A Comparative Study on Change Circumstances in International Commercial Contracts

다국어 초록 (Multilingual Abstract)

This Study attempts to compare and analyze on Principle of Change
Circumstances under th CISG, PICC and PECL which are covered
international commercial contract.
In many international commercial contract, time is very important because
delays in performance are sanctioned heavily by substantial penalty clauses.
When change in circumstances affects contract performance, the contract will
often not be suspended or terminated. Therefore, principle of change
circumstances is being prepared of fluidity of contract environment and its
effect in general.
Taking into consideration the problems relating to the renegotiation or
adaptation in the cases of radical change of circumstances where the CISG
applies, it is suggested that the contracting parties should make clear their
intentions, that is, whether they will provide for the possibility of renegotiation
where the price of goods has been altered by inserting a hardship clause or for
the possibility of mutual discharge from liability in the cases of economic
impossibility or hardship by inserting a force majeure clause.
Such provision will be desirable especially in situations where there is a long
term contract, the price of goods sold tends to fluctuate in the international
commerce, or where especially in contracts subjected to arbitration, the parties
subject their contract to legal sources or principles of supranational character.
Therefore, this study has shown that the hardship provisions in the CISG,
PICC and PECL has similarities to each a validity defense and an excuse
defense. it was provisions that CISG governs this issue in Article 79, PICC
Article 6.2.1, 6.2.2, 6.2.3 and PECL Article 6.111.

목차 (Table of Contents)

• Ⅰ. Introduction
• Ⅱ. Legal Standards of Change Circumstances and Force Majeure
• Ⅲ. Application of Principle of Change Circumstances under Norm of International Contract
• Ⅳ. Judicial Precedent of Principle of Change Circumstances
• Ⅴ. Summary and Conclusion
• REFERENCES
• ABSTRACT

참고문헌 (Reference)

1 심종석, "유럽 契約法原則(PECL)의 一般規定 및 契約의 成立에 관한 規定과 CISG, PICC 規定과의 比較硏究" 한국국제상학회 19 (19): 3-27, 2004

2 "www.unidroit.org/english/members/main.htm"

3 "www.lexmercatoria.org"

4 "www.jus.uio.no/lm/eu.contract.principles.parts.1.to.3.2002."

5 "U.S. District Court, Northern District of Illinois, East. Div"

6 Lando, O, "The principles of European Contract Law" Kluwer Law International 1995

7 Riedl,R, "The Work of the Lando-Commission from an Alternative Viewpoint" Kluwer Law International 2000

8 Bonell,M.J, "The UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law : Similar Rules for the Same Purposes" 1996

9 Sim D, "The Scope and Application of Good Faith in the Vienna Convention on Contracts for the International Sale of Goods" Pace Law, Pace Law School Institute of International Commercial Law 2001

10 Flambouras,D.P., "The Doctrines of Impossibility of Performance and clausula rebus sic stantibus in the 1980 Vienna Convention on Contracts for the International Sale of Goods and the Principles of European Contract Law: A Comparative Analysis"

11 Hae-kwan Heo, "Study on Exemptible Regulations for International Goods Trading" Ministry of Justice 61 : 2005

12 European Parliament Directorate General for Research, "Study of the systems of private law in the EU with regard to discrimination and the creation of a European Civil Code" 103 : 1999

13 Yang-ho Song, "Principle of European Contract Law and Korean Law" Korea Commercial Law Association 21 (21): 2002

14 "ICC International Court of Arbitration"

15 Kang-hyeon Ahn, "Hardship in UNIDROIT International Commercial Law" Korea Commercial Law Association 21 : 2002

16 Klein J, "Good Faith in International Transactions" Liverpool Law Review 1993

17 Lücke H.K, "Good Faith and Contractual Performance" The Law Book Company Ltd 1987

18 "German Arbitral Tribunal"

19 Joseph,M.P, "Force Majeure and Hardship under the UNIDROIT Principles of International Commercial Contracts" Tulane Journal of International Comparative Law 1997

20 Farnsworth E. A, "Farnsworth on Contracts" Aspen Publishers 1998

21 Farnsworth E. A, "Duties of Good Faith and Fair Dealing un der the UNIDROIT Principles,Relevant International Conventions and National Laws" 1995

22 Jong-seok Shim, "Comparative Legal Study on Nonperformance and Legal Relief under Principle of European Contract Law" Ministry Justice 62 : 2005

23 Sang-yong Kim, "Comparative Contract Law" Beobyeongsa 2002

24 Bonell, M. J, "An International Restatement of Contract Law" Transnational Juris 1997