• Title/Summary/Keyword: Trade Remedy

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An Effective Shipping Transport Operation Plan for the Pan-Yellow Sea Area: Focusing on the Introduction of an Incheon-China Container Liner Route (환황해권 해상운송의 효율적 운영방안-인천/중국 컨테이너항로 개설을 중심으로-)

  • 김홍섭
    • Journal of Korea Port Economic Association
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    • v.17 no.2
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    • pp.139-166
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    • 2001
  • Globalization and regionalization are major trends in the international economic system. The severe competition among countries has signalled the need for a new international trade system as prescribed by the WTO, which regulates international trade practices. Additionally, expanding the activities and role of the Pan-Yellow Sea area in the world has a very important function in terms of regional cooperation and logistics environment. In this paper, the trading conditions and shipping transport problems of the Pan-Yellow Sea area (North-East Asia) were investigated. Shipping transport conditions in the Pan-Yellow Sea area, particularly Korea-China routes, were surveyed as well. A new Incheon-China container liner route was suggested as a partial remedy to some of the shipping transport problems of the Pan-Yellow Sea Area (North-East Asia). The Incheon-China Container Liner route is more efficient than Pusan and Pyungtaek Ports or the car ferry route to China in terms of transport time and expense. The transport burden indicator which includes the time and expense of transport, can be a useful tool in comparing these routes. Accordign to the transport burden indicator, the Incheon-China Container Liner route is more efficient than the Pusan, Pyungtaek, or car ferry routes. To establish a successful liner route between the ports of Inchon and China, there is a need to prepare three measures that contain short-term medium-term and long-term strategies. Furthermore, these measures should be prepared and adopted in phases, in accordance with considerations of future conditions for shipping and logistics in the Pan-Yellow Sea area.

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Study on the Applicability of Most-Favored-Nation clause in Investor-State Dispute Settlement under China's BIT (중국 BIT상 최혜국대우조항의 투자자-국가 간 분쟁해결절차에 적용에 관한 연구)

  • Zhang, Man;Ha, Hyun-Soo
    • Asia-Pacific Journal of Business
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    • v.10 no.1
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    • pp.117-133
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    • 2019
  • This paper examines the most-favored-nation treatment clause on the BITs concluded by China and examines the attitudes of China on the application of the most-favored-nation treatment clause to the ISDs by period as the scope of arbitration increases. Moreover, this study pointed out the problems that would be exposed if the most-favored-nation treatment clause applies to ISDs and then also suggested solutions. The conclusions of this study are as follows; if the Chinese government strictly restricts the applicable expansion of the most-favored-nation treatment clause to the dispute settlement procedure by considering only the position of the capital importing country, it implies a contradiction against the development trend of the arbitration system related to international investment disputes. Of course, in order to protect the rights of Chinese investors investing abroad, expanding the applicability of the most-favored-nation treatment clause to the ISDs procedure unconditionally may have a negative impact under China's dual status of being a capital-importing country and a capital-exporting country. Therefore, China should clearly define the scope of application of the most-favored-nation treatment clause, the completion of the local remedy for the host country in cases of BIT to be concluded in the future or amended, and also clearly define that the most-favored-nation treatment clause should not be retroactively applied into BITs already concluded as an exception of applicability of the most-favored-nation treatment.

A Research on Industrial Trend Analysis of Materials & Components in Jeollanam-do

  • Jeong, Jung-Chae;Kim, Eun-Lee;Kim, Seong-Min;Park, Seong-Hyeon;Lee, Yong-Sang
    • Rubber Technology
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    • v.22 no.2
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    • pp.119-149
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    • 2021
  • Domestic materials & components industry is making a shift from quantitative growth to qualitative growth, while the paradigm of a future society is changing rapidly to energy, mobility, smartification and etc. The main features of materials & components industry are analyzed broadly based on three aspects that are: ① industry Status, ② the value chain structure, ③ the competitiveness. With regard to the national aspect, it is shown that the number of an export and a trade surplus increased consistently after the government advanced the policy on materials & components and Korea's trade deficit with Japan has been decreased. Moreover, the state's export ranking increased from tenth place in 2001 into sixth place in 2017, dedicating to the growth of a national economy. The analysis of the chain value indicates that specifications of an end product are set when the materials & components are combined with manpower, infrastructure and technologies. In terms of the competitiveness, it requires a long time and high costs to develop technologies on materials and it is important for components to have a process innovation and credibility wired. Following the industry structure with priority given on materials, Jeonnam Province accounts for 14.8% of national material production. As a result of analyzing Jeonnam's export competitiveness, it is measured that a serious polarization exists, revealing there are 6 major technology industries by 11 categories for materials & components, Jeonnam has presented 6 major materials & components considering the key industry and the new industry in future to remedy the mentioned problem so far, and plans to knock on the industry development through 10 different strategies.

