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        • KCI등재후보

          國際販賣店契約의 主要條項 (ICC Model Distributorship Contract(Pub.518)을 中心으로)

          오원석(Oh Won Suk) 한국무역상무학회 2005 貿易商務硏究 Vol.26 No.-

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

          International distributorship contract(IDC), as well as international agency contract is a type of contract which is most frequently used in international trade. But one of the main difficulties faced by parties of IDC is the lack of uniform rules for this type of contract. This means that both parties should be careful about each clause of the contract when they draw up it. The ICC prepared model form which incorporates the prevailing practice in international trade, and which aims at protecting and balancing the legitimate interests of both parties. This author examined the several important clauses in this model contract. The purpose of this examination is to help the contracting parties for better understanding and applying them in their actual contracting practice, which based on this model contract. When the supplier and the distributor execute their contract or use ICC Model Contract, they should be careful about the following points: First, some terminologies(like, "territory", "product", "competing products" and "exclusivity") should be clearly defined in their contract. Second, regarding the supplier's functions including "supplying products" and the distributor's responsibility including "undertaking not to compete", and "attaining guaranteed minimum targets", both parties should make clear about each party's right and obligation as well as one party's remedies available when other party makes breach of its obligation. Third, both parties should examine the relationship between the "exclusivity" or "sole" and competition law which is regarded as a mandatory rule in the territory. Forth, when both parties lay down "termination clause" in the contract, they should make clear about the indemnity in case of termination. Fifth, as there is not uniform law for the distributorship contract, it is inevitable to choose any local law as an applicable law in case of litigation. So both parties should keep in mind to insert arbitration clause to avoid the application of the local law. Besides, both parties should consider their individual and specific circumstances and try to reflect them in their contract by AnnexⅠ to ⅩⅠ attached to the end of model contract.

        • KCI우수등재

          免責法理에 관한 比較法的 硏究 : CISG를 中心으로

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

          Article 79 CISG sets out the condition under which a party is not liable for any his non-performance: the non-performance must be due to an 'impediment' which is uncontrollable, unforseeable and unavoidable. The intention to draft Article 79 is explicit. By adopting the word 'impediment', the CISG aimed at emphasizing the objective nature of the barriers to performance rather than their personal aspect. Nevertheless, the fact that it avoids reference to the existing concepts of exemptions makes local tribunal difficult in adopting the rule of 'impediment'. Local tribunal may unconsciously read the patterns of their domestic law into the general language of the CISG. This approach is inconsistent with the CISG's basic goal of international unification. And deliberate recourse to the exemption rules of a single domestic system would flagrantly violate the CISG. The UNIDROIT Principles make the matter of exemptions clear. They use the words 'force majeure'(Article 7.1.7) and 'hardship (Article 6.2.2) which can be understood definitely by local tribunals. The UNIDROIT Principles are expected to serve as instruments for the interpretation and gap-filling of the Article 79 CISG.

        • KCI등재

          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

          The purpose of this paper is to examine whether the fraud exception rule in documentary credit applies to the applicant or the third party, or not, though the statutory provisions and cases. The proper and reasonable interpretation of statutory provisions including UCC and UNCITRAL Convention is that the fraud rule is applicable if documents are forged or fraudulent, no matter who is responsible for them. However the typical case of United City Merchants v. Royal Bank of Canada has taken a different view. The courts (with the exception of English Court of Appeal) have hold that the fraud rule should not apply when the fraudulent party is the applicant or a third party other than the beneficiary. These decisions might damage the fundamental principle governing the application of the fraud rule. Thus this author insists that the determing factor in the application of the fraud rule is not the identity of the fraudulent party but the nature of the documents. No matter who commits the fraud, the fraud rule should be applied if the documents are forged or fraudulent.

