New Trends in Private International Law

During the past few decades, we have witnessed three approaches to overcome the legal disparities between trading countries:
- determining the individual governing law in accordance with the conflict of laws principle;
- unifying and harmonizing private international law into uniform rules and substantive laws under the auspices of ICC, UNCITRAL, UNIDROIT and various NGOs; and
- drafting model laws like the UNCITRAL Model Law on Electronic Commerce and promoting member countries to enact them.

Against this backdrop, the United Nations Convention on Contracts for the International Sale of Goods ("CISG") and the process by which it was adopted, established the benchmark for the unification of commercial law. The CISG, completed in 1980, merged civil and common law concepts and came into force in 1988 after a certain number of countries endorsed the treaty. Besides the CISG, the U.N. Limitations Convention and the UNIDROIT Principles of International Commercial Law, to name a few, have attempted to set cross-border legal norms and standards in the international business transactions.

Our Response to the New Trend

However, since the advent of computer-based commerce, there have emerged all-out efforts to establish uniform rules before national legal systems have been developed. As a consequence, the Model Law on Electronic Commerce has become a specimen legislation covering functional equivalents of paper-based writing and signature.

For the credit enhancement exemplified by the Uniform Rules for Demand Guarantees (ICC Publication No.458), the UNCITRAL prepared the U.N. Convention on Independent Guarantees and Stand-by Letters of Credit, which was adopted by the U.N. General Assembly in 1995 but remains still not effective as only two countries have ratified this treaty so far.

In this connection, two draft conventions underway at UNIDROIT and UNCITRAL deserve our attention as the probability of unification in the Korean Peninsula is mounting. They are to create security interests for commercial finance in moveable equipment and accounts receivable. The UCC-type security rights are regarded to be useful to enable the North Koreans with limited properties to borrow from the banks.

* This is an abstract from the article, which the Author presented before the Fall Conference of the Korean Research Institute of International Commerce and Law in Seoul on November 19, 1998.