A Comparative Study on Parallel Import between Korea and China- Focused on Intellectual Property Rights (한국과 중국의 병행수입제도에 관한 비교연구- 지적재산권을 중심으로)

  • Huang, Yi-Qing;Cho, Hyun-Sook
    • International Commerce and Information Review
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    • v.16 no.4
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    • pp.79-102
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    • 2014
  • A parallel importation is a non-counterfeit product imported from another country without the permission of the intellectual property owner. It is caused by price differences between countries. Therefore parallel importation are implication in issues of international trade and intellectual property rights(hereafter referred as IPR). This paper provides parallel importation issues of Korea and China under the IPR laws such as patent, trademarks, copyright and analyzes difference between two countries. In China, patent law regulates exhaustion rights which is based theory of a parallel import for the first time unlike trademark law and copyright law. On the other hands, Korea rules parallel importing under Korean customs regulations. In conclusion, two countries have no provisions that advocate a parallel import under IPR laws. This paper suggests some improvements to overcome the limitation of current regulation system and avoid trade friction between two countries. First of all, two countries should clearly make a rule about parallel import in IPR law such as definition of parallel importation, genuine goods, permission conditions, importing proses, penalty and remedy etc. Secondly, two countries should prohibit an abuse of a exclusive import agent's rights and manage a parallel importer not to cause consumer's complain about goods to expansion parallel imports. Finally, two countries should cooperate not to cause disputes about this issue with a communication channel.

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A Study on the Liabilities of Wrongful Dishonor of the Issuing Bank in UCC (미국 UCC상 신용장 발행은행의 부당한 지급불이행의 책임에 관한 연구)

  • Bae, Jung-Han
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.22
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    • pp.71-106
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    • 2004
  • Todays, L/C transactions in international trade are governed by UCP 500 and eUCP. But UCP 500 and eUCP do not cover all legal problem of L/C transactions. Therefore choice of laws in international L/C transactions are occurred. U.S.A. has an enacted law (UCC ${\S}5-Letter$ of Credit) to govern L/C transaction. But other countries has no special enacted law to govern L/C transaction. The reason is that there are difference between legal attitude of U.S.A. and other countries. American law considers L/C as a special device made by merchants. Therefore U.S.A. applies UCC ${\S}5-Letter$ of Credit instead of general contract law. UCC ${\S}5-Letter$ of Credit includes provisions of warranties, remedies, and so on that UCP 500 and eUCP do not include. But the liabilities of the Issuing Bank on the wrongful dishonor in L/C transaction is very important legal problem. First, this study is to justify concepts of honor and dishonor, and sufficient conditions for dishonor of the issuing bank. in UCC. Second, this study is to examine closely the liabilities of the Issuing Bank on the wrongful dishonor in L/C transaction. Third, this study is suggest distinctive features on the Liabilities to wrongful dishonor of the issuing bank in UCC ${\S}5-Letter$ of Credit and our trader's matters to be attended to L/C transactions governed by UCC.

