Korea and the CISG: Recent Cases

Abstract

As uniform application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is required, courts are to review and look to foreign case law on the CISG, and more and more courts have referred to foreign case law. The trade volume in goods of Republic of Korea (‘Korea’) exceeded 1.4 trillion US Dollars in 2022 with taking 6th place in the world, and this leads to the necessity of understanding Korean case law on the CISG. This paper analyses the various legal issues in the Supreme Court of Korea’s 2022 decision on the CISG, and reviews the relevant provisions of the CISG and Korean law. The Korean court found that the CISG prevails over Korean civil or commercial law in international sales contracts governed by the CISG and Korean law, and also found that foreign law is treated as ‘de facto law’, not as ‘question of fact’ in Korea, and thus the courts must investigate its contents ex officio. Furthermore, it was affirmed that the Korean private international law admits ‘freedom of choice’ or ‘party autonomy’ in a contract, and adopts ‘the most closely connected test’ in the absence of choice of law in a contract. The Korean court also found that as the CISG does not deal with statutes of limitations, it is left to the applicable domestic law determined under the private international law of the forum. CISG, Governing law, Korean case law, International sales contract, party autonomy, the Supreme Court of Korea, Statute of limitations