국제거래에서의 준거법의 묵시적 선택

Abstract

【Abstract】 Implied Choice of Law in the International Business Transactions Yoon, Namsoon International business transaction has tendency to be uniform in nature and the governing law such transactions and the choice of law solving the conflict between the legal system governing those activities confront the strong demand for unification. Concerning the choice of law governing the formation and validity (effect) of the international contracts such as sales contracts, each countries' law including the Rome convention of the European Union allows contracting parties to choose governing law expressly or impliedly. Implied choice of law by courts requires some factors relating to contracts inferring the parties' choice of law with reasonable certainty. The following factors might be considered as such factors : use of terminology related to a particular law, or use of a standard form; a choice of law clause in a previous course of dealing or in a related transaction between the parties; an arbitration or choice of court clause for a particular country; surrounding circumstances such as a previous course of dealings; conducts of the parties after conclusion of the contract. Interpreting Korean International Private Code, it is advisable to consider the debate and discussion on the choice of law in the international contracts including the implied choice of law in European Union, because this Code had been affected largely by the Rome convention and the Report on the Law Applicable to Contractual Obligations prepared by Giuliano and Lagarde.