국제장기상거래계약 상 불가항력조항의 설계에 관한 연구: 불가항력의 정의와 관련 사태의 리스트를 중심으로 (A Practical Approach to the Drafting Schemes of Force Majeure Clauses in International Long-term Commercial Contracts: Focusing on the Definition and Related Event Lists)

서지정보

· 발행기관 : 한국무역통상학회
· 수록지 정보 : 무역통상학회지 / 23권 / 4호 / 151 ~ 185페이지
· 저자명 : 윤주영

초록

Today, global society is being faced a variety of large-scaled natural and man-made disasters. These disasters are occasionally external, unforeseeable, irresistible, and render performance under the contract impossible. As a traditional commercial doctrine, these kind of disasters are recognized as force majeure (FM), and performance of contractual obligation is excused as well as the related contract is terminated.
Such a FM is very important especially in case of international long-term contracts in the context of risk allocation between the contracting parties.
Normally, parties to a contract allocate their contractual risks by expressly defining what constitutes FM events. Although there are some essential elements in a FM clause, the FM definition clause including enumeration of FM events is the most important clause as a base and starting point to invoke the FM clause successfully.
The main concern of this paper is to examine, in both practical and legal aspects, how to draft well the FM definition (requirements) clause and illustrate the related event lists in FM clauses in international long-term commercial contracts. As a result of this study, the author emphasizes some important considerations to take into when businessmen draft the FM definition clause and enumerate the lists of illustrative events. It includes thorough understanding of individual national law and international uniform contractual law, as a governing law, model (standard) FM clauses of international organizations such as ICC, FIDIC etc. And also, it is desirable for the parties in practical aspects to make good use of their tailor-made clauses and catch-all clauses for well-drafted FM events.

영어초록

Today, global society is being faced a variety of large-scaled natural and man-made disasters. These disasters are occasionally external, unforeseeable, irresistible, and render performance under the contract impossible. As a traditional commercial doctrine, these kind of disasters are recognized as force majeure (FM), and performance of contractual obligation is excused as well as the related contract is terminated.
Such a FM is very important especially in case of international long-term contracts in the context of risk allocation between the contracting parties.
Normally, parties to a contract allocate their contractual risks by expressly defining what constitutes FM events. Although there are some essential elements in a FM clause, the FM definition clause including enumeration of FM events is the most important clause as a base and starting point to invoke the FM clause successfully.
The main concern of this paper is to examine, in both practical and legal aspects, how to draft well the FM definition (requirements) clause and illustrate the related event lists in FM clauses in international long-term commercial contracts. As a result of this study, the author emphasizes some important considerations to take into when businessmen draft the FM definition clause and enumerate the lists of illustrative events. It includes thorough understanding of individual national law and international uniform contractual law, as a governing law, model (standard) FM clauses of international organizations such as ICC, FIDIC etc. And also, it is desirable for the parties in practical aspects to make good use of their tailor-made clauses and catch-all clauses for well-drafted FM events.

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