국제물품매매계약의 성립에 관한 서식분쟁 해결의 타당한 접근법

A Proper Approach of the Battle of the Forms on the Formation of Contract in the International Sale of Goods

&nbsp;&nbsp;Standard form contracts have been commonly used in international commercial transactions since at least the late nineteenth century. In a typical commercial transaction for the sale of goods, the transaction is not confined to one standard form contract. The battle of forms that result from the exchange of standard form contracts. There are two main questions that have to be solved in the battle of forms. That is, Is there a contract? and If there is, what are the terms of the contract?<BR>&nbsp;&nbsp;There are many methods to solve in the battle of forms transactions, including mirror image rule, first shot doctrine, last shot doctrine, CISG and knock-out rule, etc. When dispute arise on the formation of contract in the International sale of goods, some courts apply the last shot rule, some the knock-out rule and some fabricate alternative solutions. The different solutions bring uncertainty in international transactions whereby decisions depend on the judge handling the particular case.<BR>&nbsp;&nbsp;In recent, the UNIDROIT Principle and PECL have explicit provisions that deal with the issue of battle of forms. Both incorporate the knock-out rule in the determining the terms of the contract. Therefore, I suggest that a proper approach to resolve the battle of the forms is the knock-out rule and code&quot;s gap-fillers applying.