        • KCI등재후보

          Considerations in the Choice of the "Seat of Arbitration" When Drafting Arbitration Clause in International Commercial Contract

          오원석(Oh Won Suk) 한국무역상무학회 2005 貿易商務硏究 Vol.28 No.-

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

          The purpose of this paper is to examine practical and legal considerations in the choice of the “Seat of Arbitration"". As the selection of the “Seat of Arbitration"" in an international commercial contract is vital both judicially and practically, so to speak, in terms of enforceability of award, judical interference in arbitration proceedings, relative convenience and expense, and the selection of arbitrators, the selection should be carefully considered and examined. In case of institutional arbitration, when the arbitration clause does not nominate the seat, the administrator or the secretariat of the institution or the arbitrator tribunal would usually determine the seat. On the contrary in case of ad hoc arbitration, Unless otherwise agreed by the parties, the “Seat of Arbitration"" would be determined according to the rules which are selected by parties or their arbitrators. To avoid confusing situation about the selection of the seat, this writer would like to recommend ICC or LCIA with each Standard Arbitration Clause. If the parties want any national arbitration institution because of the expenses incurred in international institution, AAA or CEPANI is recommendable in terms of the reputation, operating system and recognized performance. Specially ICC Court of Arbitration usually examines the award before it is issued, so the enforceablity would go up. Thus when the parties lay down the arbitration clause in their contract, they should confirm whether the “Seat of Arbitration"" is fixed or not. If not, at least they should examine the arbitration rules which would be applied, and know in advance how the seat be determined.

        • KCI등재

          [PART Ⅲ. INTERNATIONAL TRADE PAYMENT & DISPUTE RESOLUTION]Legal Sources of Fraud Rule and It's Standard in Documentary Credit

          오원석(Oh Won Suk),김재성(Kim Jae Seong) 한국무역상무학회 2003 貿易商務硏究 Vol.21 No.-

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

          Legal sources of fraud rule in documentary letter of credit, which have their origin in Sztejn Case can be traced to various rules or laws of international or domestic level ; URCG, URDG and ISP98 as ICC Rules, and UNCITRAL Convention as an international uniform law, and UCC as a domestic law and U.K. cases. Among them the combination of "material fraud" in UCC §5-109 and the detailed list of the types of misconduct in UNCITRAL Convention may provide the best solution or standard in real application of the fraud rule in letter of credit transaction.

        • KCI등재

          투자협정상 「내국민대우(National Treatment」조항 작성시 유의사항에 관한 연구

          오원석(Won-Suk Oh),서경(Kyung Seo),이경화(Jing-Hua Li) 한국무역상무학회 2011 貿易商務硏究 Vol.49 No.-

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

          Clauses on national treatment in the bilateral investment treaties including FTA state that, the foreign investor and his investments are 'accorded treatment no less favourable than that which the host state accords to its own investors'. Hence the purpose of the clause is to oblige a host state to make no negative differentiation between foreign and national investors when enacting and applying its rules and regulations and thus to promote the position of the foreign investor to the level accorded to nationals. As a matter of legal drafting technique, while the basic clause is generally the same, the practical implications differ due to more or less wide-ranging exemptions of certain business sectors. It is generally agreed that the application of the clause is fact-specific. This paper deals with problems in drafting clauses on national treatment in practice, introduces several considerations to adjust the level of national treatment, so it can be made more represents the interest of our country.

        • KCI등재

          수출금융에 있어서 채권양도계약의 준거법에 대한 소고

          오원석(Oh, Won Suk),한기문(Han, Ki Moon) 한국무역상무학회 2011 貿易商務硏究 Vol.49 No.-

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

          Among various export financing, forfaitng and factoring give a comfort to exporters as those special financing schemes are extended to them on a without recourse basis. This is good for the exporters in terms of financing and risk cover of buyer or LC issuing banks. To enjoy this benefit, the SME exporters should, however,, know the risks involved in sales contract. For example, if the export and importer set Korean law as governing law in the sales contract especially for open account exports, the exporter's receivables might be not welcome by factors according to provisions of Korean Conflict Law and it's application. Those regulations tell that the factor's position would be unstable when the sales contact limit exporter's assignment of receivables to the factor when the sales contract is subject to Korean law. Also the exporters should know related regulation of importer which might affect the assignment of receivables as well. This paper suggests the Korean exporters take internationally recognized agreement/convention such as UNI|DROIT Convention on International Factoring, UN Convention on the Assignment of Receivables in International Trade.

