 따라 규칙의 면에서 다소 상이한 체계를 가지는데, 본 논문에서는 전자에 한해 논의를 전개한다. 소송으로 분쟁을 해결할 경우 무역계약의 준거법은 국제사법의 원칙에 따라 결정하게 된다. 중국은 "중국섭외민사관계법률적용법"이 제정되어 2011년 4월 1일부터 발효되면서 처음으로 단행법으로서의 국제사법을 가지게 되었다. 그러나 현재 무역계약의 준거법결정에 관해서는 주로 종전의 중국의 국제사법관련법과 관련하여 연구가 이루어지고 있다. 이에 본 논문은 새로이 발효된 "섭외민사관계법률적용법"과 종전의 중국의 국제사법관련법들을 검토하여 문헌연구의 방법으로 무역계약에서의 중국의 준거법결정제도에 대해 논의함으로써 이를 기초로 한·중무역당사자들에게 무역계약체결시의 준거법선택에 관한 실무상의 유용한 지침과 유의점을 제시하고자 한다. It is very important to determine the governing law in international trade contract. This is because, depending on how the law is determined, the resolution of disputes over international trade contract may be different. In the case of resolution of dispute by litigation, the governing law for international trade contract shall be determined by the principles of private international law. China enforces "the people's republic of china on the application of laws over foreign-related civil relationships" ("the Application of laws") with the effect of April 1, 2011. Thus, this paper examines "the Application of Laws" and the existing private international law-related laws of China, discusses China's governing law selection and determination system with regard to international trade contract, and accordingly provides Korea-China traders with working tips on the selection of governing law. Advices on the selection of governing law for international trade contract are outlined as follows. First, the governing law should be specified in writing, and also limitations by mandatory rules should be taken into consideration. Second, in the case of designating a governing law by "choice of proper law" and "incorporation of law by reference", the two should be distinguished and designated and, when stipulating them in the contract, the scope of application should be specifically defined. And, in the case of by "incorporation of law by reference", the rules version or convention version applicable to the contract should be distinctively specified. Third, the governing law should specify not principles of private international law of a particular nation but the substantial law. Fourth, In the case of a foreign law having been designated as the governing law, such foreign law should not violate the public policy of China, and should be related to the disputes over the contract. If the foreign law is irrelevant to the dispute, China's law will apply. Fifth, in the case of dividing and designating the governing, such division and designation should be logical and consistent, not conflicting with each other. Sixth, if the parties agree to designate China's law as the governing law or if, without the designation of governing law by the parties, China's law is designated as the governing law according to the principle of the closest relevancy, international convention, which is ether concluded or signed up for as a signatory by China, will apply. Also, it should be noted that if relevant provisions do not exist in China's law and international convention, international usage may apply. Seventh, in the case of the international trade contract being a contracts for the international sale of goods, to apply CISG to the contract as the governing law, CISG should be specified in the contract. And, if the parties specify China's law as the governing law in the contract, and if, without designation of the governing law by the parties, China's law is designated as the governing law according to the principle of the closest relevancy, it should be noted that CISG may apply to the contract.

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