국제화물운송계약에서 적용되는 준거법 결정에 관한 고찰

In terms of the international carriage of goods, the contracting parties often decide various international transport agreements in order to apply those rules to the transportations of land, inland waterway, sea or air. The international carriage of goods is largely conducted by more than two modes of transportations, but the unified agreements for this multimodal transportation have not yet been established. However, it is possible to arise some circumstances which may be applied by more than two transport agreements. For example, in case of transshipment which has a mix of various modes of transportation, it is uncertain of specifying a mode of transportation. Moreover, if there is a loss of or damage to the goods in the course of carriage; or if there is no explicit point of damage to the goods, it is so difficult to decide applicable agreements or the other rules governing these circumstances among contracting parties. In case of applying more than two agreements at the same time, conflicts of rules can occur. There might be a particular situation of non-applicability of any other transport agreements. Meanwhile, when the dispute occurs between parties whose places of business are located in different countries, deciding forum is one of the fundamental issues. This is because according to the forum, the applicable rules not only can be varied, but also the issue of indirect applicability arises, if applicable laws are decided as some rules of transport agreements. Besides, interpretation of the applicable rules alters depending on the forum. Consequently, the issue of forum shopping which the dispute party chooses the forum to their own advantage occurs. Therefore, discussion on the applicable laws as well as conflicts of jurisdictions is necessary for resolving these circumstances. One of the resolutions for it is the establishment of the unified transport agreement governing various modes of transportation. This would not be practicable as well as feasible in a complex reality with respect to the international trade, though. Therefore, it would be better to set specific terms of resolution for conflict of rules by contracting parties in advance. Forum shopping, paradoxically, would be a pioneer of the establishment of enhanced rules henceforth by means of comparing with different legal systems. The dispute parties should ultimately address the forum before taking legal actions so that they can choose the forum which produces the most beneficial results.