        • 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.

        • KCI등재

          國際商事契約에서 仲裁條項(Arbitration Clauses)의 主要要素와 實例

          오원석(Won-Suk Oh) 韓國貿易學會 2005 貿易學會誌 Vol.30 No.5

          The arbitration agreement in contract constitutes the only basis for the arbitrator's function. This agreement is called as Arbitration Clause in real business. The purpose of this paper is to examine the specific elements of the Arbitration Clause through arbitration laws, arbitration rules and the related cases, to introduce the standard clause which are recommended by the international institution and the individual countries, and to make the parties of international commercial contracts reflect them in their contracts. For these purposes, both parties should agree to submit the disputes to arbitration. The agreement may take the form of Arbitration Clause or a Submission to Arbitration. Especially in drafting the arbitration clause, careful attention should be given to the stipulation of the seat of arbitration, institution, scope of disputes, number of arbitrators, language and the laws applicable to the contract.(including substantive law and curial law) In fact, it is very difficult to expect the both parties to draft their Arbitration Clause by considering these elements seriously. Thus this author would like to recommend the famous and well known the Standard Clause which were drafted by international institution such as ICC and UNCITRAL or individual countries. If the parties want to draw up their Arbitration Clause, these standard clause may be models, with some variations which are, they think, suitable. In this case, It is very important for the parties to check the applicable law or rules which are effective at the place of arbitration. Above all the choice the seat of arbitration is the most important element for the parties, which entails costs and efforts. If the both parties do not agree on this matter, their places, which includes Paris or London are recommendable for in these cities, ICC or LCIA is located.

        • KCI등재

          國際代理店契約書 작성시 대리상의 주요의무와 실무상 留意点에 관한 小考

          오원석(Won-Suk Oh) 韓國貿易學會 2005 貿易學會誌 Vol.30 No.2

          The key word in International Agency Agreement is the word "Agent". Prior to drawing up the Agreement, both parties(Principal and Agent) should clearly define the concept, functions and characteristics of the word. The word "Agent" in Agency Agreement should be distinguished from the words, "commissionaire," "commission agent," or "del credere agent." Especially in case that the "exclusivity" is granted, the meaning of the word "exclusivity" should be clearly defined also. Even though the agent acts without authority or exceeds its authority the action may incur legal relationship between the principal and third party with later ratification or ostensible authority. Among the both parties', obligations, the Agent's main obligation is to procure orders for Principle from the customers ; likewise the Principal's main obligation is to pay commission to the Agent as a remuneration of its service. Specially in Commission Clause, it is very important to check the following points ; What is the criteria for calculating commission ? When is the commission earned ? What the effect of termination of the Agreement in paying the commission ? Whether the agent is entitled to commission on repeat orders ? What criteria are applied if the Agent fails to arrive guaranteed minimum quantity ? When making contract, It is very difficult to select the governing law as the international uniform law has not been effected yet. As an alternative for this vacancy this author would like to strongly recommend to lay down the Arbitration Clause in the agreement. The reason is that in arbitration, the arbitrators need not trace any specific domestic law applicable by virtue of the rules of private international law. Besides these points there are a lot of critical points to be careful. But this author can't examine all those points in detail with this limited pages. Thus when first of all drawing up Agency Agreement, It is advisable to use I.C.C. Model Form, by adding any agreed clauses or deleting any disagreed clauses, as a standardized text. In overseas operations of a form, Agency Agreement or Distributorship Agreement is frequently used. It is very important for the each party to distinguish the differences or advantages(or disadvantages) between them.

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