Exploring Critical Factors that Affect the Application of Specific Performance as a Remedy for Breach of Contract in American and South Korean International Business Transactions

Abstract

In an ideal international business transaction, all parties involved would be familiar with the remedies available under the laws of foreign countries if they govern the validity and construction of the agreed-upon contract. But this is not often the case. In reality, with a noticeable increase of international business contracts, performance barriers impede the achievement of a contract's goals. Because of that, it is necessary to remove existing barriers or obstacles in order to enhance contract performance. This dissertation will comparatively evaluate three "critical factors" that affect the application of specific performance as a remedy for breach of contract in the United States and South Korea. This requires a grasp of the differences in legal systems (common law versus civil law), legal culture in the U.S. and South Korea, and the application of specific performance in each nation. As a whole, this dissertation suggests that law should be treated as a broader conception of culture. To be effective, legal personnel who cross national borders to establish contracts must have a vision that encompasses more than just an experience with law in a particular legal environment. They must be able to navigate the cultural peculiarities that color each nation's legal system. The critical factors as discussed in this paper serve as lenses through which all aspects of law must be perceived and as gateways of understanding through which every comparative legal scholar or attorney must pass to access the meaning of "foreign" law.