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A Study on Reasonable Time in Article 39(1) of the CISG (CISG 제(第)39조(條) 제(第)1항(項)의 합리적'(合理的) 기간(期間)'에 관한 연구(硏究))

  • Heo, Kwang-Uk
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.34
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    • pp.27-52
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    • 2007
  • As in more than half of the litigated cases, non-conformity of the goods is alleged by the buyer and, hence, the question aries of whether the buyer has given notice within a reasonable time and is thus allowed to rely on the lack of conformity at all, differences in interpreting the meaning of "reasonable time" in Article 39(1) CISG endanger uniformity of international sales law in a core area. This uniform interpretation of the "reasonable time" in Article 39(1) CISG can, however, not be achieved by merely making recommendations to courts and arbitral tribunals that case law from other CISG jurisdictions should be considered. This can at best lead to confusing results. As you know, the determining of reasonable time is depending on the circumstances concerned with the particular case. So the term 'reasonable time' has proven too imprecise due to its flexibility without defined uniform scale to assist the practitioners in a uniform application of Art. 39(1). Therefore I suggested the factors that influenced the determining of the reasonable time. The factors currently influencing whether an Art. 39(1) notice is given within reasonable time in international practice are: any international trade usage and practices, the nature of the remedy chosen by buyer, the nature of the goods delivered and the mode of dealing with the goods.

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A Study on CIETEC Arbitration Case for the Relationship between Damages and Reduction under CISG (CISG상 손해배상과 대금감액의 관계에 관한 중국 CIETAC의 중재사례 연구)

  • Song, Soo-Ryun
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.51
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    • pp.133-158
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    • 2011
  • The purpose of this study is to analyze one of CIETEC(China International Economic and Trade Arbitration Commission) Award on the dispute arising from Cotton Sale Contact which deals with damages and reduction of the price. Especially this case focused on the effect of reduction of the price to damages. The purpose of damages is to place the aggrieved party in as good a position as if the other party had properly performed the contract. So court costs and attorney's fee should be regarded as the loss, because these are caused by consequence of the breach which is recoverable. With the same reason, overpaid taxes should also regard as the loss. It is not impossible, however, to claim both damages and reduction of the price for same loss at the same time. It means buyer could not claim damages for the same loss, once he already claimed reduction of the price. So Korean companies should consider which remedy is proper to himself under the circumstances. He should choose reduction of the price when market price is down. In case of rising market price, he should consider follows: first, it is better to choose damages based on current price(Art.76), if upswing of non-conformity price is higher then upswing of market price. Second, it is better to choose general rule for measuring damages(Art.74), if upswing of market price is higher then upswing of non-conformity price.

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Requisites for Adopting Electronic Payment Systems in International Trade Transactions (국제무역거래에서의 전자결제시스템 도입에 따른 과제)

  • Kyung, Yeun-Beom
    • The Journal of Information Technology
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    • v.6 no.4
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    • pp.147-162
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    • 2003
  • The technique of information-communication rapidly developed has made it possible for us to do business through Internet. Electronic commerce was increased rapidly by the explosive development of the inter and communication revolution. E-Commerce has created a fundamentally new way of conduction and will change drastically accepted ways of doing business. Normally international trade has been formulated in a way that exporters and importers meet face-to-face and contract and pay by letter of credits. For the global electronic commerce to vitalized, the outstanding matters should encourage the creation of infrastructure of information security and new models in the field of electronic payment systems, electronic commerce agreement for remedy, adapting electronic date interchange in transport documents and negotiability of electronic bills of lading. The payment systems such as electronic fund transfers, tradecard system and electronic letters of credits issued by SWIFT system permit the parties concerned(sellers, buyers ad service providers) to settle payment electronically. Still they are many limitations for complete international electronic transactions. The following measures have to be taken to vitalize electronic trade transactions. It is needed to acquire information security such as authenticity, integrity, non-repudiation and confidentiality. All kinds of documents need to be replaced by electronic date exchange and the legal structure of international convention, national law for electronic payment systems have to be completed. Also a detailed guide of the banking operation and developing rules for electronic letters of credits need to be provided to adopt eUCP rules for the electronic presentation of documents.

