The UCC or the CISG: Factors Affecting the Choice for Contracts between U.S. and South Korean Parties
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After heated political theatre in both countries the Korea-U.S. Free Trade Agreement was ratified by both the U.S. Congress and the Korean National Assembly in late 2011. There will be a significant increase in trade under the terms of this agreement which will cause an increase in both competition and interaction between the merchants of both countries. As legal issues should not be a hindrance to business, Korean and U.S. merchants and their respective advisors will need to acquire a familiarity with the U.N. Convention on Contracts for the International Sale of Goods (“Convention” or “CISG”). Further, Korean merchants and their advisors will need to become familiar with the domestic law of the United States as reflected in the Uniform Commercial Code (“UCC”) while U.S. merchants and their advisors will need to gain familiarity with the extensive differences between U.S. and Korean court procedures, especially as regards Korean evidentiary rules. This article gives a brief history of the Convention and discusses Article 8 as it applies to extrinsic evidence. The article then discusses civil procedure rules and evidence rules in the Republic of Korea and how these rules differ from the U.S. rules of evidence. The bulk of the article analyzes the differences between the CISG Article 8 and the UCC parol evidence rule with emphasis on exploring how differences in the two uniform laws and the different evidentiary rules of the U.S. and South Korea affects disputes that arise between merchants of the two countries. This article aims at assisting both U.S. and Korean attorneys in advising their respective clients when interacting with their counterparts.
Abstract
After heated political theatre in both countries the Korea-U.S. Free Trade Agreement was ratified by both the U.S. Congress and the Korean National Assembly in late 2011. There will be a significant increase in trade under the terms of this agreement which will cause an increase in both competition and interaction between the merchants of both countries. As legal issues should not be a hindrance to business, Korean and U.S. merchants and their respective advisors will need to acquire a familiarity with the U.N. Convention on Contracts for the International Sale of Goods (“Convention” or “CISG”). Further, Korean merchants and their advisors will need to become familiar with the domestic law of the United States as reflected in the Uniform Commercial Code (“UCC”) while U.S. merchants and their advisors will need to gain familiarity with the extensive differences between U.S. and Korean court procedures, especially as regards Korean evidentiary rules. This article gives a brief history of the Convention and discusses Article 8 as it applies to extrinsic evidence. The article then discusses civil procedure rules and evidence rules in the Republic of Korea and how these rules differ from the U.S. rules of evidence. The bulk of the article analyzes the differences between the CISG Article 8 and the UCC parol evidence rule with emphasis on exploring how differences in the two uniform laws and the different evidentiary rules of the U.S. and South Korea affects disputes that arise between merchants of the two countries. This article aims at assisting both U.S. and Korean attorneys in advising their respective clients when interacting with their counterparts.
참고문헌 (35)
- Anderson, Camilla Baasch, "Reasonable Times in Article 39(1) of the CISG – Is Article 39(1) Truly a Uniform Provision; REVIEW OF THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 1998" (1999), Kluwer Law International
- Calamari, John D., "CONTRACTS" (1998), West Publishing Group
- California, "California Code of Civil Procedure" (1999), West Publishing Group
- California, "West’s California Reporter" (1960), West Publishing Company
- California Supreme Court, "California State Reports", West Publishing Co.
- Chambre de commerce internationale, "INCOTERMS 2010: ICC RULES FOR THEUSE OF DOMESTIC AND INTERNATIONAL TRADE TERMS: ENTRY INTO FORCE 1 JANUARY 2011" (2010), ICC Publications
- Cook, V. Susanne, "CISG: From the Perspective of a Practitioner, The Journal of Law and Commerce", University of Pittsburgh School of Law
- Eorsi, G., "Problems of Unifying Law on the Formation of Contracts for the International Sales of Goods", The American Journal of Comparative Law (1989), American Society of Comparative Law
- Farnsworth, E. Allen, "FARNSWORTH ON CONTRACTS" (2004), Aspen Publishers
- Florida Supreme Court, "Florida State Reports", West Publishing Co.
- Gabriel, Henri D., "Battle of the Forms: A Comparison of the United Nations Convention for the Sale of Goods and the Uniform Commercial Code, The Business Lawyer" (1946), American Bar Association
- Garro, Alejandro M., "Reconciliation of Legal Tradition in the U.N. Convention on Contracts for the International Sale of Goods, International Lawyer" (1989), Section of International Law, American Bar Association
- Hoare, James, "KOREA: AN INTRODUCTION" (1988), Rutledge
- Honnold, John O., "Sales Convention: Can Uniform Words Give Us Uniform Results?" (1991), JURIDISK TIDSSKRIFT
- Honnold, John O., "UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION" (1982), Kluwer Law and Taxation Publishers
- Horn, Norbert, "THE TRANSNATIONAL LAW OF INTERNATIONAL COMMERCIAL TRANSACTIONS", Kluwer Law International (1982)
- Kawasaki, Yutaka, "Was the 1910 Annexation Treaty Between Korea and Japan Concluded Legally?", Murdoch University Journal of Law (1996), Murdoch University School of Law
- Massachusetts Supreme Court, "Massachusetts State Reports", West Publishing Co.
- Murray, John, "The Neglect of CISG: A Workable Solution", The Journal of Law and Commerce, University of Pittsburgh School of Law
- Ohio Supreme Court, "Ohio State Reports", West Publishing Co.
- Republic of Korea, "COURT ORGANIZATION ACT OF 1949", Republic of Korea
- Republic of Korea, "Minbub (Civil Code of Korea)" (2002), Republic of Korea
- Republic of Korea, "Minsa So Seong Beop (Code of Civil Procedure)" (2002), Republic of Korea
- "Restatement (Second) of Contracts" (1982), Cornell Law Association
- Rider, Caroline V., "Who Bears the Cost of Misunderstanding?", New York State Bar Journal (1989), New York State Bar Association
- Robinson, Michael Edson, "KOREA’S TWENTIETH-CENTURY ODYSSEY" (2007), University of Hawaii Press
- Rossett, A., "Critical Reflections on the United Nations Convention on Contracts for the International Sales of Goods", Ohio State Law Journal (1984), Ohio State University, College of Law
- Schmid, Andre, "KOREA BETWEEN EMPIRES, 1895-1919" (2002), Columbia University Press
- Song, Sang-Hyun, "INTRODUCTION TO THE LAW AND LEGAL SYSTEM OF KOREA" (1983), Kyung Mun Sa Pub. Co
- "United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, S. Treaty Doc. No. 98-99 (1983), 1489 U.N.T.S. 3. 52 Federal Register 6262, 6264-6280", ~ (1987)
- United States Superintendent of Documents, "United States Code", U.S. G.P.O., Supt. of Docs.
- United States Superintendent of Documents, "United States Supreme Court Reports", U.S. G.P.O., Supt. of Docs
- White, James J., "UNIFORM COMMERCIAL CODE", pp.2010, Thomson
- Williston, Samuel, "THE LAW OF CONTRACTS" (1922), Baker, Voorhis & Co
- Winship, Peter, "Commentary on Professor Kastely’s Rhetorical Analysis", Northwestern Journal of International Law and Business (1988), Northwestern University School of Law