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A Comparative Study on Marine Transport Contract and Marine Insurance Contract with Reference to Unseaworthiness

  • Pak, Jee-Moon
    • Journal of Korea Trade
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    • v.25 no.2
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    • pp.152-177
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    • 2021
  • Purpose - This study analyses the excepted requirement and burden of proof of the carrier due to unseaworthiness through comparison between the marine transport contract and marine insurance contract. Design/methodology - This study uses the legal analytical normative approach. The juridical approach involves reviewing and examining theories, concepts, legal doctrines and legislation that are related to the problems. In this study a literature analysis using academic literature and internet data is conducted. Findings - The burden of proof in case of seaworthiness should be based on presumed fault, not proved fault. The burden of proving unseaworthiness/seaworthiness should shift to the carrier, and should be exercised before seeking the protections of the law or carriage contract. In other words, the insurer cannot escape coverage for unfitness of a vessel which arises while the vessel is at sea, which the assured could not have prevented in the exercise of due diligence. The insurer bears the burden of proving unseaworthiness. The warranty of seaworthiness is implied in hull, but not protection and indemnity policies. The 2015 Act repeals ss. 33(3) and 34 of MIA 1906. Otherwise the provisions of the MIA 1906 remain in force, including the definition of a promissory warranty and the recognition of implied warranties. There is less clarity about the position when the source of the loss occurs before the breach of warranty but the actual loss is suffered after the breach. Nonetheless, by s.10(2) of the 2015 Act the insurer appears not to be liable for any loss occurring after the breach of warranty and before there has been a remedy. Originality/value - When unseaworthiness is identified after the sailing of the vessel, mere acceptance of the ship does not mean the party waives any claims for damages or the right to terminate the contract, provided that failure to comply with the contractual obligations is of critical importance. The burden of proof with regards to loss of damage to a cargo caused by unseaworthiness is regulated by the applicable law. For instance, under the common law, if the cargo claimant alleges that the loss or damage has been caused by unseaworthiness, then he has the burden of proof to establish the followings: (i) that the vessel was unseaworthy at the beginning of the voyage; and that, (ii) that the loss or damage has been caused by such unseaworthiness. In other words, if the warranty of seaworthiness at the inception of the voyage is breached, the breach voids the policy if the ship owner had prior knowledge of the unseaworthy condition. By contrast, knowingly permitting the vessel to break ground in an unseaworthy condition denies liability only for loss or damage proximately caused by the unseaworthiness. Such a breach does not, therefore, void the entire policy, but only serves to exonerate the insurer for loss or damage proximately caused by the unseaworthy condition.

A Comparative Study on Requirements for the Buyer's Right to Withhold Performance for the Seller's Actual Non-Performance under the CISG and the CESL

  • Lee, Byung-Mun;Kim, Dong-Young
    • Journal of Korea Trade
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    • v.24 no.8
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    • pp.101-120
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    • 2020
  • Purpose - The buyer's right to withhold performance is a useful and important self-help remedy to protect himself from the seller's breach of contract, and it is also the coercive means to induce the seller to perform his part of contract. However, the buyer's exercise of such a right often exposes himself to the risk of breaching the contract. This is generally due to his ignorance when he is entitled to the right and also uncertainties inherent in the law. Therefore, the purpose of this paper is to examine what the requirements should be fulfilled before the buyer exercises the right for the seller's actual breach of contract. Design/methodology - In order to achieve the purposes of the study, it executes a comparative study of the rules as to the requirements for the buyer's right to withhold performance for the seller's actual non-performance under the CISG and the CESL. It mainly focuses on performance due, the seller's non-performance, the buyer's readiness to perform and the requirement of notice. Findings - The main findings of this comparative study can be summarized as follows: Although the CISG has no expressive provision for the buyer's general right to withhold performance for the seller's actual non-performance, it may be inferred from the general principles the CISG underlies, synallagmatic nature of the contract. In addition, it can be drawn by analogy from relevant provisions of the CISG. On the other hand, the CESL expressively provides that the buyer has a general right to withhold performance where the seller fails to tender performance or perform the contract. Therefore, it seems that the position of CESL is rather easier and more apparent to allow the buyer to withhold performance for the seller's non-performance. Originality/value - Most of the existing studies on the right to withhold performance under the CISG have centered on the right to withhold performance for an anticipatory breach of contract. On the other hand, there have been few prior studies on the right to withhold performance for the actual nonperformance during a contractual period of performance. Therefore, this paper examined the requirements for the buyer's right to withhold performance under the CISG and the CESL in a comparative way for the seller's actual breach of obligation. In this conclusion, it may provide practical and legal considerations and implications for business people who are not certain about the right to withhold performance.